UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2004
Commission File No. 0-25551
Iowa 94-2213782
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
666 Grand Avenue, Des Moines, Iowa 50309
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(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code) (515) 242-4300
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Securities registered pursuant to Section 12(b) of the Act: N/A
Securities registered pursuant to Section 12(g) of the Act: N/A
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [x] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [x]
All of the shares of MidAmerican Energy Holdings Company are held by a limited group of private investors. As of March 31, 2004, 9,081,087 shares of common stock were outstanding.
TABLE OF CONTENTS
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements 3
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 18
Item 3. Quantitative and Qualitative Disclosures About Market Risk 27
Item 4. Controls and Procedures. 27
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 28
Item 2. Changes in Securities, Use of Proceeds and Issuer Purchases of
Equity Securities 28
Item 3. Defaults Upon Senior Securities 28
Item 4. Submission of Matters to a Vote of Security Holders 28
Item 5. Other Information 28
Item 6. Exhibits and Reports on Form 8-K 28
SIGNATURES 29
EXHIBIT INDEX 30
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
INDEPENDENT ACCOUNTANTS' REPORT
Board of Directors and Stockholders
MidAmerican Energy Holdings Company
Des Moines, Iowa
We have reviewed the accompanying consolidated balance sheet of MidAmerican Energy Holdings Company and subsidiaries (the "Company") as of March 31, 2004, and the related consolidated statements of operations and cash flows for the three-month periods ended March 31, 2004 and 2003. These interim financial statements are the responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the American Institute of Certified Public Accountants. A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with auditing standards generally accepted in the United States of America, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should be made to such consolidated interim financial statements for them to be in conformity with accounting principles generally accepted in the United States of America.
We have previously audited, in accordance with auditing standards generally accepted in the United States of America, the consolidated balance sheet of MidAmerican Energy Holdings Company and subsidiaries as of December 31, 2003, and the related consolidated statements of operations, stockholders' equity, and cash flows for the year then ended (not presented herein); and in our report dated February 9, 2004 (March 1, 2004 as to Notes 2, 5 and 20), we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated balance sheet as of December 31, 2003 is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.
/s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Des Moines, Iowa April 30, 2004 |
MIDAMERICAN ENERGY HOLDINGS COMPANY
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands)
AS OF
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MARCH 31, DECEMBER 31,
2004 2003
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(UNAUDITED)
ASSETS
Current assets:
Cash and cash equivalents ........................................................ $ 977,830 $ 660,213
Restricted cash and short-term investments ....................................... 141,573 55,281
Accounts receivable, net ......................................................... 694,823 666,063
Inventories ...................................................................... 69,048 123,301
Other current assets ............................................................. 269,958 371,855
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Total current assets ........................................................... 2,153,232 1,876,713
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Properties, plants and equipment, net .............................................. 11,355,046 11,180,979
Goodwill ........................................................................... 4,327,395 4,305,643
Regulatory assets .................................................................. 532,955 512,549
Other investments .................................................................. 236,953 228,896
Equity investments ................................................................. 234,395 234,370
Deferred charges and other assets .................................................. 840,918 829,039
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TOTAL ASSETS ....................................................................... $ 19,680,894 $ 19,168,189
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LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ................................................................. $ 317,970 $ 345,237
Accrued interest ................................................................. 188,531 189,635
Accrued taxes .................................................................... 115,811 112,823
Other accrued liabilities ........................................................ 513,976 443,531
Short-term debt .................................................................. 2,976 48,036
Current portion of long-term debt ................................................ 455,345 500,941
Current portion of parent company subordinated debt .............................. 100,000 100,000
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Total current liabilities ...................................................... 1,694,609 1,740,203
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Other long-term accrued liabilities ................................................ 1,900,287 1,827,633
Parent company senior debt ......................................................... 3,028,679 2,777,878
Parent company subordinated debt ................................................... 1,772,741 1,772,146
Subsidiary and project debt ........................................................ 6,630,390 6,674,640
Deferred income taxes .............................................................. 1,550,339 1,433,144
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Total liabilities ................................................................ 16,577,045 16,225,644
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Deferred income .................................................................... 67,730 69,201
Minority interest .................................................................. 9,863 9,754
Preferred securities of subsidiaries ............................................... 90,422 92,145
Commitments and contingencies (Note 7)
Stockholders' equity:
Zero-coupon convertible preferred stock - authorized 50,000 shares, no par value,
41,263 shares outstanding ........................................................ - -
Common stock - authorized 60,000 shares, no par value, 9,081 and 9,281 shares
issued and outstanding at March 31, 2004 and December 31, 2003, respectively...... - -
Additional paid-in capital ......................................................... 1,950,267 1,957,277
Retained earnings .................................................................. 1,133,827 999,627
Accumulated other comprehensive loss, net .......................................... (148,260) (185,459)
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Total stockholders' equity ....................................................... 2,935,834 2,771,445
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TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY ......................................... $ 19,680,894 $ 19,168,189
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The accompanying notes are an integral part of these financial statements.
MIDAMERICAN ENERGY HOLDINGS COMPANY
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands)
THREE MONTHS
ENDED MARCH 31,
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2004 2003
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(UNAUDITED)
REVENUE:
Operating revenue ..................................... $ 1,745,255 $ 1,576,885
Income on equity investments .......................... 3,468 7,455
Interest and dividend income .......................... 7,169 13,871
Other income .......................................... 8,361 17,424
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Total revenue ....................................... 1,764,253 1,615,635
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COSTS AND EXPENSES:
Cost of sales ......................................... 741,991 684,431
Operating expense ..................................... 378,654 356,493
Depreciation and amortization ......................... 170,283 141,849
Interest expense ...................................... 238,402 186,845
Less interest capitalized ............................. (3,608) (15,532)
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Total costs and expenses ............................ 1,525,722 1,354,086
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INCOME BEFORE PROVISION FOR INCOME TAXES ................ 238,531 261,549
Provision for income taxes ............................ 88,588 73,000
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INCOME BEFORE MINORITY INTEREST AND PREFERRED DIVIDENDS . 149,943 188,549
Minority interest and preferred dividends ............. 2,753 57,913
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NET INCOME AVAILABLE TO COMMON AND PREFERRED STOCKHOLDERS $ 147,190 $ 130,636
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The accompanying notes are an integral part of these financial statements.
MIDAMERICAN ENERGY HOLDINGS COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
THREE MONTHS
ENDED MARCH 31,
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2004 2003
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(UNAUDITED)
Cash flows from operating activities:
Net income ................................................................. $ 147,190 $ 130,636
Adjustments to reconcile net income to cash flows from operating activities:
Distributions less income on equity investments .......................... (1,014) (3,541)
Loss on other items ...................................................... 10,985 2,067
Depreciation and amortization ............................................ 170,283 141,849
Amortization of regulatory assets and liabilities and other .............. 149 (9,709)
Amortization of deferred financing costs ................................. 5,115 9,555
Provision for deferred income taxes ...................................... 57,264 58,923
Other .................................................................... 21,820 5,030
Changes in other items:
Accounts receivable and other current assets ........................... 22,477 32,367
Accounts payable and other accrued liabilities ......................... 55,084 20,830
Deferred income ........................................................ (1,307) (2,214)
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Net cash flows from operating activities ............................. 488,046 385,793
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Cash flows from investing activities:
Acquisitions, net of cash acquired ....................................... (807) (36,575)
Proceeds from note receivable ............................................ 97,000 -
Capital expenditures relating to operating projects ...................... (159,700) (133,845)
Construction and other development costs ................................. (51,651) (244,033)
Other .................................................................... 3,486 (29,547)
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Net cash flows from investing activities ............................... (111,672) (444,000)
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Cash flows from financing activities:
Proceeds from subsidiary and project debt ................................ 10,584 287,572
Proceeds from parent company senior debt ................................. 249,765 -
Repayments of subsidiary and project debt ................................ (169,622) (211,268)
Net repayment of subsidiary short-term debt .............................. (45,061) (8,850)
Purchase and retirement of common stock .................................. (20,000) -
Increase in restricted cash and investments .............................. (86,010) (21,887)
Redemption of preferred securities of subsidiaries ....................... (1,724) (294)
Other .................................................................... (3,531) 28,276
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Net cash flows from financing activities ............................... (65,599) 73,549
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Effect of exchange rate changes .......................................... 6,842 (6,904)
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NET CHANGE IN CASH AND CASH EQUIVALENTS .................................... 317,617 8,438
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD ........................... 660,213 844,430
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CASH AND CASH EQUIVALENTS AT END OF PERIOD ................................. $ 977,830 $ 852,868
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SUPPLEMENTAL DISCLOSURE:
Interest paid, net of interest capitalized ............................... $ 225,671 $ 172,181
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Income taxes (refunded) paid ............................................. $ (74,620) $ 280
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The accompanying notes are an integral part of these financial statements.
MIDAMERICAN ENERGY HOLDINGS COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. GENERAL
In the opinion of management of MidAmerican Energy Holdings Company and subsidiaries ("MEHC" or the "Company"), the accompanying unaudited consolidated financial statements contain all adjustments (consisting of normal recurring accruals) necessary to present fairly the financial position as of March 31, 2004, and the results of operations and of cash flows for the three-month periods ended March 31, 2004 and 2003. The results of operations for the three-month period ended March 31, 2004 are not necessarily indicative of the results to be expected for the full year.
The unaudited consolidated financial statements include the accounts of MidAmerican Energy Holdings Company and its wholly and majority-owned subsidiaries excluding certain finance subsidiaries for which adoption of Financial Accounting Standards Board ("FASB") Interpretation No. 46R ("FIN 46R"), "Consolidation of Variable Interest Entities - An Interpretation of ARB No. 51" as of October 1, 2003 required deconsolidation. Other investments and corporate joint ventures, where the Company has the ability to exercise significant influence, are accounted for under the equity method. Investments where the Company's ability to influence is limited are accounted for under the cost method of accounting.
The Company's operations are organized and managed on seven distinct platforms:
MidAmerican Energy Company ("MidAmerican Energy"), Kern River Gas Transmission
Company ("Kern River"), Northern Natural Gas Company ("Northern Natural Gas"),
CE Electric UK Funding ("CE Electric UK") (which includes Northern Electric
Distribution Ltd ("NED") and Yorkshire Electricity Distribution plc ("YED")),
CalEnergy Generation-Domestic, CalEnergy Generation-Foreign and HomeServices of
America, Inc. ("HomeServices").
Certain amounts in the prior year financial statements and supporting note disclosures have been reclassified to conform to the current year presentation. Such reclassifications did not impact previously reported net income or retained earnings.
The unaudited consolidated financial statements should be read in conjunction with the consolidated financial statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 2003.
2. NEW ACCOUNTING PRONOUNCEMENTS
In December 2003, the FASB issued FIN 46R which served to clarify guidance in FASB Interpretation No. 46 "Consolidation of Variable Interest Entities, an Interpretation of Accounting Research Bulletin No. 51" ("FIN 46"), and provided additional guidance surrounding the application of FIN 46. The Company adopted and applied the provisions of FIN 46R, related to certain finance subsidiaries, as of October 1, 2003. The adoption required the deconsolidation of certain finance subsidiaries, which resulted in the amounts previously classified as mandatorily redeemable preferred securities of subsidiary trusts, in the amount of $1.9 billion, being reclassified to parent company subordinated debt in the accompanying consolidated balance sheet. In addition, the associated amounts previously recorded in minority interest and preferred dividends are now recorded as interest expense in the accompanying consolidated statement of operations. For the quarter ended March 31, 2004, the Company has recorded $50.2 million of interest expense related to these securities. In accordance with the requirements of FIN 46R, no amounts prior to adoption on October 1, 2003 have been reclassified. The amount included in minority interest and preferred dividends related to these securities for the quarter ended March 31, 2003 was $55.1 million. The Company adopted the provisions of FIN 46R related to non-special purpose entities in the first quarter of 2004. The Company has considered the provisions of FIN 46R for all subsidiaries and their related power purchase, power sale, or tolling agreements. Factors considered in the analysis include the duration of the agreements, how capacity and energy payments are determined, source and payment terms for fuel, as well as responsibility and payment for operating and maintenance expenses. As a result of these considerations, the Company has determined its power purchase, power sale and tolling agreements do not represent significant variable interests. Accordingly, the Company has concluded that it is appropriate to continue to consolidate its power plant projects.
In January 2004, the FASB issued FASB Staff Position No. 106-1 ("FSP 106-1"), "Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003". FSP 106-1 permits a sponsor of a postretirement health care plan that provides a prescription drug benefit to make a one-time election to defer accounting for the effects of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (the "Medicare Act"), which was signed into law on December 8, 2003. The Medicare Act introduced a prescription drug benefit under Medicare, as well as a
federal subsidy to sponsors of retiree health care benefit plans that provide a benefit that is at least actuarially equivalent to Medicare. These provisions of the new law will affect accounting measurements of the Company's postretirement benefit obligation and expense. As permitted by FSP 106-1, the Company made a one-time election to defer accounting for the effect of the Medicare Act until specific authoritative guidance is issued. Therefore, the amounts included in the consolidated financial statements related to the Company's postretirement benefit plans do not reflect the effects of the Medicare Act.
3. PROPERTIES, PLANTS AND EQUIPMENT, NET
Properties, plants and equipment, net comprise the following (in thousands):
MARCH 31, DECEMBER 31,
2004 2003
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Utility generation and distribution systems .... $ 9,445,339 $ 9,154,054
Interstate pipelines' assets ................... 3,517,298 3,483,672
Independent power plants ....................... 1,396,906 1,395,782
Mineral and gas reserves and exploration assets 571,020 554,780
Utility non-operational assets ................. 440,771 429,228
Other assets ................................... 150,385 146,286
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Total operating assets ....................... 15,521,719 15,163,802
Accumulated depreciation and amortization ...... (4,446,268) (4,260,643)
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Net operating assets ......................... 11,075,451 10,903,159
Construction in progress ....................... 279,595 277,820
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Properties, plants and equipment, net ........ $ 11,355,046 $ 11,180,979
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4. INVESTMENTS
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Equity Investment in CE Generation
The equity investment in CE Generation LLC ("CE Generation") at March 31, 2004 and December 31, 2003 was $210.3 million and $209.3 million, respectively. During the three-month periods ended March 31, 2004 and 2003, the Company recorded income from its investment in CE Generation of $1.2 million and $2.3 million, respectively.
ROP Note
On October 15, 2003, CE Casecnan Water and Energy Company, Inc. ("CE Casecnan"), an indirect, majority-owned subsidiary of the Company, closed a transaction settling the CE Casecnan NIA Arbitration, which arose from a Statement of Claim made by CE Casecnan, on August 19, 2002, against the Republic of the Philippines ("ROP") National Irrigation Administration ("NIA"). In connection with the settlement, NIA delivered to CE Casecnan a ROP $97.0 million 8.375% Note due 2013 (the "ROP Note"), which contained a put provision granting CE Casecnan the right to put the ROP Note to the ROP for a price of par plus accrued interest for a 30-day period commencing on January 14, 2004. The ROP Note was included in the other current assets on the December 31, 2003 consolidated balance sheet.
On January 14, 2004, CE Casecnan exercised its right to put the ROP Note to the ROP and, in accordance with the terms of the put option, CE Casecnan received $99.2 million (representing $97.0 million par value plus accrued interest) from the ROP on January 21, 2004.
5. DEBT ISSUANCES, REDEMPTIONS AND STOCK TRANSACTIONS
On February 12, 2004, MEHC completed the sale of $250 million in aggregate principal amount of its 5.00% senior notes due February 15, 2014. The proceeds were used to satisfy a demand made by its affiliate, Salton Sea Funding Corporation ("Funding Corporation"), for the amount remaining on MEHC's guarantee of the Funding Corporation's Series F Bonds and for other general corporate purposes.
On March 1, 2004, Funding Corporation completed the redemption of an aggregate principal amount of approximately $136.4 million of its 7.475% Senior Secured Series F Bonds due November 30, 2018 ("Series F Bonds"), pro rata, at a redemption price of 100% of such aggregate outstanding principal amount, plus accrued interest to the date of redemption. Funding Corporation also made a demand on MEHC for the full amount remaining on MEHC's guarantee of the Series F
Bonds in order to fund the redemption. MEHC made the requisite payment and, as a result, it has no further payment obligation under the guarantee. The Company had a non-cash loss recorded in interest expense of $10.8 million as a result of the redemption of the Series F Bonds.
On January 6, 2004, the Company purchased two hundred thousand shares of common stock owned by the Company's chairman and chief executive officer, for an aggregate purchase price of $20.0 million.
6. REGULATORY MATTERS
MidAmerican Energy
Under two settlement agreements approved by the Iowa Utilities Board ("IUB"), MidAmerican Energy's Iowa retail electric rates are effectively frozen through December 31, 2010. The settlement agreements specifically allow the filing of electric rate design or cost of service rate changes that are intended to keep MidAmerican Energy's overall Iowa retail electric revenue unchanged, but could result in changes to individual tariffs. The settlement agreements also each provide that portions of revenues associated with Iowa retail electric returns on equity within specified ranges will be recorded as a regulatory liability to be used to offset a portion of the cost to Iowa customers of future generating plant investment.
Under the first settlement agreement, which was approved by the IUB on December 21, 2001, and is effective through December 31, 2005, an amount equal to 50% of revenues associated with returns on equity between 12% and 14%, and 83.33% of revenues associated with returns on equity above 14%, in each year is recorded as a regulatory liability. The second settlement agreement, which was filed in conjunction with MidAmerican Energy's application for ratemaking principles on a wind power project and was approved by the IUB on October 17, 2003, provides that during the period January 1, 2006 through December 31, 2010, an amount equal to 40% of revenues associated with returns on equity between 11.75% and 13%, 50% of revenues associated with returns on equity between 13% and 14%, and 83.3% of revenues associated with returns on equity above 14%, in each year will be recorded as a regulatory liability. An amount equal to the regulatory liability is recorded as a regulatory charge in depreciation and amortization expense when the liability is accrued. Future depreciation will be reduced as a result of the credit applied to generating plant balances as the regulatory liability is reduced. The liability is being reduced as it is credited against plant in service in amounts equal to the allowance for funds used during construction associated with generating plant additions. Interest expense is accrued on the portion of the regulatory liability balance recorded in prior years. As of March 31, 2004 and December 31, 2003, the related regulatory liability reflected on the consolidated balance sheets within other long-term accrued liabilities was $173.2 million and $144.4 million, respectively.
The 2003 settlement agreement also provides that if Iowa retail electric returns on equity fall below 10% in any consecutive 12-month period after January 1, 2006, MidAmerican Energy may seek to file for a general increase in rates. However, prior to filing for a general increase in rates, MidAmerican Energy is required by the settlement agreement to conduct 30 days of good faith negotiations with all of the signatories to the settlement agreement to attempt to avoid a general increase in rates. Also, if MidAmerican Energy does not construct the wind power facilities by December 31, 2006, the rate extension from January 1, 2006, through December 31, 2010, may terminate.
Illinois bundled electric rates are frozen until 2007, subject to certain exceptions allowing for increases, at which time bundled rates are subject to cost-based ratemaking. Illinois law provides for Illinois earnings above a computed level of return on common equity to be shared equally between regulated retail electric customers and MidAmerican Energy. MidAmerican Energy's computed level of return on common equity is based on a rolling two-year average of the Monthly Treasury Long-Term Average Rate, as published by the Federal Reserve System, plus a premium of 8.5% for 2000 through 2004 and a premium of 12.5% for 2005 and 2006. The two-year average above which sharing must occur for 2003 was 13.73%. The law allows MidAmerican Energy to mitigate the sharing of earnings above the threshold return on common equity through accelerated recovery of electric assets.
Kern River
Kern River was required to file a general rate case no later than May 1, 2004 pursuant to the terms of its Federal Energy Regulatory Commission ("FERC") Docket No. RP99-274 rate case settlement. Kern River filed its rate case on April 30, 2004 which supports a revenue increase of approximately $40.1 million representing a 13% increase from its existing cost of service and a proposed overall cost of service of $347.4 million. Since its last rate case, Kern River has increased the capacity of its system from 724,500 decatherm ("Dth") per day to 1,755,626 Dth per day at a cost of approximately $1.3 billion resulting in a total rate base of approximately $1.8 billion. Kern River proposed that the rate increase should be
effective as of June 1, 2004, although it anticipates that the FERC will suspend the effectiveness of the rate increase until November 1, 2004.
Northern Natural Gas
Northern Natural Gas has implemented a straight fixed variable rate design which provides that all fixed costs assignable to firm capacity customers, including a return on equity, are to be recovered through fixed monthly demand or capacity reservation charges which are not a function of throughput volumes.
On May 1, 2003, Northern Natural Gas filed a request for increased rates with
the FERC. The rate increase is primarily attributable to four main cost areas:
the capital investment made by Northern Natural Gas in the five years since its
last rate case, an increase in Northern Natural Gas' depreciation rates,
increased return on equity, and changes in the level of contract entitlement.
The rate filing provides evidence in support of a $71 million increase to
Northern Natural Gas' annual revenue requirement. However, Northern Natural Gas
is requesting that only $55 million of this increase be effectuated. Northern
Natural Gas' new rates went into effect November 1, 2003, subject to refund.
Additionally, Northern Natural Gas filed on January 30, 2004 with the FERC to
increase its revenue requirement by an incremental $30 million to that requested
in the May 1, 2003 filing. The increased rates are primarily attributable to
ongoing pipeline integrity initiative costs that Northern Natural Gas has
undertaken since the May 1, 2003 rate filing. The FERC suspended the rate
increase until August 1, 2004 and consolidated the 2003 and 2004 rate cases due
to the similarity of issues in both cases and the updated costs. A hearing on
the consolidated cases is scheduled for January 2005.
CE Electric UK
The majority of the revenue of the Distribution License Holders ("DLHs") in the United Kingdom is controlled by a distribution price control formula which is set out in the license of each DLH. It has been the practice of the Office of Gas and Electricity Markets ("Ofgem") (and its predecessor body, the Office of Electricity Regulation), to review and reset the formula at five-year intervals, although the formula may be further reviewed at other times at the discretion of the regulator. Any such resetting of the formula requires the consent of the DLH. If the DLH does not consent to the formula reset, it is reviewed by the United Kingdom's competition authority, whose recommendations can then be given effect by license modifications made by Ofgem.
The current formula requires that regulated distribution income per unit is increased or decreased each year by RPI-Xd where RPI means the Retail Price Index ("RPI"), reflecting the average of the 12-month inflation rates recorded for each month in the previous July to December period. The Xd factor in the formula was established by Ofgem at the last price control review (and continues to be set) at 3%. The formula also takes account of the changes in system electrical losses, the number of customers connected and the voltage at which customers receive the units of electricity distributed. The distribution price control formula determines the maximum average price per unit of electricity distributed (in pence per kilowatt ("kWh")) which a DLH is entitled to charge. The distribution price control formula permits DLHs to receive additional revenue due to increased distribution of units and a predetermined increase in end users. The price control does not seek to constrain the profits of a DLH from year to year. It is a control on revenue that operates independently of most of the DLH's costs. During the lifetime of the price control, cost savings or additional costs have a direct impact on profit.
The procedure and methodology adopted at a price control review is at the reasonable discretion of Ofgem. At the last such review, concluded in 1999 and effective April 2000, Ofgem's judgment of the future allowed revenue of licensees was based upon, among other things:
o the actual operating costs of each of the licensees;
o the operating costs which each of the licensees would incur if it were as efficient as, in Ofgem's judgment, the most efficient licensee;
o the regulatory value to be ascribed to each of the licensees' distribution network assets;
o the allowance for depreciation of the distribution network assets of each of the licensees; o the rate of return to be allowed on investment in the distribution network assets by all licensees; and
o the financial ratios of each of the licensees and the license requirement for each licensee to maintain an investment grade status.
As a result of the last review, the allowed revenue of NED's distribution business was reduced by 24%, in real terms, and the allowed revenue of YED's distribution business was reduced by 23%, in real terms, with effect from April 1, 2000. The range of reductions for all licensees in Great Britain was between 4% and 33%.
Ofgem has commenced the process of reviewing each DLH's existing price control formula, with a revised formula for each DLH (including NED and YED) expected to take effect from April 1, 2005 for an expected period of five years. To date, the process has involved the collection of data from each DLH via written submissions and meetings with representatives of the various companies. It is expected that Ofgem will announce preliminary proposals for the new price control formulas for the DLHs in June, 2004, with the final proposals issued in November, 2004. Each DLH will then have until December, 2004 to accept or reject the proposals, which if accepted will be implemented through a license modification in the first quarter of 2005, having effect from April 1, 2005.
7. COMMITMENTS AND CONTINGENCIES
Manufactured Gas Plants
The United States Environmental Protection Agency ("EPA") and the state environmental agencies have determined that contaminated wastes remaining at decommissioned manufactured gas plant facilities may pose a threat to the public health or the environment if such contaminants are in sufficient quantities and at such concentrations as to warrant remedial action.
MidAmerican Energy has evaluated or is evaluating 27 properties that were, at one time, sites of gas manufacturing plants in which it may be a potentially responsible party. The purpose of these evaluations is to determine whether waste materials are present, whether the materials constitute a health or environmental risk, and whether MidAmerican Energy has any responsibility for remedial action. MidAmerican Energy is actively working with the regulatory agencies and has received regulatory closure on four sites. MidAmerican Energy is continuing to evaluate several of the sites to determine the future liability, if any, for conducting site investigations or other site activity.
MidAmerican Energy estimates the range of possible costs for investigation, remediation and monitoring for the sites discussed above to be approximately $12 million to $29 million. As of March 31, 2004 and December 31, 2003, MidAmerican Energy had recorded a liability of $13.4 million and $14.0 million, respectively, for these sites and a corresponding regulatory asset for future recovery through the regulatory process. MidAmerican Energy projects that these amounts will be incurred or paid over the next four years.
The estimated liability is determined through a site-specific cost evaluation process. The estimate includes incremental direct costs of remediation, site monitoring costs and costs of compensation to employees for time expected to be spent directly on the remediation effort. The estimated recorded liabilities for these properties are based upon preliminary data. Thus, actual costs could vary significantly from the estimates. The estimate could change materially based on facts and circumstances derived from site investigations, changes in required remedial action and changes in technology relating to remedial alternatives. Insurance recoveries have been received for some of the sites under investigation. Those recoveries are intended to be used principally for accelerated remediation, as specified by the IUB and are recorded as a regulatory liability.
Although the timing of potential incurred costs and recovery of such costs in rates may affect the results of operations in individual periods, management believes that the outcome of these issues will not have a material adverse effect on MidAmerican Energy's financial position, results of operations or cash flows.
Air Quality
MidAmerican Energy's generating facilities are subject to applicable provisions of the Clean Air Act and related air quality standards promulgated by the EPA. The Clean Air Act provides the framework for regulation of certain air emissions and permitting and monitoring associated with those emissions. MidAmerican Energy believes it is in material compliance with current air quality requirements.
The EPA has in recent years implemented more stringent standards for ozone and fine particulate matter. Designations regarding attainment of the eight-hour ozone standard have recently been reviewed by the EPA, and the EPA has concluded that the entire state of Iowa is in attainment of the standards. On December 4, 2003, the EPA announced the development of its Interstate Air Quality Rule, a proposal to require coal-burning power plants in 29 states and the District of Columbia to reduce emissions of sulfur dioxide ("SO2") and nitrogen oxides ("NOX") in an effort to reduce ozone and fine particulate matter in the Eastern United States. It is likely that MidAmerican Energy's coal-burning facilities will be impacted by this proposal.
In December 2000, the EPA concluded that mercury emissions from coal-fired generating stations should be regulated. The EPA is currently considering two regulatory alternatives that would reduce emissions of mercury from coal-fired utilities. One of these alternatives would require reductions of mercury from all coal-fired facilities greater than 25 megawatts through application of Maximum Achievable Control Technology with compliance assessed on a facility basis. The other alternative would regulate the mercury emissions of coal-fired facilities that pose a health hazard through a market based cap-and-trade mechanism similar to the SO2 allowance system. The EPA is currently under a deadline to finalize the mercury rule by December 2004.
The Interstate Air Quality Rule or the mercury reduction rule could, in whole or in part, be superceded or made more stringent by one of a number of multi-pollutant emission reduction proposals currently under consideration at the federal level, including the "Clear Skies Initiative", and other pending legislative proposals that contemplate 70% to 90% reductions of SO2, NOX and mercury, as well as possible new federal regulation of carbon dioxide and other gasses that may affect global climate change.
Depending on the outcome of the final Interstate Air Quality and the mercury reduction rules or any superseding legislation passed by Congress, MidAmerican Energy may be required to install control equipment on its generating stations or decrease the number of hours during which its generating stations operate. However, until final regulations or legislation is enacted, the impact of the regulations on MidAmerican Energy cannot be predicted.
MidAmerican Energy has implemented a planning process that forecasts the site-specific controls and actions may be required to meet emissions reductions as contemplated by the EPA. On April 1, 2002, in accordance with an Iowa law passed in 2001, MidAmerican Energy filed with the IUB its first multi-year plan and budget for managing SO2 and NOX from its generating facilities in a cost-effective manner. The plan provides specific actions to be taken at each coal-fired generating facility and the related costs and timing for each action. Mercury emissions reductions were not addressed in the plan. On July 17, 2003, the IUB issued an order that affirmed an administrative law judge's approval of the plan, as amended. Accordingly, the IUB order provides that the approved expenditures will not be subject to a subsequent prudence review in a future electric rate case, but it rejected the future application of a tracker mechanism to recover emission reduction costs. However, pursuant to an unrelated rate settlement agreement approved by the IUB on October 17, 2003, if prior to January 1, 2011, capital and operating expenditures to comply with environmental requirements cumulatively exceed $325 million, then MidAmerican Energy may seek to recover the additional expenditures from customers. At this time, MidAmerican Energy does not expect these capital expenditures to exceed such amount.
Under the New Source Review ("NSR") provisions of the Clean Air Act, a utility is required to obtain a permit from the EPA or a state regulatory agency prior to (1) beginning construction of a new major stationary source of an NSR-regulated pollutant or (2) making a physical or operational change (a "major modification") to an existing facility that potentially increases emissions, unless the changes are exempt under the regulations (including routine maintenance, repair and replacement of equipment). In general, projects subject to NSR regulations are subject to pre-construction review and permitting under the Prevention of Significant Deterioration ("PSD") provisions of the Clean Air Act. Under the PSD program, a project that emits threshold levels of regulated pollutants must undergo a Best Available Control Technology analysis and evaluate the most effective emissions controls. These controls must be installed in order to receive a permit. Violations of NSR regulations, which may be alleged by the EPA, states and environmental groups, among others, potentially subject a utility to material expenses for fines or other sanctions and remedies including requiring installation of enhanced pollution controls and funding supplemental environmental projects.
In recent years, the EPA has requested from several utilities information and support regarding their capital projects for various generating plants. The requests were issued as part of an industry-wide investigation to assess compliance with the NSR and the New Source Performance Standards of the Clean Air Act. In December 2002 and April 2003, MidAmerican Energy received requests from the EPA to provide documentation related to its capital projects from January 1, 1980, to April 2003 for a number of its generating plants. MidAmerican Energy has submitted information to the EPA in responses to these requests, and there are currently no outstanding data requests pending from the EPA. MidAmerican Energy cannot predict the outcome of these requests at this time. However, on August 27, 2003, the EPA announced changes to its NSR rules that clarify what constitutes routine repair, maintenance and replacement for purposes of triggering NSR requirements. The EPA concluded equipment that is repaired, maintained or replaced with an expenditure not greater than 20 percent of the value of the source will not trigger the New Source Revisions of the Clean Air Act. Since the NSR changes were announced, the EPA's enforcement branch indicated it would apply the clarified routine repair, maintenance and replacement rules to its pending investigation. However, a number of states and local air districts have challenged the EPA's clarification of the rule and a panel of the U.S. Circuit Court of Appeals for the District of Columbia issued an order on December 24, 2003 staying
the EPA's implementation of its clarification of the equipment replacement rule; therefore, the previous rules without the clarified exemption remain in effect.
On February 26, 2004, the EPA issued final requirements to reduce hazardous air pollutants from stationary reciprocating internal combustion engines, such as those used at pipeline compressor stations, built after December 19, 2002. The standards apply to all new and certain existing reciprocating internal combustion engines above 500 horsepower that are located at facilities characterized under the Clean Air Act as a "major source" of toxic air pollutants. The impact of the regulation of hazardous air pollutants from stationary reciprocating internal combustion engines may have a significant impact on existing and new facilities.
Nuclear Decommissioning
Expected decommissioning costs for Quad Cities Station have been developed based on a site-specific decommissioning study that includes decontamination, dismantling, site restoration, dry fuel storage cost and an assumed shutdown date. Quad Cities Station decommissioning costs are included in base rates in Iowa tariffs.
MidAmerican Energy's share of expected decommissioning costs for Quad Cities Station, in 2003 dollars, is $260 million and is the asset retirement obligation for Quad Cities Station. MidAmerican Energy has established external trusts for the investment of funds for decommissioning the Quad Cities Station. The fair value of the assets held in the trusts is reflected in deferred charges and other assets in the consolidated balance sheets.
Natural Gas Commodity Litigation
MidAmerican Energy is one of dozens of companies named as defendants in a January 20, 2004 consolidated class action lawsuit filed in the U.S. District Court for the Southern District of New York. The suit alleges that the defendants have engaged in unlawful manipulation of the prices of natural gas futures and options contracts traded on the New York Mercantile Exchange ("NYMEX") during the period January 1, 2000 to December 31, 2002. MidAmerican Energy is mentioned as a company that has engaged in wash trades on Enron Online (an electronic trading platform) that had the effect of distorting prices for gas trades on the NYMEX. The plaintiffs to the class action do not specify the amount of alleged damages. At this time, MidAmerican Energy does not believe that it has any material exposure in this lawsuit.
The original complaint in this matter, Cornerstone Propane Partners, L.P. v. Reliant, et al. ("Cornerstone"), was filed on August 18, 2003 in the United States District Court, Southern District of New York naming MidAmerican Energy and the Company. On October 1, 2003, a second complaint, Roberto, E. Calle Gracey, et al. ("Calle Gracey"), was filed in the same court but did not name MidAmerican Energy or the Company. On November 14, 2003, a third complaint, Dominick Viola ("Viola"), et al., was filed in the same court and named MidAmerican Energy and MidAmerican Energy Holdings Company as defendants. On November 19, 2003, an Order of Voluntary Dismissal Without Prejudice of MidAmerican Energy Holdings Company was entered by the court dismissing MidAmerican Energy Holdings Company from the Cornerstone and Viola complaints and MidAmerican Energy Holdings Company was dismissed from the suit. On December 5, 2003, the court entered Pretrial Order No. 1, which among other procedural matters, ordered the consolidation of the Cornerstone, Calle Gracey and Viola complaints and permitted plaintiffs to file an amended complaint in this matter. On January 20, 2004, plaintiffs filed In Re: Natural Gas Commodity Litigation as the amended complaint reasserting their previous allegations. On February 19, 2004, MidAmerican Energy filed a Motion to Dismiss and joined with several other defendants to file a joint Motion to Dismiss. The plaintiff's response is due May 19, 2004. MidAmerican Energy will coordinate with the other defendants and vigorously defend the allegations against it.
Philippines
CE Casecnan Construction Contract Arbitration
The Casecnan project was constructed pursuant to a fixed-price, date-certain, turnkey construction contract by a consortium consisting of Cooperativa Muratori Cementisti CMC di Ravenna and Impresa Pizzarotti & C. Spa. (collectively, the "Contractor"), working together with Siemens A.G., Sulzer Hydro Ltd., Black & Veatch and Colenco Power Engineering Ltd.
In 2001, the Contractor filed a Request for Arbitration (and two supplements) with the International Chamber of Commerce ("ICOC") seeking schedule relief of up to 153 days, compensation for alleged additional costs of approximately $4 million
and compensation for damages of approximately $62 million resulting from alleged force majeure events (and geologic conditions). The Contractor further alleged that the circumstances surrounding the placing of the Casecnan project into commercial operation in December 2001 amounted to a repudiation of the construction contract resulting in a claim for unspecified quantum meruit damages, and that the delay liquidated damages clause which provides for payments of $125,000 per day to CE Casecnan for each day of delay in completion of the Casecnan project was unenforceable.
On November 7, 2002, the ICOC issued the arbitration tribunal's partial award with respect to the Contractor's force majeure and geological claims. The arbitration panel awarded the Contractor 18 days of schedule relief in the aggregate for all of the force majeure events and awarded the Contractor $3.8 million to the extent losses are not covered by insurance. All of the Contractor's other claims with respect to force majeure and geologic conditions were denied.
On April 7, 2004, CE Casecnan entered into an agreement with the Contractor settling the ICOC arbitration. Pursuant to the settlement agreement, on April 14, 2004, CE Casecnan received $18.9 million from the Contractor and the Contractor and CE Casecnan executed mutual releases and agreed to dismiss the arbitration. An amount of $24.4 million will be recorded as a reduction of properties, plants and equipment in the second quarter of 2004, reflecting the receipt of the Contractor payment and the release of other costs accrued in connection with the arbitration proceedings.
CE Casecnan Stockholder Litigation
Pursuant to the share ownership adjustment mechanism in the CE Casecnan stockholder agreement, which is based upon pro forma financial projections of the Casecnan project prepared following commencement of commercial operations, in February 2002, MEHC's indirect wholly-owned subsidiary, CE Casecnan Ltd., advised the minority stockholder, LaPrairie Group Contractors (International) Ltd. ("LPG"), that MEHC's ownership interest in CE Casecnan had increased to 100% effective from commencement of commercial operations. In April 2002, CE Casecnan Ltd. and LPG entered into a status quo agreement pursuant to which CE Casecnan Ltd. agreed not to take any action to exercise control over or transfer LPG's shares in CE Casecnan. On July 8, 2002, LPG filed a complaint in the Superior Court of the State of California, City and County of San Francisco against, among others, CE Casecnan Ltd. and MEHC. In the complaint, LPG seeks compensatory and punitive damages for alleged breaches of the stockholder agreement and alleged breaches of fiduciary duties allegedly owed by CE Casecnan Ltd. and MEHC to LPG. The complaint also seeks injunctive relief against all defendants and a declaratory judgment that LPG is entitled to maintain a 15% interest in CE Casecnan. On January 21, 2004, CE Casecnan Ltd. and LPG entered into a second status quo agreement pursuant to which the parties agreed to set aside certain distributions related to the shares subject to the LPG dispute and CE Casecnan agreed not to take any further actions with respect to such distributions without at least 15 days prior notice to LPG. Accordingly, 15% of the CE Casecnan dividend distributions declared in the first quarter of 2004 amounting to $8.0 million, was set aside by CE Casecnan in an unsecured CE Casecnan account. The initial phase in the case has been set for trial in May 2004. The impact, if any, of this litigation on the Company cannot be determined at this time.
8. COMPREHENSIVE INCOME
The differences from net income to total comprehensive income for the Company
are due to foreign currency translation adjustments, unrealized holding gains
and losses of marketable securities during the periods, and the effective
portion of net gains and losses of derivative instruments classified as cash
flow hedges. Total comprehensive income for the Company is shown in the table
below (in thousands):
THREE MONTHS
ENDED MARCH 31,
---------------------
2004 2003
-------- ---------
Net income ........................................................ $147,190 $ 130,636
Other comprehensive income:
Foreign currency translation .................................... 34,325 (28,007)
Marketable securities, net of tax of $72 and $(83), respectively 108 (133)
Cash flow hedges, net of tax of $1,211 and $2,442, respectively 2,766 5,226
-------- ---------
Total comprehensive income ........................................ $184,389 $ 107,722
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9. RETIREMENT PLANS
Domestic Operations
MidAmerican Energy sponsors a noncontributory defined benefit pension plan covering substantially all employees of MEHC and its domestic energy subsidiaries. MidAmerican Energy also currently sponsors certain postretirement health care and life insurance benefits covering substantially all retired employees of MEHC and its domestic energy subsidiaries. Net periodic pension, supplemental retirement and postretirement benefit costs included the following components for MidAmerican Energy and the aforementioned affiliates for the three-month periods ended March 31 (in thousands):
PENSION COST POSTRETIREMENT COST
-------------------- -------------------
2004 2003 2004 2003
------- -------- ------- -------
Components of net periodic benefit cost:
Service cost ............................ $ 6,598 $ 6,744 $ 1,962 $ 1,951
Interest cost ........................... 8,700 9,336 4,183 3,834
Expected return on plan assets .......... (9,634) (10,499) (1,861) (1,434)
Amortization of net transition balance .. (198) (709) 1,028 981
Amortization of prior service cost ...... 687 705 148 142
Amortization of prior year loss ......... 419 375 834 887
Regulatory expense ...................... - 908 - -
------- -------- ------- -------
Net periodic cost ....................... $ 6,572 $ 6,860 $ 6,294 $ 6,361
======= ======== ======= =======
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MEHC previously disclosed in its financial statements for the year ended December 31, 2003, that it expected MidAmerican Energy to contribute $5.1 million and $27.6 million in 2004 to its pension and postretirement plans, respectively. As of March 31, 2004, $1.3 million and $6.6 million of contributions have been made to the pension and postretirement plans, respectively.
In December 2003, the President signed into law the Medicare Prescription Drug, Improvement and Modernization Act of 2003 ("Medicare Act"). The Medicare Act introduces a prescription drug benefit under Medicare as well as a subsidy to sponsors of retiree health care plans that provide a benefit to participants that is at least actuarially equivalent to Medicare Part D. The Medicare Act is expected to ultimately reduce the Company's postretirement costs from what they would have been absent such changes. Detailed regulations pertaining to the Medicare Act have yet to be promulgated, and therefore, the Company cannot determine whether its plan meets the actuarial equivalency requirements of Medicare Part D. Accordingly, the Company continues to defer recognizing the effects of the Medicare Act in its postretirement plan accounting.
United Kingdom Operations
CE Electric UK, through a wholly-owned subsidiary, participates in the Electricity Supply Pension Scheme, which provides pension and other related defined benefits, based on final pensionable pay, to substantially all employees throughout the electricity supply industry in the United Kingdom. Net periodic pension costs included the following components for CE Electric UK for the three-month periods ended March 31 (in thousands):
2004 2003
-------- --------
Components of net periodic benefit cost:
Service cost ........................... $ 3,045 $ 2,589
Interest cost .......................... 18,503 17,095
Expected return on plan assets ......... (24,778) (24,326)
Amortization of prior service cost ..... 415 402
Amortization of prior year loss ........ 4,245 491
-------- --------
Net periodic (benefit) cost ............ $ 1,430 $ (3,749)
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MEHC previously disclosed in its financial statements for the year ended December 31, 2003, that it expected CE Electric UK to contribute $14.0 million in 2004 to their pension plans. As of March 31, 2004, $3.5 million of contributions have been made to the pension plans.
10. SEGMENT INFORMATION
The Company has identified seven reportable operating segments based on
management structure: MidAmerican Energy, Kern River, Northern Natural Gas, CE
Electric UK, CalEnergy Generation-Domestic, CalEnergy Generation-Foreign, and
HomeServices. Information related to the Company's reportable operating segments
is shown below (in thousands):
THREE MONTHS
ENDED MARCH 31,
---------------------------
2004 2003
----------- -----------
OPERATING REVENUE:
MidAmerican Energy .............................. $ 840,946 $ 815,916
Kern River ...................................... 75,613 39,030
Northern Natural Gas ............................ 190,339 170,639
CE Electric UK .................................. 262,608 225,532
CalEnergy Generation - Domestic ................. 11,901 11,233
CalEnergy Generation - Foreign .................. 69,591 76,729
HomeServices .................................... 314,686 257,988
----------- -----------
Segment operating revenue ....................... 1,765,684 1,597,067
Corporate/other(1) ............................ (20,429) (20,182)
----------- -----------
Total operating revenue ......................... $ 1,745,255 $ 1,576,885
=========== ===========
INTEREST EXPENSE:
MidAmerican Energy .............................. $ 30,591 $ 31,384
Kern River ...................................... 19,535 19,673
Northern Natural Gas ............................ 13,124 15,573
CE Electric UK .................................. 48,798 50,067
CalEnergy Generation - Domestic ................. 8,531 7,601
CalEnergy Generation - Foreign .................. 11,259 15,361
HomeServices .................................... 705 1,049
----------- -----------
Segment interest expense ........................ 132,543 140,708
Corporate/other(1) ............................ 55,680 46,137
Parent company subordinated debt(2) ........... 50,179 -
----------- -----------
Total interest expense ........................ $ 238,402 $ 186,845
=========== ===========
INCOME (LOSS) BEFORE PROVISION FOR INCOME TAXES:
MidAmerican Energy .............................. $ 88,554 $ 89,892
Kern River ...................................... 30,472 26,376
Northern Natural Gas ............................ 102,656 83,639
CE Electric UK .................................. 109,206 84,773
CalEnergy Generation - Domestic ................. (13,478) (5,858)
CalEnergy Generation - Foreign .................. 33,789 34,532
HomeServices .................................... 9,659 7,005
----------- -----------
Segment income before provision for income taxes 360,858 320,359
Corporate/other(1)(2) ......................... (122,327) (58,810)
----------- -----------
Total income before provision for income taxes .. $ 238,531 $ 261,549
=========== ===========
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MARCH 31, DECEMBER 31,
2004 2003
----------- -----------
IDENTIFIABLE ASSETS: (3)
MidAmerican Energy ............. $ 6,714,044 $ 6,596,849
Kern River ..................... 2,193,885 2,200,201
Northern Natural Gas ........... 2,280,346 2,167,621
CE Electric UK ................. 5,398,868 5,038,880
CalEnergy Generation - Domestic 847,318 842,148
CalEnergy Generation - Foreign . 854,282 951,155
HomeServices ................... 627,628 567,736
----------- -----------
Segment identifiable assets .... 18,916,371 18,364,590
Corporate/other(1) ........... 764,523 803,599
----------- -----------
Total identifiable assets ...... $19,680,894 $19,168,189
=========== ===========
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(1) The remaining differences from the segment amounts to the consolidated amounts described as "Corporate/other" relate principally to the corporate functions including administrative costs, interest expense, corporate cash and related interest income, intersegment eliminations, and fair value adjustments relating to acquisitions.
(2) The Company adopted and applied the provisions of FIN 46R, related to certain finance subsidiaries as of October 1, 2003. The adoption required amounts previously recorded in minority interest and preferred dividends to be recorded as interest expense in the accompanying consolidated statement of operations. For the period from January 1, 2004 to March 31, 2004 the Company has recorded $50.2 million of interest expense related to these finance subsidiaries. In accordance with the requirements of FIN 46R, no amounts prior to adoption on October 1, 2003 have been reclassified. The amount included in minority interest and preferred dividends for the three-month period ended March 31, 2003 was $55.1 million.
(3) Identifiable assets by segment includes the allocation of goodwill.
Goodwill as of December 31, 2003 and changes for the period from January 1, 2004 through March 31, 2004 by segment are as follows (in thousands):
NORTHERN CE CALENERGY
MIDAMERICAN KERN NATURAL ELECTRIC GENERATION HOME-
ENERGY RIVER GAS UK DOMESTIC SERVICES TOTAL
----------- ------- --------- ---------- ---------- --------- ----------
Goodwill at January 1, 2004.. $ 2,139,223 $33,900 $ 379,148 $1,261,583 $ 126,308 $ 365,481 $4,305,643
Goodwill from acquisitions
during the year ............. - - - - - 702 702
Other goodwill
adjustments(1) .............. (4,762) - (4,843) 32,606 (6) (1,945) 21,050
----------- ------- --------- ---------- --------- --------- ----------
Goodwill at March 31,2004 ... $ 2,134,461 $33,900 $ 374,305 $1,294,189 $ 126,302 $ 364,238 $4,327,395
=========== ======= ========= ========== ========= ========= ==========
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(1) Other goodwill adjustments include income tax, foreign currency translation and purchase price adjustments.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
The following is management's discussion and analysis of certain significant factors which have affected the financial condition and results of operations of MidAmerican Energy Holdings Company ("MEHC" or the "Company"), during the periods included in the accompanying consolidated statements of operations. This discussion should be read in conjunction with the Company's historical financial statements and the notes to those statements. The Company's actual results in the future could differ significantly from the historical results.
FORWARD-LOOKING STATEMENTS
From time to time, the Company may make forward-looking statements within the meaning of the federal securities laws that involve judgments, assumptions and other uncertainties beyond the control of the Company or any of its subsidiaries individually. These forward-looking statements may include, among others, statements concerning revenue and cost trends, cost recovery, cost reduction and rate case strategies and anticipated outcomes, pricing strategies, changes in the utility industry, planned capital expenditures, financing needs and availability, statements of MEHC's expectations, beliefs, future plans and strategies, anticipated events or trends and similar comments concerning matters that are not historical facts. These types of forward-looking statements are based on current expectations and involve a number of known and unknown risks and uncertainties that could cause the actual results and performance of the Company to differ materially from any expected future results or performance, expressed or implied, by the forward-looking statements. In connection with the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, MEHC has identified important factors that could cause actual results to differ materially from those expectations, including weather effects on revenues and other operating uncertainties, uncertainties relating to economic and political conditions and uncertainties regarding the impact of regulations, changes in government policy and competition. The Company does not assume any responsibility to update forward-looking information contained herein.
BUSINESS
The Company is a United States-based privately owned global energy company with publicly traded fixed income securities that generates, distributes and supplies energy to utilities, government entities, retail customers and other customers located throughout the world. Through its subsidiaries, the Company is organized and managed on seven distinct platforms: MidAmerican Energy Company ("MidAmerican Energy"), Kern River Gas Transmission Company ("Kern River"), Northern Natural Gas Company ("Northern Natural Gas"), CE Electric UK Funding, Inc. ("CE Electric UK") (which includes Northern Electric Distribution Ltd ("NED") and Yorkshire Electricity Distribution plc ("YED")), CalEnergy Generation - Domestic, CalEnergy Generation - Foreign and HomeServices of America, Inc. ("HomeServices"). These platforms are discussed in detail in the Company's Annual Report on Form 10-K for the year ended December 31, 2003.
RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2004 AND 2003
In the three months ended March 31, 2004, net income available to common and preferred stockholders was $147.2 million compared with $130.6 million for the same period in 2003.
Operating revenue for the three months ended March 31, 2004 increased $168.4 million or 10.7% to $1,745.3 million from $1,576.9 million for the same period in 2003. The following table summarizes operating revenue by segment for the three months ended March 31 (in millions):
THREE MONTHS
ENDED MARCH 31,
---------------------------------
2004 2003 $ CHANGE
-------- -------- --------
Operating revenue:
MidAmerican Energy ............. $ 841.0 $ 815.9 $ 25.1
Kern River ..................... 75.6 39.0 36.6
Northern Natural Gas ........... 190.3 170.6 19.7
CE Electric UK ................. 262.6 225.5 37.1
CalEnergy Generation - Domestic 11.9 11.3 0.6
CalEnergy Generation - Foreign . 69.6 76.7 (7.1)
HomeServices ................... 314.7 258.0 56.7
-------- -------- ------
Segment operating revenue ...... 1,765.7 1,597.0 168.7
Corporate/other ................ (20.4) (20.1) (0.3)
-------- -------- ------
Total operating revenue ........ $1,745.3 $1,576.9 $168.4
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MidAmerican Energy's operating revenue for the three months ended March 31, 2004, increased $25.1 million, or 3.1%, to $841.0 million. Regulated and non-regulated electric revenues increased $53.0 million, or 16.0%, to $383.5 million for the three months ended March 31, 2004, primarily due to higher volumes and higher off-system prices. Gas revenues decreased $26.3 million, or 5.5% to $453.5 million for the three months ended March 31, 2004, mainly due to lower volumes and lower wholesale gas prices.
Operating revenue at both pipelines is principally derived by providing firm or interruptible transportation services under long-term gas transportation service agreements. Northern Natural Gas also derives part of its revenue from storing gas. The $36.6 million increase in Kern River's operating revenue was primarily due to the transportation fees earned in connection with the 2003 expansion project ("Kern River 2003 Expansion Project") which began operation May 1, 2003. On May 1, 2003, Northern Natural Gas filed a request for increased rates with the Federal Energy Regulatory Commission. The rate filing provides evidence in support of a $71 million increase to Northern Natural Gas' annual revenue requirement. However, in this case, Northern Natural Gas is requesting that only $55 million of this increase be effectuated. Northern Natural Gas' new rates went into effect November 1, 2003, subject to refund. The $19.7 million increase in Northern Natural Gas' operating revenue reflects the impact of the new rates and the Company's estimate of the expected outcome of the rate case.
CE Electric UK operating revenue increased during the three months ended March 31, 2004 as a result of the weaker U.S. dollar, higher distribution revenue and slightly higher revenue at its contracting business.
Operating revenue for CalEnergy Generation - Foreign decreased in the three months ended March 31, 2004 primarily due to the settlements with the National Irrigation Administration and the Philippine National Oil Company-Energy Development Corporation effective in the fourth quarter of 2003.
HomeServices' operating revenue, consisting mainly of commission revenue from real estate brokerage transactions, increased $56.7 million, or 22.0%. The increase is due to growth from existing operations totaling $34.1 million reflecting higher unit sales and average sales prices and acquisitions made in 2003 totaling $22.6 million. During the three months ended March 31, 2004, HomeServices closed 36,090 brokerage sides up 9.5% from 32,968 closed sides in the comparable 2003 period. Closed brokerage volume was $10.6 billion during the three months ended March 31, 2004, up 27.7% from $8.3 billion in 2003.
Income on equity investments for the three months ended March 31, 2004, decreased $4.0 million to $3.5 million for the same period in 2003. Equity income from non-regulated generation equity investments decreased $1.1 million to $1.2 million mainly due to the expiration of a contract at an independent power plant. Equity income from HomeServices for the three months ended March 31, 2004 decreased by $2.6 million to $2.3 million due to decreased refinancing activity at mortgage joint ventures.
Interest and dividend income for the three months ended March 31, 2004, decreased $6.7 million to $7.2 million. The decrease is mainly due to dividends received in 2003 from the Company's investment in The Williams Companies Cumulative Convertible Preferred Stock. The investment was sold in the second quarter of 2003.
Other income for the three months ended March 31, 2004, decreased $9.0 million to $8.4 million, primarily due to lower allowance for equity funds used during the construction related to the Kern River 2003 Expansion Project.
Cost of sales for the three months ended March 31, 2004, increased $57.6 million, or 8.4%, to $742.0 million from $684.4 million in the comparable 2003 period. HomeServices' cost of sales, consisting primarily of commissions on real estate brokered transactions, increased $43.6 million due to higher commission expense on incremental sales at existing business units and acquisitions made in 2003. CE Electric UK cost of sales increased $5.6 million primarily due to the weaker U.S. dollar. MidAmerican Energy cost of sales increased $5.0 million, due to higher regulated electric volumes and cost per megawatt-hour, partially offset by lower gas volumes and lower average gas prices.
Operating expenses for the three months ended March 31, 2004, increased $22.2 million, or 6.2%, to $378.7 million from $356.5 million in the comparable 2003 period. HomeServices' operating expenses, consisting mainly of compensation, marketing and other administrative costs, increased $8.3 million. CE Electric UK operating expenses increased $4.8 million, primarily due to the weaker U.S. dollar. Kern River operating expenses increased $4.0 million due to the commencement of operations of the Kern River 2003 Expansion Project.
Depreciation and amortization for the three months ended March 31, 2004, increased $28.5 million, or 20.0%, to $170.3 million from $141.8 million in the comparable 2003 period. MidAmerican Energy's expense increased $14.1 million due primarily to an increase in regulatory expense related to its revenue sharing arrangement, Kern River's expense increased $6.4 million due to the commencement of operation of the Kern River 2003 Expansion Project, and Northern Natural Gas' expense increased $5.2 million due to higher depreciation rates consistent with the rate case filings.
Interest expense for the three months ended March 31, 2004, increased $51.6 million to $238.4 million. On October 1, 2003, the Company adopted Financial Accounting Standards Board, ("FASB") Interpretation No. 46R, "Consolidation of Variable Interest Entities - An Interpretation of ARB No. 51" ("FIN 46R") related to certain finance subsidiaries. The adoption required that amounts previously recorded in minority interest and preferred dividends be recorded as interest expense in the accompanying consolidated statement of operations. For the period from January 1, 2004 to March 31, 2004, the Company has recorded $50.2 million of interest expense related to these finance subsidiaries. In accordance with the requirements of FIN 46R, no amounts prior to adoption on October 1, 2003 have been reclassified. The amount included in minority interest and preferred dividends for the three-month period ended March 31, 2003 was $55.1 million.
The remaining $1.4 million increase in interest expense resulted from charges associated with the early redemption of $136.4 million of Salton Sea Funding Corporation ("Funding Corporation") debt totaling $10.8 million, additional interest expense totaling $5.6 million on the Company's debt issuances of $450.0 million of 3.5% Senior Notes (May 2003) and $250.0 million of 5.0% Senior Notes (February 2004). These increases were partially offset by decreased interest, totaling $12.4 million, due to the Company's scheduled redemption of $215.0 million of 6.96% Senior Notes (September 2003), redemption in full of the outstanding shares of the Yorkshire Capital Trust I, 8.08% trust securities (June 2003), and reductions in CalEnergy Generation - Foreign project debt.
Capitalized interest for the three months ended March 31, 2004, decreased $11.9 million to $3.6 million. The decrease was primarily due to the discontinuance of capitalizing interest on the Kern River 2003 Expansion Project.
The income tax provision for the three months ended March 31, 2004, increased $15.6 million to $88.6 million mainly due to higher pre-tax earnings, increased taxes at CalEnergy Generation-Foreign as a result of the expiration of the income tax holiday at a Leyte project and higher taxes on other foreign earnings.
Minority interest and preferred dividends for the three months ended March 31, 2004 decreased $55.1 million to $2.8 million. This decrease was due to the adoption of FIN 46R described above.
LIQUIDITY AND CAPITAL RESOURCES
The Company has available a variety of sources of liquidity and capital resources, both internal and external. These resources provide funds required for current operations, construction expenditures, debt retirement and other capital requirements. The Company may from time to time seek to retire its outstanding debt through cash purchases in the open market, privately negotiated transactions or otherwise. Such repurchases or exchanges, if any, will depend on prevailing market conditions, the Company's liquidity requirements, contractual restrictions and other factors. The amounts involved may be material.
The Company's cash and cash equivalents were $977.8 million at March 31, 2004, compared to $660.2 million at December 31, 2003. Each of MEHC's direct or indirect subsidiaries is organized as a legal entity separate and apart from MidAmerican Energy Holdings Company and its other subsidiaries. Pursuant to separate financing agreements at each subsidiary, the assets of each subsidiary may be pledged or encumbered to support or otherwise provide the security for their own project or subsidiary debt. It should not be assumed that any asset of any subsidiary of MEHC will be available to satisfy the obligations of MEHC or any of its other subsidiaries; provided, however, that unrestricted cash or other assets which are available for distribution may, subject to applicable law and the terms of financing arrangements for such parties, be advanced, loaned, paid as dividends or otherwise distributed or contributed to MEHC or affiliates thereof.
In addition, the Company recorded separately, in restricted cash and short-term investments and deferred charges and other assets, restricted cash and investments of $205.2 million and $119.5 million at March 31, 2004, and December 31, 2003, respectively. The restricted cash balance for both periods is comprised primarily of amounts deposited in restricted accounts which are reserved for the service of debt obligations, customer deposits held in escrow, and distributions.
The Company generated cash flows from operations of $488.0 million for the three months ended March 31, 2004, compared with $385.8 million for the comparable period in 2003. The increase was mainly due to a refund of $79.0 million from the Internal Revenue Service as a result of a 2003 net operating loss. The net operating loss was primarily due to bonus depreciation as a result of the Kern River 2003 Expansion Project becoming operational in 2003. Also contributing to higher cash flows from operations are higher earnings and non-cash charges for depreciation and amortization.
Cash flows used in investing activities for the three months ended March 31, 2004 were $111.7 million, compared with $444.0 million for the same period in 2003. The decrease was due to lower capital expenditures in 2004 along with the collection of the Republic of the Philippines ("ROP") Note as described below.
Put of ROP Note and Receipt of Cash
On January 14, 2004, CE Casecnan Water and Energy Company, Inc. ("CE Casecnan"), an indirect, majority-owned subsidiary of the Company, exercised its right to put the ROP Note to the ROP and, in accordance with the terms of the put option, CE Casecnan received $99.2 million (representing $97.0 million par value plus accrued interest) from the ROP on January 21, 2004.
Capital Expenditures, Construction and Other Development Costs
Capital expenditures, construction and other development costs were $211.4 million for the three months ended March 31, 2004 as compared with $377.9 million for the same period in 2003. The following table summarizes the expenditures by business segment (in millions):
2004 2003
------ ------
MidAmerican Energy .............. $117.4 $ 77.3
Kern River ...................... 4.5 216.0
Northern Natural Gas ............ 16.5 13.0
CE Electric UK .................. 68.6 61.1
CalEnergy Generation - Domestic . 0.7 4.5
CalEnergy Generation - Foreign .. 0.4 1.7
HomeServices .................... 2.6 4.2
------ ------
Segment capital expenditures .... 210.7 377.8
Corporate/other ................. 0.7 0.1
------ ------
Total capital expenditures ...... $211.4 $377.9
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Forecasted capital expenditures, construction and other development costs for fiscal 2004 are expected to be approximately $1.3 billion. Capital expenditure needs are reviewed regularly by management and may change significantly as a result of such reviews. The Company expects to meet these capital expenditures with cash flows from operations and the issuance of long-term debt. Capital expenditures relating to operating projects, consisting mainly of recurring expenditures were $159.7 million for the three months ended March 31, 2004. Construction and other development costs were $51.7 million for the three months ended March 31, 2004. These costs consist mainly of expenditures for large scale, generation projects as follows:
MidAmerican Energy
MidAmerican Energy's primary need for capital is utility construction expenditures. For the first three months of 2004, utility construction expenditures totaled $117.4 million, including allowance for funds used during construction and Quad Cities Station nuclear fuel purchases.
Forecasted utility construction expenditures, including allowance for funds used during construction, are $912 million for 2004.
MidAmerican Energy anticipates a continuing increase in demand for electricity from its regulated customers. To meet anticipated demand and ensure adequate electric generation in its service territory, MidAmerican Energy is currently constructing two electric generating projects in Iowa and is developing a third. Upon completion, the projects will provide service to regulated retail electricity customers. MidAmerican Energy has obtained regulatory approval to include the actual costs of the generation projects in its Iowa rate base as long as actual costs do not exceed the agreed caps that MidAmerican Energy has deemed to be reasonable. If the caps are exceeded, MidAmerican Energy has the right to demonstrate the prudence of the expenditures above the caps subject to regulatory review. Wholesale sales may also be made from the projects to the extent the power is not needed for regulated retail service. MidAmerican Energy expects to invest approximately $1.4 billion in the three projects, of which approximately $382 million has been invested through March 31, 2004.
The first project is a natural gas-fired combined cycle unit with an estimated cost of $357 million, excluding allowance for funds used during construction. MidAmerican Energy will own and operate the plant. Commercial operation of the simple cycle mode began on May 5, 2003. The plant, which will continue to be operated in simple cycle mode during 2004, resulted in 327 megawatt ("MW") of accredited capacity in the summer of 2003. The combined cycle operation is expected to commence in December 2004 and achieve an expected additional accredited capacity of 190 MW.
The second project is currently under construction and will be a 790 MW (based on expected accreditation) super-critical-temperature, low-sulfur coal-fired plant. MidAmerican Energy will operate the plant and hold an undivided ownership interest as a tenant in common with the other owners of the plant. MidAmerican Energy's ownership interest is 60.67%, equating to 479 MW of output. MidAmerican Energy expects its share of the estimated cost of the project to be approximately $713 million, excluding allowance for funds used during construction. Municipal, cooperative and public power utilities will own the remainder, which is a typical ownership arrangement for large base-load plants in Iowa. On May 29, 2003, the Iowa Utilities Board ("IUB") issued an order that approves the ratemaking principles for the plant, and on June 27, 2003, MidAmerican Energy received a certificate from the IUB allowing MidAmerican Energy to construct the plant. On February 12, 2003, MidAmerican Energy executed a contract with Mitsui & Co. Energy Development, Inc. for the engineering, procurement and construction of the plant. On September 9, 2003, MidAmerican Energy began construction of the plant, which it expects to be completed in the summer of 2007. MidAmerican Energy is also seeking an order from the IUB approving construction of the associated transmission facilities.
The third project is currently under development and is comprised of wind power facilities totaling 310 MW based on the nameplate rating. Generally speaking, accredited capacity ratings for the wind power facilities are considerably less than the nameplate ratings due to the varying nature of wind. The current projected accredited capacity for these wind power facilities is approximately 53 MW. If constructed, MidAmerican Energy will own and operate these facilities, which are expected to cost approximately $323 million. MidAmerican Energy's plan to construct the wind project is in conjunction with a settlement agreement that extends through December 31, 2010, an Iowa retail electric rate freeze that was previously scheduled to expire at the end of 2005. The settlement agreement, which was filed with the IUB as part of MidAmerican Energy's application for ratemaking principles for the wind project, was approved by the IUB on October 17, 2003. The obligation of MidAmerican Energy to construct the wind project may be terminated by MidAmerican Energy if the federal production tax credit applicable to the wind energy facilities is not available at a rate of 1.8 cents per kilowatt ("kWh") for a period of at least ten years after the facilities begin generating electricity. Congress is currently considering legislation that would allow a 1.8 cent per kWh tax credit for a period of ten years. MidAmerican Energy has also received authorization from the IUB to construct the wind power project. If MidAmerican Energy does not construct the wind facilities by December 31, 2006, the rate extension from January 1, 2006 through December 31, 2010 may terminate.
Kern River
On May 1, 2003, Kern River completed the construction of its Kern River 2003 Expansion Project at a total cost of approximately $1.2 billion. The expansion increased the design capacity of the existing Kern River pipeline by 885,626 decatherms per day to 1,755,626 decatherms per day.
Cash flows used in financing activities for the three months ended March 31, 2004 were $65.6 million. During 2004, the Company used cash for financing activities of $214.7 million for repayments of subsidiary obligations, and generated cash from financing activities of $260.3 million from the issuances of subsidiary, project and parent company debt. Cash flows
from financing activities for the three months ended March 31, 2003 were $73.5 million. During 2003, the Company generated cash from financing activities, totaling $287.6 million, from the issuance of subsidiary and project company debt, and used cash for financing activities, totaling $220.1 million, for repayments of parent company and subsidiary obligations.
Recent Debt Issuances, Redemptions and Stock Transactions
On February 12, 2004, MEHC completed the sale of $250 million in aggregate principal amount of its 5.00% senior notes due February 15, 2014. The proceeds were used to satisfy a demand made by its affiliate, Funding Corporation, for the amount remaining on MEHC's guarantee of the Funding Corporation's Series F Bonds and for other general corporate purposes.
On March 1, 2004, Funding Corporation completed the redemption of an aggregate principal amount of approximately $136.4 million of its 7.475% Senior Secured Series F Bonds due November 30, 2018 ("Series F Bonds"), pro rata, at a redemption price of 100% of such aggregate outstanding principal amount, plus accrued interest to the date of redemption. Funding Corporation also made a demand on MEHC for the full amount remaining on MEHC's guarantee of the Series F Bonds in order to fund the redemption. MEHC made the requisite payment and, as a result, it has no further payment obligation under the guarantee.
On January 6, 2004, the Company purchased two hundred thousand shares of common stock owned by the Company's chairman and chief executive officer, for an aggregate purchase price of $20.0 million.
Restricted Cash and Short-term Investments
During the three months ended March 31, 2004, CE Casecnan increased its restricted cash related to obligations for debt service and unpaid dividends declared.
CREDIT RISK RATINGS
Debt and preferred securities of the Company may be rated by nationally recognized credit rating agencies. Assigned credit ratings are based on each rating agency's assessment of the rated company's ability to, in general, meet the obligations of its debt or preferred securities. The credit ratings are not a recommendation to buy, sell or hold securities, and there is no assurance that a particular credit rating will continue for any given period of time. The Company does not have any credit agreements that require termination or a material change in collateral requirements or payment schedule in the event of a downgrade in the credit ratings of the respective company's securities.
In conjunction with its wholesale marketing and trading activities, MidAmerican Energy must meet credit quality standards as required by counterparties. MidAmerican Energy has energy trading agreements that, in accordance with industry practice, either specifically require it to maintain investment grade credit ratings or provide the right for counterparties to demand "adequate assurances" in the event of a material adverse change in MidAmerican Energy's creditworthiness. If one or more of MidAmerican Energy's credit ratings decline below investment grade, MidAmerican Energy may be required to post cash collateral, letters of credit or other similar credit support to facilitate ongoing wholesale marketing and trading activities. As of March 31, 2004, MidAmerican Energy's estimated potential collateral requirements totaled approximately $119 million. MidAmerican Energy's collateral requirements could fluctuate considerably due to seasonality, market price volatility, and a loss of key MidAmerican Energy generating facilities or other related factors.
Yorkshire Power Group Limited, a subsidiary of CE Electric UK, entered into certain currency rate swap agreements for its Yankee Bonds with three large multi-national financial institutions. The swap agreements effectively convert the U.S. dollar fixed interest rate to a fixed rate in Sterling. For the $281.1 million of the 6.496% Yankee Bonds outstanding at March 31, 2004, the agreements extend until February 25, 2008 and convert the U.S. dollar interest rate to a fixed Sterling rate ranging from 7.3175% to 7.345%. The estimated fair value of these swap agreements at March 31, 2004 was $71.5 million based on quotes from the counterparties to these instruments and represents the estimated amount that the Company would expect to pay if these agreements were terminated. Certain of these counterparties have the option to terminate the swap agreements and demand payment of the fair value of the swaps if Yorkshire Power Group Limited's credit ratings from the three recognized credit rating agencies decline below investment grade. As of March 31, 2004, Yorkshire Power Group Limited's credit ratings from the three recognized credit rating agencies were investment grade; however, if the ratings fell below investment grade, payment requirements would have been approximately $33.3 million.
REGULATORY MATTERS
MidAmerican Energy
Under two settlement agreements approved by the Iowa Utilities Board ("IUB"), MidAmerican Energy's Iowa retail electric rates are effectively frozen through December 31, 2010. The settlement agreements specifically allow the filing of electric rate design or cost of service rate changes that are intended to keep MidAmerican Energy's overall Iowa retail electric revenue unchanged, but could result in changes to individual tariffs. The settlement agreements also each provide that portions of revenues associated with Iowa retail electric returns on equity within specified ranges will be recorded as a regulatory liability to be used to offset a portion of the cost to Iowa customers of future generating plant investment.
Under the first settlement agreement, which was approved by the IUB on December 21, 2001, and is effective through December 31, 2005, an amount equal to 50% of revenues associated with returns on equity between 12% and 14%, and 83.33% of revenues associated with returns on equity above 14%, in each year is recorded as a regulatory liability. The second settlement agreement, which was filed in conjunction with MidAmerican Energy's application for ratemaking principles on a wind power project and was approved by the IUB on October 17, 2003, provides that during the period January 1, 2006 through December 31, 2010, an amount equal to 40% of revenues associated with returns on equity between 11.75% and 13%, 50% of revenues associated with returns on equity between 13% and 14%, and 83.3% of revenues associated with returns on equity above 14%, in each year will be recorded as a regulatory liability. An amount equal to the regulatory liability is recorded as a regulatory charge in depreciation and amortization expense when the liability is accrued. Future depreciation will be reduced as a result of the credit applied to generating plant balances as the regulatory liability is reduced. The liability is being reduced as it is credited against plant in service in amounts equal to the allowance for funds used during construction associated with generating plant additions. Interest expense is accrued on the portion of the regulatory liability balance recorded in prior years. As of March 31, 2004 and December 31, 2003, the related regulatory liability reflected on the consolidated balance sheets within other long-term accrued liabilities was $173.2 million and $144.4 million, respectively.
The 2003 settlement agreement also provides that if Iowa retail electric returns on equity fall below 10% in any consecutive 12-month period after January 1, 2006, MidAmerican Energy may seek to file for a general increase in rates. However, prior to filing for a general increase in rates, MidAmerican Energy is required by the settlement agreement to conduct 30 days of good faith negotiations with all of the signatories to the settlement agreement to attempt to avoid a general increase in rates. Also, if MidAmerican Energy does not construct the wind power facilities by December 31, 2006, the rate extension from January 1, 2006, through December 31, 2010, may terminate.
Illinois bundled electric rates are frozen until 2007, subject to certain exceptions allowing for increases, at which time bundled rates are subject to cost-based ratemaking. Illinois law provides for Illinois earnings above a computed level of return on common equity to be shared equally between regulated retail electric customers and MidAmerican Energy. MidAmerican Energy's computed level of return on common equity is based on a rolling two-year average of the Monthly Treasury Long-Term Average Rate, as published by the Federal Reserve System, plus a premium of 8.5% for 2000 through 2004 and a premium of 12.5% for 2005 and 2006. The two-year average above which sharing must occur for 2003 was 13.73%. The law allows MidAmerican Energy to mitigate the sharing of earnings above the threshold return on common equity through accelerated recovery of electric assets.
Kern River
Kern River was required to file a general rate case no later than May 1, 2004 pursuant to the terms of its Federal Energy Regulatory Commission ("FERC") Docket No. RP99-274 rate case settlement. Kern River filed its rate case on April 30, 2004 which supports a revenue increase of approximately $40.1 million representing a 13% increase from its existing cost of service and a proposed overall cost of service of $347.4 million. Since its last rate case, Kern River has increased the capacity of its system from 724,500 decatherm ("Dth") per day to 1,755,626 Dth per day at a cost of approximately $1.3 billion resulting in a total rate base of approximately $1.8 billion. Kern River proposed that the rate increase should be effective as of June 1, 2004, although it anticipates that the FERC will suspend the effectiveness of the rate increase until November 1, 2004.
Northern Natural Gas
Northern Natural Gas has implemented a straight fixed variable rate design which provides that all fixed costs assignable to firm capacity customers, including a return on equity, are to be recovered through fixed monthly demand or capacity reservation charges which are not a function of throughput volumes.
On May 1, 2003, Northern Natural Gas filed a request for increased rates with
the FERC. The rate increase is primarily attributable to four main cost areas:
the capital investment made by Northern Natural Gas in the five years since its
last rate case, an increase in Northern Natural Gas' depreciation rates,
increased return on equity, and changes in the level of contract entitlement.
The rate filing provides evidence in support of a $71 million increase to
Northern Natural Gas' annual revenue requirement. However, Northern Natural Gas
is requesting that only $55 million of this increase be effectuated. Northern
Natural Gas' new rates went into effect November 1, 2003, subject to refund.
Additionally, Northern Natural Gas filed on January 30, 2004 with the FERC to
increase its revenue requirement by an incremental $30 million to that requested
in the May 1, 2003 filing. The increased rates are primarily attributable to
ongoing pipeline integrity initiative costs that Northern Natural Gas has
undertaken since the May 1, 2003 rate filing. The FERC suspended the rate
increase until August 1, 2004 and consolidated the 2003 and 2004 rate cases due
to the similarity of issues in both cases and the updated costs. A hearing on
the consolidated cases is scheduled for January 2005.
CE Electric UK
The majority of the revenue of the Distribution License Holders ("DLHs") in the United Kingdom is controlled by a distribution price control formula which is set out in the license of each DLH. It has been the practice of the Office of Gas and Electricity Markets ("Ofgem") (and its predecessor body, the Office of Electricity Regulation), to review and reset the formula at five-year intervals, although the formula may be further reviewed at other times at the discretion of the regulator. Any such resetting of the formula requires the consent of the DLH. If the DLH does not consent to the formula reset, it is reviewed by the United Kingdom's competition authority, whose recommendations can then be given effect by license modifications made by Ofgem.
The current formula requires that regulated distribution income per unit is increased or decreased each year by RPI-Xd where RPI means the Retail Price Index ("RPI"), reflecting the average of the 12-month inflation rates recorded for each month in the previous July to December period. The Xd factor in the formula was established by Ofgem at the last price control review (and continues to be set) at 3%. The formula also takes account of the changes in system electrical losses, the number of customers connected and the voltage at which customers receive the units of electricity distributed. The distribution price control formula determines the maximum average price per unit of electricity distributed (in pence per kWh) which a DLH is entitled to charge. The distribution price control formula permits DLHs to receive additional revenue due to increased distribution of units and a predetermined increase in end users. The price control does not seek to constrain the profits of a DLH from year to year. It is a control on revenue that operates independently of most of the DLH's costs. During the lifetime of the price control, cost savings or additional costs have a direct impact on profit.
The procedure and methodology adopted at a price control review is at the reasonable discretion of Ofgem. At the last such review, concluded in 1999 and effective April 2000, Ofgem's judgment of the future allowed revenue of licensees was based upon, among other things:
o the actual operating costs of each of the licensees;
o the operating costs which each of the licensees would incur if it were as efficient as, in Ofgem's judgment, the most efficient licensee;
o the regulatory value to be ascribed to each of the licensees' distribution network assets;
o the allowance for depreciation of the distribution network assets of each of the licensees;
o the rate of return to be allowed on investment in the distribution network assets by all licensees; and
o the financial ratios of each of the licensees and the license requirement for each licensee to maintain an investment grade status.
As a result of the last review, the allowed revenue of NED's distribution business was reduced by 24%, in real terms, and the allowed revenue of YED's distribution business was reduced by 23%, in real terms, with effect from April 1, 2000. The range of reductions for all licensees in Great Britain was between 4% and 33%.
Ofgem has commenced the process of reviewing each DLH's existing price control formula, with a revised formula for each DLH (including NED and YED) expected to take effect from April 1, 2005 for an expected period of five years. To date, the process has involved the collection of data from each DLH via written submissions and meetings with representatives of the various companies. It is expected that Ofgem will announce preliminary proposals for the new price control formulas for the DLHs in June, 2004, with the final proposals issued in November, 2004. Each DLH will then have until December, 2004 to accept or reject the proposals, which if accepted will be implemented through a license modification in the first quarter of 2005, having effect from April 1, 2005.
COMMITMENTS AND CONTINGENCIES
There have been no material changes in commitments and contingencies from the information provided in the Company's Annual Report on Form 10-K for the year ended December 31, 2003, other than the item described below. Refer to Note 7 of Notes to the Consolidated Financial Statements for more discussion on commitments and contingencies.
CE Casecnan Construction Contract Arbitration
The Casecnan project was constructed pursuant to a fixed-price, date-certain, turnkey construction contract by a consortium consisting of Cooperativa Muratori Cementisti CMC di Ravenna and Impresa Pizzarotti & C. Spa. (collectively, the "Contractor"), working together with Siemens A.G., Sulzer Hydro Ltd., Black & Veatch and Colenco Power Engineering Ltd.
In 2001, the Contractor filed a Request for Arbitration (and two supplements) with the International Chamber of Commerce ("ICOC") seeking schedule relief of up to 153 days, compensation for alleged additional costs of approximately $4 million and compensation for damages of approximately $62 million resulting from alleged force majeure events (and geologic conditions). The Contractor further alleged that the circumstances surrounding the placing of the Casecnan project into commercial operation in December 2001 amounted to a repudiation of the construction contract resulting in a claim for unspecified quantum meruit damages, and that the delay liquidated damages clause which provides for payments of $125,000 per day to CE Casecnan for each day of delay in completion of the Casecnan project was unenforceable.
On November 7, 2002, the ICOC issued the arbitration tribunal's partial award with respect to the Contractor's force majeure and geological claims. The arbitration panel awarded the Contractor 18 days of schedule relief in the aggregate for all of the force majeure events and awarded the Contractor $3.8 million to the extent losses are not covered by insurance. All of the Contractor's other claims with respect to force majeure and geologic conditions were denied.
On April 7, 2004, CE Casecnan entered into an agreement with the Contractor settling the ICOC arbitration. Pursuant to the settlement agreement, on April 14, 2004, CE Casecnan received $18.9 million from the Contractor and the Contractor and CE Casecnan executed mutual releases and agreed to dismiss the arbitration. An amount of $24.4 million will be recorded as a reduction of properties, plants and equipment in the second quarter of 2004, reflecting the receipt of the Contractor payment and the release of other costs accrued in connection with the arbitration proceedings.
NEW ACCOUNTING PRONOUNCEMENTS
In December 2003, the FASB issued FASB Interpretation No. 46R ("FIN 46R") which served to clarify guidance in FASB Interpretation No. 46 "Consolidation of Variable Interest Entities, an Interpretation of Accounting Research Bulletin No. 51" ("FIN 46"), and provided additional guidance surrounding the application of FIN 46. The Company adopted and applied the provisions of FIN 46R, related to certain finance subsidiaries, as of October 1, 2003. The adoption required the deconsolidation of certain finance subsidiaries, which resulted in the amounts previously classified as mandatorily redeemable preferred securities of subsidiary trusts, in the amount of $1.9 billion, being reclassified to parent company subordinated debt in the accompanying consolidated balance sheet. In addition, the associated amounts previously recorded in minority interest and preferred dividends are now recorded as interest expense in the accompanying consolidated statement of operations. For quarter ended March 31, 2004, the Company has recorded $50.2 million of interest expense related to these securities. In accordance with the requirements of FIN 46R, no amounts prior to adoption on October 1, 2003 have been reclassified. The amount included in minority interest and preferred dividends related to these securities for the quarter ended March 31, 2003 was $55.1 million. The Company adopted the provisions of FIN 46R related to non-special purpose entities in the first quarter of 2004. The Company has considered the provisions of FIN 46R for all subsidiaries and their related power purchase, power sale, or tolling agreements. Factors considered in the analysis include the duration of the agreements, how capacity and energy payments are determined, source and payment terms for fuel, as well as responsibility and payment for operating and maintenance expenses. As a result of these considerations, the Company has determined its power purchase, power sale and tolling agreements do not represent significant variable interests. Accordingly, the Company has concluded that it is appropriate to continue to consolidate its power plant projects.
In January 2004, the FASB issued FASB Staff Position No. 106-1 ("FSP 106-1"), Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003. FSP 106-1 permits a sponsor of a postretirement health care plan that provides a prescription drug benefit to make a one-time election to defer accounting for the effects of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (the "Medicare Act"), which was
signed into law on December 8, 2003. The Medicare Act introduced a prescription drug benefit under Medicare, as well as a federal subsidy to sponsors of retiree health care benefit plans that provide a benefit that is at least actuarially equivalent to Medicare. These provisions of the new law will affect accounting measurements of the Company's postretirement benefit obligation and expense. As permitted by FSP 106-1, the Company made a one-time election to defer accounting for the effect of the Medicare Act until specific authoritative guidance is issued. Therefore, the amounts included in the consolidated financial statements related to the Company's postretirement benefit plans do not reflect the effects of the Medicare Act.
CRITICAL ACCOUNTING POLICIES
The preparation of financial statements and related documents in conformity with accounting principles generally accepted in the United States of America requires management to make judgments, assumptions and estimates that affect the amounts reported in the consolidated financial statements and accompanying notes. Note 2 to the Company's consolidated financial statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 2003 describes the significant accounting policies and methods used in the preparation of the consolidated financial statements. Estimates are used for, but not limited to, the effects of certain types of regulation, impairment of long-lived assets, contingent liabilities and the accounting for revenue. Actual results could differ from these estimates.
For additional discussion of the Company's critical accounting policies, see "Management's Discussion and Analysis of Financial Condition and Results of Operations" included in the Company's Annual Report on Form 10-K for the year ended December 31, 2003. The Company's critical accounting policies have not changed materially since December 31, 2003.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
For quantitative and qualitative disclosures about market risk affecting MEHC, see Item 7A "Qualitative and Quantitative Disclosures About Market Risk" of MEHC's Annual Report on Form 10-K for the year ended December 31, 2003. MEHC's exposure to market risk has not changed materially since December 31, 2003.
ITEM 4. CONTROLS AND PROCEDURES.
An evaluation was performed under the supervision and with the participation of the Company's management, including the chief executive officer and chief financial officer, regarding the effectiveness of the design and operation of the Company's disclosure controls and procedures (as defined in Rule 13a-15(e) promulgated under the Securities and Exchange Act of 1934, as amended) as of March 31, 2004. Based on that evaluation, the Company's management, including the chief executive officer and chief financial officer, concluded that the Company's disclosure controls and procedures were effective. There have been no significant changes in the Company's internal controls or in other factors that could significantly affect internal controls.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
There have been no material changes in legal proceedings from the information provided in Item 3. of the Company's Annual Report on Form 10K for the year ended December 31, 2003 other than the CE Casecnan Construction Contract Arbitration. On April 7, 2004, CE Casecnan entered into an agreement with the Contractor settling the ICOC arbitration. Pursuant to the settlement agreement, on April 14, 2004, CE Casecnan received $18.9 million from the Contractor and the Contractor and CE Casecnan executed mutual releases and agreed to dismiss the arbitration. An amount of $24.4 million will be recorded as a reduction of properties, plants and equipment in the second quarter of 2004, reflecting the receipt of the Contractor payment and the release of other costs accrued in connection with the arbitration proceedings.
ITEM 2. CHANGES IN SECURITIES, USE OF PROCEEDS AND ISSUER PURCHASES OF EQUITY SECURITIES.
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not applicable.
ITEM 5. OTHER INFORMATION.
Not applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
The exhibits listed on the accompanying Exhibit Index are filed as part of this Quarterly Report.
(b) Reports on Form 8-K:
MEHC filed the following Current Reports on Form 8-K during the first quarter of 2004:
o MEHC filed a Current Report on Form 8-K on January 23, 2004.
o MEHC filed a Current Report on Form 8-K on January 30, 2004.
o MEHC filed a Current Report on Form 8-K on February 12, 2004.
o MEHC filed a Current Report on Form 8-K on February 18, 2004.
o MEHC filed a Current Report on Form 8-K on March 1, 2004.
o MEHC filed a Current Report on Form 8-K on March 30, 2004.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
/s/ Patrick J. Goodman
---------------------
Date: May 4, 2004 Patrick J. Goodman
Senior Vice President and Chief Financial Officer
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EXHIBIT INDEX
10.68 Fiscal Agency Agreement, dated as of May 4, 1993, among Northern
Natural Gas Company, Enron Corp. and Continental Bank, National
Association, Fiscal Agent, relating to the $100,000,000 in principal
amount of the 6.875% Senior Notes due 2005.
10.69 Fiscal Agency Agreement, dated as of September 4, 1998, between
Northern Natural Gas Company and Chase Bank of Texas, National
Association, Fiscal Agent, relating to the $150,000,000 in principal
amount of the 6.75% Senior Notes due 2008.
10.70 Fiscal Agency Agreement, dated as of May 24, 1999, between Northern
Natural Gas Company and Chase Bank of Texas, National Association,
Fiscal Agent, relating to the $250,000,000 in principal amount of the
7.00% Senior Notes due 2011.
10.71 Trust Indenture, dated as of September 10, 1999, between Cordova
Funding Corporation and Chase Manhattan Bank and Trust Company,
National Association, Trustee, relating to the $225,000,000 in
principal amount of the 8.75% Senior Secured Bonds due 2019.
10.72 Indenture, dated as of December 15, 1997, among CE Electric UK
Funding Company, The Bank of New York, as Trustee, and Banque
Internationale A Luxembourg S.A., as Paying Agent.
10.73 First Supplemental Indenture, dated as of December 15, 1997, among CE
Electric UK Funding Company, The Bank of New York, Trustee, and Banque
Internationale A Luxembourg S.A., Paying Agent, relating to the
$125,000,000 in principal amount of the 6.853% Senior Notes due 2004
and to the $237,000,000 in principal amount of the 6.995% Senior Notes
due 2007.
10.74 Trust Deed, dated as of February 4, 1998 among Yorkshire Power
Finance Limited, Yorkshire Power Group Limited and Bankers Trustee
Company Limited, Trustee, relating to the (pound) 200,000,000 in
principal amount of the 7.25% Guaranteed Bonds due 2028.
10.75 First Supplemental Trust Deed, dated as of October 1, 2001, among
Yorkshire Power Finance Limited, Yorkshire Power Group Limited and
Bankers Trustee Company Limited, Trustee, relating to the
(pound)200,000,000 in principal amount of the 7.25% Guaranteed Bonds
due 2028.
10.76 Third Supplemental Trust Deed, dated as of October 1, 2001, among
Yorkshire Electricity Distribution plc, Yorkshire Electricity Group
PLC and Bankers Trustee Company Limited, Trustee, relating to the
(pound)200,000,000 in principal amount of the 9.25% Bonds due 2020.
10.77 Indenture, dated as of February 1, 1998, and Second Supplemental
Indenture, dated as of February 25, 1998, each among Yorkshire Power
Finance Limited, Yorkshire Power Group Limited, The Bank of New York,
Trustee, and Banque Internationale du Luxembourg S.A., Paying Agent,
relating to the $300,000,000 in principal amount of the 6.496% Notes
due 2008.
10.78 Indenture, dated as of February 1, 2000, among Yorkshire Power
Finance 2 Limited, Yorkshire Power Group Limited and The Bank of New
York, Trustee.
10.79 First Supplemental Indenture, dated as of February 16, 2000, among
Yorkshire Power Finance 2 Limited, Yorkshire Power Group Limited and
The Bank of New York, Trustee, relating to the (pound)155,000,000 in
principal amount of the Reset Senior Notes due 2020.
10.80 Trust Agreement, dated as of February 1, 2000, among Yorkshire Power
Group Limited, YPG Holdings LLC and The Bank of New York, Trustee,
relating to the $250,000,000 in principal amount of the 8.25%
Pass-Through Asset Trust Securities due 2005.
10.81 First Supplemental Trust Deed, dated as of September 27, 2001, among
Northern Electric Finance plc, Northern Electric plc, Northern
Electric Distribution Limited and The Law Debenture Trust Corporation
p.l.c., Trustee, relating to the (pound)100,000,000 in principal
amount of the 8.625% Guaranteed Bonds due 2005 and to the
(pound)100,000,000 in principal amount of the 8.875% Guaranteed Bonds
due 2020.
-30-
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10.82 Stock Redemption Agreement, dated as of January 8, 2004, between
David L. Sokol and MidAmerican Energy Holdings Company.
10.83 Trust Deed, dated as of January 17, 1995, between Yorkshire
Electricity Group plc and Bankers Trustee Company Limited, Trustee,
relating to the (pound)200,000,000 in principal amount of the 9 1/4%
Bonds due 2020.
31.1 Chief Executive Officer's Certificate Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2 Chief Financial Officer's Certificate Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
32.1 Chief Executive Officer's Certificate Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
32.2 Chief Financial Officer's Certificate Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
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EXHIBIT 31.1
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, David L. Sokol, certify that:
1. I have reviewed this quarterly report on Form 10-Q of MidAmerican Energy Holdings Company;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: May 4, 2004
/s/ David L. Sokol
------------------
David L. Sokol
Chief Executive Officer
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EXHIBIT 31.2
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Patrick J. Goodman, certify that:
1. I have reviewed this quarterly report on Form 10-Q of MidAmerican Energy Holdings Company;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: May 4, 2004
/s/ Patrick J. Goodman
----------------------
Patrick J. Goodman
Senior Vice President and Chief Financial Officer
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EXHIBIT 32.1
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
I, David L. Sokol, President of MidAmerican Energy Holdings Company (the "Company"), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1) the Quarterly Report on Form 10-Q of the Company for the quarterly period ended March 31, 2004 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
Date: May 4, 2004
/s/ David L. Sokol
------------------
David L. Sokol
Chief Executive Officer
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EXHIBIT 32.2
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
I, Patrick J. Goodman, Senior Vice President and Chief Financial Officer of
MidAmerican Energy Holdings Company (the "Company"), certify, pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to
the best of my knowledge:
(1) the Quarterly Report on Form 10-Q of the Company for the quarterly period ended March 31, 2004 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
Date: May 4, 2004
/s/ Patrick J. Goodman
----------------------
Patrick J. Goodman
Senior Vice President and Chief Financial Officer
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EXHIBIT 10.68
FISCAL AGENCY AGREEMENT
Among
NORTHERN NATURAL GAS COMPANY,
Issuer
ENRON CORP.,
Guarantor
and
CONTINENTAL BANK, NATIONAL ASSOCIATION,
Fiscal Agent
Dated as of May 4, 1993
6 7/8% Senior Notes due May 1, 2005
TABLE OF CONTENTS
Page
RECITALS OF THE ISSUER 1
RECITALS OF THE GUARANTOR 1
1. The Securities 1
(a) General 1
(b) Form of Securities and Guarantees;
Denominations of Securities 2
(c) Temporary Securities 2
(d) Legends 2
(e) Book-Entry Provisions 3
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2. Fiscal Agent; Other Agents 3
3. Authentication 4
4. Payment and Cancellation 4
(a) Payment 4
(b) Cancellation 5
5. Exchange of Securities 5
6. Register; Record Date for Certain Actions 6
7. Delivery of Certain Information 7
(a) Non-Reporting Issuer 7
(b) Non-Reporting Guarantor 7
(c) Information After Three Years 7
(d) Periodic Reports 8
8. Conditions of Fiscal Agent's Obligations 8
(a) Compensation and Indemnity 8
(b) Agency 9
(c) Advice of Counsel 9
(d) Reliance 9
(e) Interest in Securities, etc. 9
(f) Certifications 9
(g) No implied Obligations 9
(h) No Liability 9
(i) No Inquiry 9
9. Resignation and Appointment of Successor 10
(a) Fiscal Agent and Paying Agent 10
(b) Resignation 10
(c) Successors 10
(d) Acknowledgement 11
(e) Merger, Consolidation, etc. 11
10. Payment of Taxes 11
11. Assumption of the Securities by the Guarantor 11
12. Amendments 12
(a) Approval 12
(b) Binding Nature of Amendments, Notice,
Notations, etc. 12
(c) "Outstanding" Defined 13
13. Governing Law 13
14. Notices 13
15. Defeasance (Legal and Covenant) 14
(a) Issuer's and Guarantor's Option to
Effect Defeasance or Covenant 14
Defeasance
(b) Defeasance and Discharge 14
(c) Covenant Defeasance 14
(d) Conditions to Defeasance and Covenant
Defeasance 14
(e) Deposit in Trust; Miscellaneous 16
(f) Reinstatement 16
16. Headings 16
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17. Counterparts 16
18. Successors and Assigns 17
19. Separability Clause 17
EXHIBIT A FORM OF SECURITY
EXHIBIT B FORM OF GUARANTEE
NOTE: This table of contents shall not be deemed to be
a part of the Fiscal Agency Agreement for any purpose.
FISCAL AGENCY AGREEMENT, dated as of May 4, 1993, among NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the laws of the State of Delaware (the "Issuer"), ENRON CORP., a corporation duly organized under the laws of the State of Delaware (the "Guarantor") and CONTINENTAL BANK, NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States of America, as Fiscal Agent.
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of an issue of its 6 7/8% Senior Notes due May 1, 2005 (herein called the "Securities") of substantially the tenor and amount hereinafter set forth, and to provide therefor the Issuer has duly authorized the execution and delivery of this Fiscal Agency Agreement.
All things necessary to make the Securities, when executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid obligations of the Issuer, and to make this Fiscal Agency Agreement a valid agreement of the Issuer, in accordance with their and its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the Guarantees (as defined below) provided for herein, and to provide therefor the Guarantor has duly authorized the execution and delivery of this Fiscal Agency Agreement.
All things necessary to make the Guarantees, when endorsed on the Securities to which they relate and executed by the Guarantor, the valid obligations of the Guarantor, and to make this Fiscal Agency Agreement a valid agreement of the Guarantor, in accordance with their and its terms, have been done.
1. The Securities.
(a) General. The aggregate principal amount of Securities which may be authenticated and delivered under this Agreement is limited to $l00,000,000 except for Securities authenticated and delivered upon registration of transfer, or in exchange for, or in lieu of other Securities pursuant to the provisions of this Agreement or the Securities. The Securities will be unconditionally guaranteed as to payment of principal and interest by the Guarantor pursuant to guarantees (the "Guarantees") endorsed upon the Securities and duly executed by the Guarantor.
The Securities shall be known and designated as the 6 7/8% Senior Notes due May 1, 2005 of the Issuer. The Securities will be unsecured, direct, unconditional and general obligations of the Issuer and will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer. The Securities will cease to be obligations of the Issuer if they are assumed by the Guarantor pursuant to Section 11 hereof.
(b) Form of Securities and Guarantees; Denominations of Securities. The Securities will be issued in registered form without coupons in substantially the form of Exhibit A hereto and in minimum denominations of $250,000 and in integral multiples of $1,000 in excess of $250,000. The Guarantees will be in substantially the form of Exhibit B hereto. The Securities and the Guarantees shall be executed manually or in facsimile on behalf of the Issuer and the Guarantor, respectively, by its Chairman of the Board, President or a Vice President and by its Secretary or an Assistant Secretary (the "Authorized Officers"), notwithstanding that such officers, or any of them, shall have ceased, for any reason, to hold such offices prior to the authentication and delivery of such Securities or Guarantees, as the case may be, or did not hold such offices at the date of such Securities or Guarantees, as the case may be. The Securities and the Guarantees may also have such additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with the rules of any securities exchange or governmental agency or as may, consistently herewith, be determined by the Authorized Officers of the Issuer executing such Securities and the Authorized Officers of the Guarantor executing the Guarantees endorsed thereon, as conclusively evidenced by their execution of such Securities and Guarantees. All of the Securities and the Guarantees shall be otherwise substantially identical except as to denominations of Securities and as provided herein.
(c) Temporary Securities. Until definitive Securities with
Guarantees endorsed thereon are prepared, the Issuer may execute, and there
shall be authenticated and delivered in accordance with the provisions of
Section 3 hereof (in lieu of definitive printed Securities), temporary
Securities having Guarantees endorsed thereon. Such temporary Securities may be
in registered global form. Such temporary Securities shall be subject to the
same limitations and conditions and entitled to the same rights and benefits as
definitive Securities with Guarantees endorsed thereon, except as provided
herein or therein. Temporary Securities having Guarantees endorsed thereon shall
be exchangeable for definitive Securities with Guarantees endorsed thereon when
such definitive Securities are available for delivery; and upon the surrender
for exchange of such temporary Securities, the Issuer and the Guarantor shall
execute and there shall be authenticated and delivered, in accordance with the
provisions of Sections 5 and 6 hereof, in exchange for such temporary
Securities, a like aggregate principal amount of definitive Securities of like
tenor. The Issuer shall pay all charges, including (without limitation) stamp
and other taxes and governmental charges, incident to any exchange of temporary
Securities for definitive Securities. All temporary Securities shall be
identified as such and shall describe the right of the holder thereof to effect
an exchange for definitive Securities and the manner in which such an exchange
may be effected.
(d) Legends. Securities shall be stamped or otherwise be
imprinted with the legends set forth on the face of the text of the Securities
attached as Exhibit A hereto and any legend pursuant to Section 1(c) or 1(e)
hereof. The legends so provided on the face of the text of the Securities may be
removed from any Security, upon written order signed in the name of the Issuer
by its Chairman of the Board, President or a Vice President and by its Secretary
or an Assistant Secretary and delivered to the Fiscal Agent ("Order"), (i) three
years from the later of issuance of the Security or the date such Security (or
any predecessor) was last acquired from an "affiliate" of the Issuer or the
Guarantor within the meaning of Rule 144 under the Securities Act of 1933, as
amended, (the "Act") or (ii) in connection with a sale made pursuant to the
volume (and other restrictions) of Rule 144 under the Act following two years
from such time, provided that, if the legend is removed and the Security is
subsequently held by such an affiliate of the Issuer or the Guarantor, the
legend shall be reinstated. Any legends provided pursuant to Sections 1(c) and
(e) hereof may be removed as provided in such Sections.
(e) Book-Entry Provisions. This Section 1(e) shall apply only to global Securities deposited with or on behalf of a depository located in the United States (a "U.S. Depository").
The Securities will be issued initially in the form of one or more registered global Securities deposited with or on behalf of a U.S. Depository, that (i) shall be registered in the name of the U.S. Depository for such global Security or Securities or the nominee of such U.S. Depository, (ii) shall be delivered by the Fiscal Agent to such U.S. Depository or pursuant to such U.S. Depository's instruction and (iii) shall bear a legend substantially to the following effect: "Unless this certificate is presented by an authorized representative of [insert name and address of Depository] to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of [insert name of nominee of Depository], or such other name as is requested by an authorized representative of [insert name of Depository], and any payment hereon is made to [insert name of nominee of Depository], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the registered owner hereof, [insert name of nominee of Depository], has an interest herein."
Members of, or participants in, a U.S. Depository ("Agent Members") shall have no rights under this Fiscal Agency Agreement with respect to any global Security held on their behalf by a U.S. Depository or under the global Security, and such U.S. Depository may be treated by the Issuer, the Guarantor, the Fiscal Agent, and any agent of the Issuer, the Guarantor or the Fiscal Agent as the owner of such global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Guarantor, the Fiscal Agent, or any agent of the Issuer, the Guarantor or the Fiscal Agent, from giving effect to any written certification, proxy or other authorization furnished by a U.S. Depository or impair, as between a U.S. Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any Security.
So long as the U.S. Depository is the registered owner of Securities, the U.S. Depository will for all purposes of the Securities and this Agreement be considered the sole owner or holder of such Securities. Until such time as definitive Securities may be issued, beneficial owners of Securities will not be entitled to have Securities registered in their names, will not receive or be entitled to receive physical delivery of Securities in definitive form, and will not be considered the owners or holders thereof under this Agreement for any purpose.
If (i) the Issuer notifies the Fiscal Agent in writing that the U.S. Depository is no longer willing or able to act as a depository and the Issuer is unable to locate a qualified successor within 90 days or (ii) the Issuer notifies the Fiscal Agent in writing to cause the issuance of Securities in definitive form, then, upon surrender by the global Security holder of its global Security, Securities in such form will be issued to each person that such global Security holder and the U.S. Depository identifies as the beneficial owner of the related Securities. Upon such issuance, the Fiscal Agent shall register such Securities in the name of, and cause the same to be delivered to, such person or persons (or the nominee thereof).
2. Fiscal Agent; Other Agents.
The Issuer and the Guarantor hereby appoint Continental Bank, National Association acting through its corporate trust office at 231 South LaSalle Street, Chicago, Illinois, as fiscal agent of the Issuer and the Guarantor, in respect of the Securities and the Guarantees, upon the terms and subject to the conditions herein set forth, and Continental Bank, National Association hereby accepts such appointment. Continental Bank, National Association, and any successor or successors as such fiscal agent qualified and appointed in accordance with Section 8 hereof, are herein called the "Fiscal Agent." The Fiscal Agent shall have the powers and authority granted to and conferred upon it in the Securities and the Guarantees and hereby and such further powers and authority to act on behalf of the Issuer and the Guarantor as may be mutually agreed upon by the Issuer, the Guarantor and the Fiscal Agent. All of the terms and provisions with respect to such powers and authority contained in the Securities and the Guarantees are subject to and governed by the terms and provisions hereof.
The Issuer and Guarantor may appoint one or more agents (a "Paying Agent" or "Paying Agents") for the payment (subject to applicable laws and regulations) of the principal of and interest on the Securities, and one or more agents (a "Transfer Agent" or "Transfer Agents") for the transfer and exchange of Securities, at such place or places as the Issuer may determine; provided, however, the Issuer shall at all times maintain a Paying Agent or agent thereof and Transfer Agent or agent thereof in the Borough of Manhattan, The City of New York (which Paying Agent and Transfer Agent may be the Fiscal Agent). The Issuer and Guarantor initially appoint the Fiscal Agent as Paying Agent and Transfer Agent. The Issuer shall promptly notify the Fiscal Agent of the name and address of each Paying Agent and Transfer Agent appointed, and will notify the Fiscal Agent of the resignation or termination of any Paying Agent or Transfer Agent. Subject to the provisions of Section 9(c) hereof, the Issuer and Guarantor may vary or terminate the appointment of any such Paying Agent or Transfer Agent at any time and from time to time upon giving not less than 90 days' notice to such Paying Agent or Transfer Agent, as the case may be, and to the Fiscal Agent.
The Issuer shall cause notice of any resignation, termination or appointment of any Paying Agent or Transfer Agent or of the Fiscal Agent and of any change in the office through which any such Agent will act to be given as provided in the text of the Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities duly executed on behalf of the Issuer for the purposes of the original issuance of the Securities, (i) to authenticate said Securities in an aggregate principal amount not in excess of $100,000,000 and to deliver said Securities with Guarantees endorsed thereon in accordance with an Order or Orders and (ii) thereafter to authenticate and deliver said Securities with Guarantees endorsed thereon in accordance with the provisions hereinafter set forth.
The Fiscal Agent may, with the consent of the Issuer, appoint by an instrument or instruments in writing one or more agents (which may include itself) for the authentication of Securities and, with such consent, vary or terminate any such appointment upon written notice and approve any change in the office through which any authenticating agent acts. The Issuer (by written notice to the Fiscal Agent and the authenticating agent whose appointment is to be terminated) may also terminate any such appointment at any time. The Fiscal Agent hereby agrees to solicit written acceptances from the entities concerned (in form and substance satisfactory to the Issuer) of such appointments. In its acceptance of such appointment, each such authenticating agent shall agree to act as an authenticating agent pursuant to the terms and conditions of this Agreement.
4. Payment and Cancellation.
(a) Payment. Subject to the following provisions, the Issuer shall provide to the Fiscal Agent in funds available on or prior to each date on which a payment of principal of or any interest on the Securities shall become due, as set forth in the text of the Securities, such amount, in such coin or currency, as is necessary to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and interest, as the case may be, on the Securities set forth herein and in the text of the Securities. The Fiscal Agent shall arrange directly with any Paying Agent who may have been appointed pursuant to the provisions of Section 2 hereof for the payment from funds so paid by the Issuer of the principal of and interest on the Securities as set forth herein and in the text of the Securities. Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent funds for the payment of the principal thereof and premium and interest, if any, payable thereon under an agreement with respect to such funds containing substantially the same terms and conditions set forth in this Section 4(a) and in Section 8(b) hereof; and the Fiscal Agent shall have no responsibility with respect to any funds so provided by the Issuer to any such Paying Agent.
Any interest on the Securities shall be paid, unless otherwise provided
in the text of the Securities, to the persons (the "registered owners") in whose
names such Securities are registered on the register maintained pursuant to
Section 6 hereof at the close of business on the record dates designated in the
text of the Securities. Payments of principal of Securities shall be payable
against surrender thereof at the corporate trust office or office of an agent of
the Fiscal Agent and at the offices of such other Paying Agents as shall have
been appointed pursuant to Section 2 hereof. Payments of principal shall be made
against surrender of Securities, and payments of interest on Securities shall be
made, in accordance with the foregoing and subject to applicable laws and
regulations, by check mailed on or before the due date for such payment to the
person entitled thereto at such person's address appearing on the register of
the Securities maintained pursuant to Section 6 hereof, or, in the case of
payments of principal, to such other address as the registered owner shall
provide in writing at the time of such surrender; provided, however, that such
payments may be made, in the case of a registered owner of greater than
$1,000,000 aggregate principal amount of Securities, by transfer to an account
maintained by the payee with a bank if such registered owner so elects by giving
notice to the Fiscal Agent, not less than 15 days (or such fewer days as the
Fiscal Agent may accept at its discretion) prior to the date of the payments to
be obtained, of such election and of the account to which payment is to be made.
(b) Cancellation. All Securities delivered to the Fiscal Agent (or any other Agent appointed pursuant to Section 2 hereof) for payment, redemption, registration of transfer or exchange as herein or in the Securities provided shall be forwarded to the Fiscal Agent by the Agent to which they are delivered. All such Securities shall be cancelled and destroyed by the Fiscal Agent or such other person as may be jointly designated by the Issuer and the Fiscal Agent, which shall thereupon furnish certificates of such destruction to the Issuer and Guarantor.
5. Exchange of Securities.
The Fiscal Agent, or its agent duly authorized by the Fiscal Agent, is hereby authorized from time to time in accordance with the provisions of the Securities, Section 1(e) and of this Section to authenticate and deliver:
(i) Securities in exchange for or in lieu of Securities of like tenor and of like form which become mutilated, destroyed, stolen or lost; and
(ii) registered Securities of authorized denominations in exchange for a like aggregate principal amount of Securities of like tenor and of like form.
The Securities shall be dated the date of their authentication by the Fiscal Agent. Each Security authenticated and delivered upon any transfer or exchange for or in lieu of the whole or any part of any Security shall carry all the rights if any, to interest accrued and unpaid and to accrue which were carried by the whole or such part of such Security. All Securities issued in exchange for Securities will have Guarantees endorsed thereon. Notwithstanding anything to the contrary herein contained, such new Security shall be so dated that neither gain nor loss in interest shall result from such transfer or exchange.
6. Register; Record Date for Certain Actions.
The Fiscal Agent, as agent of the Issuer and the Guarantor, shall maintain at its corporate trust office in Chicago, Illinois and at its agent's office in the Borough of Manhattan, The City of New York, a register for the Securities for the registration and registration of transfers of the Securities. Upon presentation for the purpose at the said office of the Fiscal Agent or its agent of any Security, accompanied by a written instrument of transfer in the form approved by the Issuer, the Guarantor and the Fiscal Agent (it being understood that, until notice to the contrary is given to holders of Securities, the Issuer, the Guarantor and the Fiscal Agent shall each be deemed to have approved the form of instrument of transfer, if any. printed on any definitive Security), executed by the registered holder, in person or by such holder's attorney thereunto duly authorized in writing, such Security shall be transferred upon the register for the Securities, and a new Security of like tenor shall be authenticated and issued with a Guarantee endorsed thereon in the name of the transferee. Transfers and exchanges of Securities shall be subject to Section 1(e), to such restrictions as shall be set forth in the text of the Securities and to such reasonable regulations as may be prescribed by the Issuer, the Fiscal Agent and the Guarantor. Successive registrations and registrations of transfers as aforesaid may be made from time to time as desired and each such registration shall be noted on the Security register. No service charge shall be made for any registration, registration of transfer or exchange of Securities, but, except as otherwise provided herein with respect to the exchange of temporary Securities for definitive Securities, the Fiscal Agent (and any Transfer Agent or authenticating agent appointed pursuant to Section 2 or 3 hereof, respectively) may require payment of a sum sufficient to cover any stamp or other tax or governmental charge in connection therewith and any other amounts required to be paid by the provisions of the Securities.
Any Transfer Agent appointed pursuant to Section 2 hereof shall provide to the Fiscal Agent such information as the Fiscal Agent may reasonably require in connection with the delivery by such Transfer Agent of Securities in exchange for other Securities.
Neither the Fiscal Agent nor any Transfer Agent shall be required to make registrations of transfer or exchange of Securities during any periods set forth in the text of the Securities.
Upon receipt by the Fiscal Agent of any written demand, request or notice with respect to any matter on which the holders of Securities are entitled to act under this Agreement, a record date shall be established for determining holders of Outstanding Securities entitled to join in such demand, request or notice, which record date shall be at the close of business on the day the Fiscal Agent receives such demand, request or notice. The holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such demand, request or notice, whether or not such holders remain holders after such record date; provided, however, unless the holders of the requisite principal amount of the outstanding Securities shall have joined in such demand, request or notice prior to the day which is the ninetieth day after such record date, such demand, request or notice shall automatically and without further action by any holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a holder, or a proxy of a holder, from giving, (i) after expiration of such 90-day period, a new demand, request or notice identical to a demand, request or notice which has been cancelled pursuant to the proviso in the preceding sentence or (ii) during any such 90-day period, a new demand, request or notice contrary to or different from such demand, request or notice, in either of which events a new record date shall be established pursuant to the provisions of this paragraph.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the persons entitled to consent to or approve any action or waive any term, provision or condition of any covenant of this Agreement. If a record date is fixed, the holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to consent to or approve any such action or waive any such term, provision, condition or covenant, whether or not such holders remain holders after such record date; provided, however, that unless such consent, waiver or approval is obtained from the requisite principal amount of holders of Outstanding Securities, or their duly designated proxies, prior to the date which is the ninetieth day after such record date, any such consent, waiver or approval previously given shall automatically and without further action by any holder be cancelled and of no further effect.
7. Delivery of Certain Information.
(a) Non-Reporting Issuer. Subject to subsection (c), as long as the Issuer is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), at any time, upon the request of a registered holder of a Security, the Issuer, or the Fiscal Agent upon request by and at the expense of the Issuer, will promptly furnish or cause to be furnished "Rule 144A Information" (as defined below) with respect to the Issuer to such holder or to a prospective purchaser of such Security designated by such holder in order to permit compliance by such holder with Rule 144A under the Act in connection with the resale of such Security by such holder. "Rule 144A Information" with respect to the Issuer or the Guarantor shall be such information with respect to it as is specified pursuant to Rule 144A(d) (4) (i) under the Act (or any successor provision thereto) which, at the date of this Agreement, consists of (x) a very brief statement of the nature of the business, products and services of the Issuer or the Guarantor, as the case may be, (which statement shall be as of a date within 12 months prior to the date of the intended resale) and (y) the most recent financial statements of the Issuer or the Guarantor, as the case may be, and its financial statements for the two fiscal years preceding the period covered in the most recent financial statements. Such financial statements of the Issuer or the Guarantor, as the case may be, shall include its balance sheet (as of a date less than 16 months before the date of the intended resale) and its profit and loss and retained earnings statements (for the twelve month period preceding the date of such balance sheet and, if the balance sheet is not as of a date less than six months before the date of the intended resale, the most recent profit and loss and retained earnings statements shall be for the period from the date of such balance sheet to a date less than six months before the date of the intended resale) and shall be audited to the extent reasonably available.
(b) Non-Reporting Guarantor. Subject to subsection (c), at any time that the Guarantor ceases to be subject to Section 13 or 15(d) of the Exchange Act, upon the request of a registered holder of a Security, the Guarantor, or the Fiscal Agent upon request by and at the expense of the Guarantor; will promptly furnish or cause to be furnished Rule 144A Information with respect to the Guarantor to such holder or to a prospective purchaser of such Security designated by such holder in order to permit compliance by such holder with Rule 144A under the Act in connection with the resale by such holder of such Security with a Guarantee endorsed thereon.
(c) Information After Three Years. Neither the Issuer, the Guarantor nor the Fiscal Agent shall be required to furnish Rule 144A Information with respect to the Issuer or the Guarantor as contemplated by subsections (a) and (b), (x) to the holder or a prospective purchaser of a Security in connection with any request made on or after the date which is three years from the later of (i) the date such Security (or any predecessor Security) was acquired from the Issuer or the Guarantor or (ii) the date such Security (or any predecessor Security) was last acquired from an "affiliate" of the Issuer or the Guarantor within the meaning of Rule 144 under the Act or (y) at any time to a prospective purchaser located outside the United States who is not a "U.S. person" within the meaning of Regulation S under the Act.
(d) Periodic Reports. So long as any Securities are Outstanding (as defined in Section 12(c) hereof), each of the Issuer and the Guarantor, or the Fiscal Agent upon request by and at the expense of the Issuer or the Guarantor, as the case may be, will furnish or cause to be furnished to holders of Securities and to the Fiscal Agent, (i) at any time when the Issuer or the Guarantor, as the case may be, is subject to Section 13 or 15(d) of the Exchange Act, copies of its annual and quarterly reports to stockholders and of each report or definitive proxy statement filed with the Securities and Exchange Commission (the "Commission") under the Exchange Act, such reports or statements to be so furnished within 15 days after the due date for filing with the Commission, and (ii) at any time when the Issuer or the Guarantor, as the case may be, is not subject to Section 13 or 15(d) of the Exchange Act, (A) its annual financial statements prepared in accordance with generally accepted accounting principles applied consistently (except as otherwise noted therein) with those of the prior years (together with notes thereto and a report thereon by an independent accounting firm of established national reputation), such report to be so furnished as soon as reasonably available and in any event within 120 days after the end of the fiscal year covered thereby, (B) its unaudited comparative financial statements for each of the first three fiscal quarters and the corresponding quarter of the prior year prepared in accordance with generally accepted accounting principles applied consistently (except as otherwise noted therein) with those of the most recent annual financial statements (which unaudited statements and related notes may be condensed to the extent permitted by Form l0-Q under the Act or any successor form), such statements to be so furnished as soon as reasonably available and in any event within 60 days after the end of the fiscal quarter covered thereby, (C) any other interim reports or financial statements prepared generally for its nonaffiliated investors or lenders, such reports or statements to be so furnished concurrently with their distribution to such investors or lenders, and (D) at each time of delivery of the financial statements in (A), a certificate ("Officers' Certificate") signed by its Chairman of the Board, Vice Chairman of the Board, President or a Vice President and by its Treasurer, Assistant Treasurer, Secretary or an Assistant Secretary, and stating whether or not to the best knowledge of the signers thereof the Issuer or the Guarantor, as the case may be, is in default in the performance and observance of any of the terms, provisions and conditions of the Securities or the Guarantees, as the case may be, or this Agreement and, if the Issuer or the Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
8. Conditions of Fiscal Agent's Obligations.
The Fiscal Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Issuer and the Guarantor agree and to all of which the rights of holders from time to time of Securities are subject:
(a) Compensation and Indemnity. The Fiscal Agent shall be entitled to reasonable compensation as agreed with the Issuer and the Guarantor for all services rendered by it, and the Issuer and the Guarantor agree promptly to pay such compensation and to reimburse the Fiscal Agent for the reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by it in connection with its services hereunder. The Issuer and the Guarantor also agree to indemnify the Fiscal Agent for, and to hold it harmless against, any loss, liability or expense, incurred without negligence or bad faith, arising out of or in connection with its acting as Fiscal Agent hereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Issuer and the Guarantor under this Section 8(a) shall survive payment of all the Securities or the resignation or removal of the Fiscal Agent.
(b) Agency. In acting under this Agreement and in connection with the Securities, the Fiscal Agent is acting solely as agent of the Issuer and the Guarantor and does not assume any responsibility for the correctness of the recitals in the Securities or the Guarantees (except for the correctness of the statement in its certificate of authentication on the Securities) or any obligation or relationship of agency or trust, for or with any of the owners or holders of the Securities, except that all funds held by the Fiscal Agent for the payment of principal of and any interest on the Securities shall be held in trust for such owners or holders, as the case may be, as set forth herein and in the Securities; provided, however, that monies held in respect of the Securities remaining unclaimed at the end of two years after the principal of all of the Securities shall have become due and payable (whether at maturity or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer or the Guarantor, as the case may be, as provided and in the manner set forth in the Securities. Upon such repayment, the aforesaid trust with respect to the Securities shall terminate and all liability of the Fiscal Agent and Paying Agents with respect to such funds shall thereupon cease.
(c) Advice of Counsel. The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer and Guarantor pursuant to Section 2 hereof may consult with their respective counsel or other counsel satisfactory to them, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by them hereunder in good faith and without negligence and in accordance with such opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer and Guarantor pursuant to Section 2 hereof each shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Security, notice, direction, consent, certificate, affidavit, statement, or other paper or document believed by it, in good faith and without negligence, to be genuine and to have been passed or signed by the proper party or parties.
(e) Interest in Securities, etc. The Fiscal Agent, any authenticating agent, and any Paying Agent or Transfer Agent appointed by the Issuer and Guarantor pursuant to Section 2 hereof and their respective officers, directors and employees may become the owners of, or acquire any interest in, any Securities, with the same rights that they would have if they were not the Fiscal Agent, such authenticating agent, such other Paying Agent or Transfer Agent or such person, and may engage or be interested in any financial or other transaction with the Issuer or the Guarantor, and may act on, or as depository, trustee or agent for, any committee or body of holders of Securities or other obligations of the Issuer or Guarantor, as freely as if they were not the Fiscal Agent, such authenticating agent, such other Paying Agent or Transfer Agent or such person.
(f) Certifications. Whenever in the administration of this Agreement the Fiscal Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith or negligence on its part, rely upon a certificate signed by any Authorized Officer of the Issuer or the Guarantor, as the case may be, and delivered to the Fiscal Agent.
(g) No Implied Obligations. The duties and obligations of the Fiscal Agent shall be determined solely by the express provisions of this Agreement, and the Fiscal Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Fiscal Agent.
(h) No Liability. The Fiscal Agent shall not be liable for any interest on any funds held by the Fiscal Agent.
(i) No Inquiry. The Fiscal Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements of the Securities or other documents on the part of the Issuer or as to the existence of any event of default thereunder.
9. Resignation and Appointment of Successor.
(a) Fiscal Agent and Paying Agent. The Issuer and Guarantor agree, for the benefit of the holders from time to time of the Securities and the Guarantees, that there shall at all times be a Fiscal Agent hereunder which shall be a bank or trust company organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, in good standing and having an established place of business or agency in the Borough of Manhattan, The City of New York, and authorized under such laws to exercise corporate trust powers until all the Securities authenticated and delivered hereunder (i) shall have been delivered to the Fiscal Agent for cancellation or (ii) become due and payable and monies sufficient to pay the principal of and any interest on the Securities shall have been made available for payment and either paid or returned to the Issuer or the Guarantor, as the case may be, as provided herein and in such Securities.
(b) Resignation. The Fiscal Agent may at any time resign by giving written notice to the Issuer and the Guarantor of such intention on its part, specifying the date on which its desired resignation shall become effective, provided that such date shall not be less than three (3) months from the date on which such notice is given, unless the Issuer and the Guarantor agree to accept shorter notice. The Fiscal Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed on behalf of the Issuer and the Guarantor and specifying such removal and the date when it shall become effective. Notwithstanding the dates of effectiveness of resignation or removal, as the case may be, to be specified in accordance with the preceding sentences, such resignation or removal shall take effect only upon the appointment by the Issuer and the Guarantor, as hereinafter provided, of a successor Fiscal Agent (which, to qualify as such, shall be a bank or trust company organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, in good standing and having and acting through an established place of business or agency in the Borough of Manhattan, The City of New York, authorized under such laws to exercise corporate trust powers and having a combined capital and surplus in excess of U.S. $20,000,000) and the acceptance of such appointment by such successor Fiscal Agent. Upon its resignation or removal, the Fiscal Agent shall be entitled to payment by the Issuer pursuant to Section 8 hereof of compensation for services rendered and to reimbursement of reasonable out-of-pocket expenses incurred hereunder.
(c) Successors. In case at any time the Fiscal Agent or any Paying Agent in respect of the Securities (if such Paying Agent is the only Paying Agent located in a place where, by the terms of the Securities or this Agreement, the Issuer is required to maintain a Paying Agent) shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they severally mature, or if a receiver of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of the Federal Bankruptcy Act or under the provisions of any similar legislation, or if a receiver of it or its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose or rehabilitation, conservation or liquidation, a successor Fiscal Agent or Paying Agent, as the case may be, qualified as aforesaid, shall be appointed by the Issuer and the Guarantor by an instrument in writing, filed with the successor Fiscal Agent or Paying Agent, as the case may be, and the predecessor Fiscal Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of a successor Fiscal Agent or Paying Agent, as the case may be, and acceptance by such successor of such appointment, the Fiscal Agent or Paying Agent, as the case may be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the case may be, hereunder. If no successor Fiscal Agent or other Paying Agent, as the case may be, shall have been so appointed by the Issuer and the Guarantor and shall have accepted appointment as hereinafter provided, and, in the case of such other Paying Agent, if such other Paying Agent is the only Paying Agent located in a place where, by the terms of the Securities or this Agreement, the Issuer is required to maintain a Paying Agent, then any holder of a Security who has been a bona fide holder of a Security for at least six months, on behalf of himself and all others similarly situated, or the Fiscal Agent may petition any court of competent jurisdiction for the appointment of a successor agent. The Issuer and the Guarantor shall give prompt written notice to each other Paying Agent of the appointment of a successor Fiscal Agent:
(d) Acknowledgement. Any successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Issuer and the Guarantor an instrument accepting such appointment hereunder, and thereupon such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Fiscal Agent hereunder, and such predecessor, upon payment of its compensation, and reimbursement of its disbursements then unpaid, shall thereupon become obligated to transfer, delivery and pay over, and such successor Fiscal Agent shall be entitled to receive, all monies, securities, books, records or other property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, etc. Any corporation into which the Fiscal Agent hereunder may be merged, or any corporation resulting from any merger or consolidation to which the Fiscal Agent shall be a party, or any corporation to which the Fiscal Agent shall sell or otherwise transfer all or substantially all the assets and business of the Fiscal Agent, provided that it shall be qualified as aforesaid, shall be the successor Fiscal Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
10. Payment of Taxes.
The Issuer or the Guarantor, as the case may be, will pay all stamp and other duties, if any, which may be imposed by the United States of America or any political subdivision thereof or taxing authority of or in the foregoing with respect to this Agreement or the issuance of the Securities or the Guarantees.
11. Assumption of the Securities by the Guarantor.
The Guarantor may assume the obligations of the Issuer (or any corporation which shall have previously assumed the obligations of the Issuer pursuant to Paragraph 8 of the Securities), under the Securities in whole but not in part, at any time on or after November 12, 1993 for the due and punctual payment of the principal of and interest on, the Securities and the performance of every covenant of this Agreement and the Securities on the part of the Issuer to be performed or observed, provided that as conditions to such assumption:
(a) the Guarantor shall expressly assume such obligations by an amendment to this Agreement, executed by the Guarantor, and delivered to the Fiscal Agent;
(b) the Guarantor shall have sent, or the Fiscal Agent upon request by and at the expense of the Guarantor shall have sent, to each holder of Securities at its address set forth in the Securities Register at least 30 days prior to the effectiveness of such assumption a notice stating that the Guarantor was electing to assume the Issuer's obligations under the Securities and this Agreement in accordance with this Section 11, setting forth the anticipated effective date of such assumption and stating that upon such assumption the Issuer will be released from its liability as obligor upon the Securities and this Agreement;
(c) the Guarantor shall deliver to the Fiscal Agent an opinion of counsel to the effect that holders of the Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of such assumption and that holders of the Securities will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such assumption had not occurred;
(d) immediately after giving effect to such transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and
(e) the Guarantor shall have delivered to the Fiscal Agent an
Officers' Certificate of the Guarantor and an opinion of counsel, each
stating that such assumption and such amendment comply with this
Section 11 and that all conditions precedent in this Agreement and in
the Securities relating to such transaction have been complied with.
Such assumption shall become effective on the date the conditions set forth above are satisfied. Upon any such assumption, the Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Agreement and in the Securities with the same effect as if the Guarantor had been named as the Issuer herein and in the Securities, and the Issuer (or any successor corporation which shall theretofore have become such), shall be released from its liability as obligor upon the Securities and under this Agreement. Upon such assumption by the Guarantor, the Securities will become unsecured, direct, unconditional and general obligations of the Guarantor ranking pari passu with all other unsecured and unsubordinated indebtedness of the Guarantor.
12. Amendments.
(a) Approval. With the written consent of the registered owners of not less than a majority in aggregate principal amount of the Securities then Outstanding (or of such other percentage as may be set forth in the text of the Securities with respect to the action being taken), the Issuer, the Guarantor and the Fiscal Agent may modify, amend or supplement the terms of the Securities, the Guarantees and this Agreement in any way, and the holders of Securities may make, take or give any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement or the Securities to be made, given or taken by holders of Securities; provided, however, that no such action may, without the consent of the holder of each Security affected thereby, (A) change the due date for the payment of the principal of or any installment of interest on any Security, (B) reduce the principal amount of any Security or the interest rate thereon or any premium payable upon the redemption thereof, (C) change the coin or currency in which or the place at which payment with respect to interest or principal in respect of Securities are payable as required by the proviso of the first sentence of the second paragraph of Section 2 hereof, (D) modify the Guarantees in a manner materially adverse to the holders of the Securities, or (E) reduce the proportion of the principal amount of Securities, the consent of the holders of which is necessary to modify, amend or supplement this Agreement or the terms and conditions of the Securities or to make, take or give any request, demand, authorization, direction, notice, consent, waiver or other action provided hereby or thereby to be made, taken or given. The Issuer, the Guarantor and the Fiscal Agent may, without the consent of any holder of Securities, amend this Agreement, the Securities or the Guarantees for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision thereof, hereof, or in any manner which the Issuer, the Guarantor and the Fiscal Agent may determine that shall not be inconsistent with the Securities and Guarantees and shall not adversely affect the interest of any holder of Securities and related Guarantees.
It shall not be necessary for the consent of the holders of Securities to approve the particular form of any proposed modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action, but it shall be sufficient if such consent shall approve the substance thereof.
(b) Binding Nature of Amendments, Notice, Notations, etc. Any instrument given by or on behalf of any holder of a Security in connection with any consent to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action will be irrevocable once given and will be conclusive and binding on all subsequent holders of such Security or any Security issued directly or indirectly in exchange or substitution therefor or in lieu thereof. Any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action will be conclusive and binding on all holders of Securities, whether or not they have given such consent, and whether or not notation of such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action is made upon the Securities. Notice of any modification or amendment of, supplement to, or request, demand, authorization, direction, notice, consent, waiver or other action with respect to the Securities, the Guarantees or this Agreement (other than for purposes of curing any ambiguity or of curing, correcting or supplementing any defective provision hereof or thereof) shall be given to each holder of Securities affected thereby, in all cases as provided in the Securities.
Securities authenticated and delivered after the effectiveness of any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may bear a notation in the form approved by the Fiscal Agent, the Issuer and the Guarantor as to any matter provided for in such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action. New Securities modified to conform, in the opinion of the Fiscal Agent, the Issuer and the Guarantor, to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may be prepared by the Issuer and the Guarantor, authenticated by the Fiscal Agent (or any authenticating agent appointed pursuant to Section 3 hereof) and delivered in exchange for Outstanding Securities.
(c) "Outstanding" Defined. For purposes of the provisions of this Agreement and the Securities, any Security authenticated and delivered pursuant to this Agreement shall, as of any date of determination, be deemed to be "Outstanding", except:
(i) Securities theretofore cancelled by the Fiscal Agent or delivered to the Fiscal Agent for cancellation or held by the Fiscal Agent for reissuance but not reissued by the Fiscal Agent;
(ii) Securities which have become due and payable at maturity or otherwise and with respect to which monies sufficient to pay the principal thereof and any interest thereon shall have been made available to the Fiscal Agent; or
(iii) Securities which have been defeased pursuant to
Section 15(b) hereof; or
(iv) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to this Agreement;
provided, however, that in determining whether the holders of the requisite principal amount of Outstanding Securities have consented to any request, demand, authorization, direction, notice, consent, waiver, amendment, modification or supplement hereunder, Securities owned directly or indirectly by the Issuer or Guarantor or any affiliate of the Issuer or Guarantor shall be disregarded and deemed not to be Outstanding.
13. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
14. Notices.
All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing and if sent to the Fiscal Agent shall be delivered, transmitted by facsimile, telexed or telegraphed to it at 231 South LaSalle Street, Chicago, Illinois 60697, Attention: Kathy Kruzich, facsimile no. (312) 828-6052 or if sent to the Issuer shall be delivered, transmitted by facsimile, telexed or telegraphed to it at 1400 Smith Street, Houston, Texas 77002, Attention: Rodney L. Gray, Senior Vice President and Treasurer, facsimile no. (713) 758-8093, or if sent to the Guarantor shall be delivered, transmitted by facsimile, telexed or telegraphed to it at 1400 Smith Street, Houston, Texas 77002, Attention: Rodney L. Gray, Senior Vice President, Finance and Treasurer, facsimile no. (713) 758-8093. The foregoing addresses for notices or communications may be changed by written notice given by the addressee to each party hereto, and the addressee's address shall be deemed changed for all purposes from and after the giving of such notice.
If the Fiscal Agent shall receive any notice or demand addressed to the Issuer or the Guarantor by the holder of a Security, the Fiscal Agent shall promptly forward such notice or demand to the Issuer and the Guarantor.
15. Defeasance (Legal and Covenant).
(a) Issuer's and Guarantor's Option to Effect Defeasance or
Covenant Defeasance. The Issuer and the Guarantor may at their option, by Order
of the Issuer and the Guarantor delivered to the Fiscal Agent, elect to have
either Section 15(b) or Section 15(c) applied to the Outstanding Securities and
related Guarantees upon compliance with the conditions set forth below in this
Section 15.
(b) Defeasance and Discharge. Upon exercise by the Issuer and
the Guarantor of the option provided in Section 15(a) applicable to this Section
15(b), the Issuer and the Guarantor shall be deemed to have been discharged from
their respective obligations with respect to the outstanding Securities and
related Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "Defeasance"). For this purpose, such Defeasance means that the
Issuer or the Guarantor shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities and to have satisfied all
their respective other obligations under such Securities, the related Guarantees
and this Agreement insofar as the Securities and Guarantees are concerned (and
the Issuer or the Guarantor, as the case may be, and the Fiscal Agent shall
execute proper instruments acknowledging the same), except for the following,
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of holders of the Securities to receive, solely from the trust fund
described in Section 15(d) and as more fully set forth in such Section, payments
in respect of the principal of and any interest on the Securities when such
payments are due, (ii) the Issuer's and Guarantor's respective obligations with
respect to the Securities under Sections 1(d), 2, 4(a), 5, 6, 7(a), 7(b), 9 and
10 of this Agreement and paragraphs 3, 4(a), 9 (insofar as it relates to
Sections 7(a) and 7(b) of this Agreement), 10 and 11 of the Securities and (iii)
this Section 15. Subject to compliance with this Section 15, the Issuer and
Guarantor may exercise their option under this Section 15(b) notwithstanding the
prior exercise of their option under Section 15(c).
(c) Covenant Defeasance. Upon the Issuer's or Guarantor's
exercise of the option provided in Section 15(a) applicable to this Section
15(c), the Issuer and Guarantor shall be released from their obligations under
paragraphs 6(c), 7, and 8(a)(iii) of the Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that the Issuer and Guarantor
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of the Issuer's and Guarantor's
obligations shall be unaffected thereby.
(d) Conditions to Defeasance and Covenant Defeasance. The
following shall be the conditions to application of either Section 15(b) or
Section 15(c) to the then Outstanding Securities:
(i) The Issuer or Guarantor shall irrevocably have
deposited or caused to be deposited with a trustee, who may be the
Fiscal Agent and who shall agree to comply with the provisions of this
Section 15 applicable to it (the "Defeasance Trustee"), as trust funds
in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
holders of the Securities, (A) money in an amount, or (B) U.S.
Government Obligations and/or Eligible Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Defeasance Trustee, to pay and discharge, and
which shall be applied by the Defeasance Trustee to pay and discharge,
the principal of and each installment of interest on the Securities not
later than one day before the stated maturity of such principal or
installment of interest in accordance with the terms of this Agreement
and of the Securities. For this purpose: "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States
of America for the payment of which its full faith and credit are
pledged or (y) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Act) as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depository receipt; and "Eligible Obligations" means interest
bearing obligations as a result of the deposit of which the Securities
are rated in the highest generic long-term debt rating category
assigned to legally defeased debt by one or more nationally recognized
rating agencies.
(ii) In the case of an election under Section 15(b), the Issuer and the Guarantor shall have delivered to the Defeasance Trustee an opinion of counsel stating that (x) the Issuer and the Guarantor have received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (y) since the date of this Agreement there has been a change in the applicable U.S. Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the Outstanding Securities and related Guarantees will not recognize gain or loss for U.S. Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred.
(iii) In the case of an election under Section 15(c), the Issuer and the Guarantor shall have delivered to the Defeasance Trustee an opinion of counsel to the effect that the holders of the Outstanding Securities and related Guarantees will not recognize gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred.
(iv) No event of default under paragraph 6 of the Securities or event which with notice or lapse of time or both would become such an event of default shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs 6(d) and (e) of the Securities are concerned, at any time during the period ending on the 121st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(v) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Issuer or the Guarantor is a party or by which it is bound.
(vi) The Issuer and the Guarantor shall each have delivered to the Fiscal Agent and the Defeasance Trustee an Officers' Certificate and an opinion of counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 15(b) or the covenant defeasance under Section 15(c) (as the case may be) have been complied with.
(vii) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the Investment Company Act of 1940, as amended, or such trust shall be qualified under such act or exempt from regulation thereunder.
(e) Deposit in Trust; Miscellaneous. All money, U.S. Government Obligations and Eligible Obligations (including the proceeds thereof) deposited with the Defeasance Trustee pursuant to Section 15(d) in respect of the Securities shall be held in trust and applied by the Defeasance Trustee, in accordance with the provisions of the Securities and this Agreement, to the payment, either directly or through any Paying Agent as the Defeasance Trustee may determine, to the holders of the Securities, of all sums due and to become due thereon in respect of principal and any interest, but such money need not be segregated from other funds except to the extent required by law. Any money deposited with the Defeasance Trustee for the payment of the principal of or any interest on any Security and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Issuer or Guarantor, as the case may be, upon Order; and the holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer or Guarantor, as the case may be, for payment thereof, and all liability of the Defeasance Trustee with respect to such trust money shall thereupon cease.
The Issuer and the Guarantor shall pay and indemnify the Defeasance
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations or Eligible Obligations deposited pursuant to
Section 15(d) or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
holders of the Outstanding Securities.
Anything in this Section 15 to the contrary notwithstanding, the
Defeasance Trustee shall deliver or pay to the Issuer or Guarantor, as the case
may be, from time to time upon the request of the Issuer or Guarantor any money,
U.S. Government Obligations or Eligible Obligations held by it as provided in
Section 15(d) which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Defeasance Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
(f) Reinstatement. If the Defeasance Trustee is unable to apply any money in accordance with Section 15(b) or 15(c) by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer's and Guarantor's obligations under this Agreement and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Section 15 until such time as the Defeasance Trustee is permitted to apply all such money in accordance with Section 15(b) or 15(c); provided, however, that if the Issuer and Guarantor make any payment of principal of or interest on any Security following the reinstatement of their obligations, the Issuer and Guarantor shall be subrogated to the rights of the holders of such Securities to receive such payment from the money held by the Defeasance Trustee.
16. Headings.
The section headings herein are for convenience only and shall not affect the construction hereof.
17. Counterparts.
This Agreement may be executed in one or more counterparts, and by each party separately on a separate counterpart, and each such counterpart when executed and delivered shall be deemed to be an original. Such counterparts shall together constitute one and the same instrument.
18. Successors and Assigns.
All covenants and agreements in this Agreement by the Company and the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
19. Separability Clause.
In case any provision in this Agreement or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and. enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal Agency Agreement and affixed their respective corporate seals as of the date first above written.
NORTHERN NATURAL GAS COMPANY
[Corporate Seal]
By: /s/ Rodney L. Gray
Name: Rodney L. Gray
Title: Senior Vice President
and Treasurer
Attest:
By: /s/ Elaine V. Overturf
Name: Elaine V. Overturf
Title: Deputy Corporate Secretary
|
ENRON CORP.
[Corporate Seal]
By: /s/ Rodney L. Gray
Name: Rodney L. Gray
Title: Senior Vice President,
Finance and Treasurer
Attest:
By: /s/ Elaine V. Overturf
Name: Elaine V. Overturf
Title: Deputy Corporate Secretary
|
Continental Bank, National
Association
[Corporate Seal]
By: /s/ Greg Jordan
Vice President
Attest:
By: /s/ T. H. Linters
Vice President
|
EXHIBIT A
FORM OF SECURITY
[Form of Face
of Security]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE `ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE FISCAL AGENT. THE EXEMPTION PROVIDED BY RULE 144A UNDER THE ACT MAY BE AVAILABLE TO PERMIT SALE OR TRANSFER OF THIS SECURITY TO QUALIFIED INSTITUTIONAL BUYERS (WITHIN THE MEANING OF RULE 144A) WITHOUT REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT (A) SUCH HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY (WITHOUT CONSENT OF THE ISSUER) PRIOR TO THREE YEARS FROM THE LATER OF May 11, 1993 OR THE DATE ON WHICH THIS SECURITY WAS LAST HELD BY AN AFFILIATE OF THE ISSUER OR THE GUARANTOR OTHER THAN (I) TO A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (II) TO A NON-U.S. PERSON IN A TRANSACTION COMPLYING WITH REGULATION S UNDER THE ACT, (III) FOLLOWING TWO YEARS FROM SUCH TIME, IN A TRANSACTION COMPLYING WITH RULE 144 UNDER THE ACT, OR (IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT (IT BEING UNDERSTOOD THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER OF THIS SECURITY, THE ISSUER, THE GUARANTOR OR THE FISCAL AGENT MAY, IN CIRCUMSTANCES THEY BELIEVE APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION) AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE FOREGOING LEGENDS MAY BE REMOVED FROM THE SECURITIES ON THE
CONDITIONS SPECIFIED IN THE FISCAL AGENCY AGREEMENT.
No. R- ......... [Denomination]
NORTHERN NATURAL GAS COMPANY
6 7/8% Senior Notes due May 1, 2005
NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the laws of the State of Delaware (herein called the "Issuer"), for value received, hereby promises to pay to __________________ or registered assigns, the principal sum of __________________ on May 1, 2005 and to pay interest thereon from May 11, 1993 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on May 1 and November 1 in each year, commencing November 1, 1993 (each an "Interest Payment Date"), at the rate of 6 7/8% per annum, until the principal hereof is paid or made available for payment and (to the extent that the payment of such interest shall be legally enforceable) at the rate per annum equal to the above rate plus 1% per annum on any overdue principal and on any overdue installment of interest. Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Fiscal Agency Agreement hereinafter referred to, be paid to the person (the "registered holder") in whose name this Security (or one or more predecessor Securities) is registered at the close of business on the April 15 or October 15 (whether or not a business day), as the case may be (each a "Regular Record Date"), next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of Securities not less than 10 days prior to such special record date.
Principal of this Security shall be payable against surrender hereof at the corporate trust office or office of an agent of the Fiscal Agent hereinafter referred to or at such other offices or agencies as the Issuer and Enron Corp., a Delaware corporation (the "Guarantor"), may designate and at the offices of such other Paying Agents as the Issuer and Guarantor shall have appointed pursuant to the Fiscal Agency Agreement. Payments of principal shall be made against surrender of this Security, and payments of interest on this Security shall be made, in accordance with the foregoing and subject to applicable laws and regulations, by check mailed on or before the due date for such payment to the person entitled thereto at such person's address appearing on the aforementioned register or, in the case of payments of principal to such other address as the registered holder may specify upon such surrender; provided, however, that any payments shall be made, in the case of a registered holder of at least $1,000,000 aggregate principal amount of Securities, by transfer to an account maintained by the payee with a bank if such registered holder so elects by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date of the payments to be obtained, of such election and of the account to which payments are to be made. The Issuer covenants that until this Security has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the principal of and interest on this Security have been made available for payment and either paid or returned to the Issuer or Guarantor, as the case may be, as provided herein, it will at all times maintain an established place of business or agency in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Securities as herein provided.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, neither this Security nor the Guarantee endorsed hereon shall be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed in facsimile and its corporate seal to be affixed hereto.
Date: NORTHERN NATURAL GAS COMPANY
By: ____________________________
President and Chief
Executive Officer
[Corporate Seal]
Attest:
____________________________
Vice President and Secretary
|
This is one of the Securities referred to in the within-mentioned Fiscal Agency Agreement.
Continental Bank, National, Association, as Fiscal Agent
[Form of reverse of Security]
1. This Security is one of a duly authorized issue of securities of the Issuer designated as its 6 7/8% Senior Notes due May 1, 2005 (herein called the "Securities"), unconditionally guaranteed as to payment of principal and interest (the "Guarantees") by the Guarantor, limited in aggregate principal amount to $100,000,000, issued and to be issued in accordance with a Fiscal Agency Agreement, dated as of May 4, 1993 (herein called the "Fiscal Agency Agreement"), among the Issuer, the Guarantor and Continental Bank, National Association, as Fiscal Agent (herein called the "Fiscal Agent", which term includes any successor fiscal agent under the Fiscal Agency Agreement), copies of which Fiscal Agency Agreement are on file and available for inspection at the corporate trust office of the Fiscal Agent which at the date hereof is at 231 South LaSalle Street, Chicago, Illinois.
The Securities are unsecured direct, unconditional and general obligations of the Issuer and will rank equally with all other unsecured and unsubordinated indebtedness of the Issuer.
2. The Securities are issuable only in fully registered form, without coupons, in minimum denominations of U.S. $250,000 and integral multiples of $1,000 above that amount.
3. The Issuer and the Guarantor shall maintain in the Borough of Manhattan, The City of New York, an established place of business or agency where Securities may be surrendered for registration of transfer or exchange. The Issuer and Guarantor have initially appointed the Fiscal Agent acting through its corporate trust office in Chicago, Illinois and at its agent's office in the Borough of Manhattan, The City of New York, as their agent for such purpose and the Issuer and the Guarantor have agreed to cause to be kept at such offices a register in which, subject to such reasonable regulations as it may prescribe, the Issuer will provide for the registration of Securities and of transfers of Securities. The Issuer and Guarantor reserve the right to vary or terminate the appointment of the Fiscal Agent as security registrar or of any Transfer Agent or to appoint additional or other registrars or Transfer Agents or to approve any change in the office through which any security registrar or any Transfer Agent acts, provided that there will at all times be a security registrar or agent thereof in the Borough of Manhattan, The City of New York. Registered holders of the Securities will receive notice of any such change.
The transfer of a Security is registrable on the aforementioned register upon surrender of such Security at the corporate trust office of the Fiscal Agent or the office of the agent of the Fiscal Agent or any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Guarantor and the Fiscal Agent duly executed by, the registered holder thereof or his attorney duly authorized in writing. Upon such surrender of this Security for registration of transfer, the Issuer shall execute; and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities with Guarantees endorsed thereon, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.
At the option of the registered holder upon request confirmed in writing, Securities may be exchanged for Securities of any authorized denominations and of a like tenor, form and aggregate principal amount upon surrender of the Securities to be exchanged at the office of any Transfer Agent or at the corporate trust office of the Fiscal Agent or agent thereof. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Securities with Guarantees endorsed thereon which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange will be effected upon the Transfer Agent or the Fiscal Agent, as the case may be, being satisfied with the documents of title and identity of the person making the request and subject to such reasonable regulations as the Issuer and Guarantor may from time to time agree with the Transfer Agent and the Fiscal Agent.
All Securities and the Guarantees endorsed thereon issued upon any registration of transfer or exchange of Securities shall be the valid obligations, of the Issuer and the Guarantor, respectively, evidencing the same debt, and entitled to the same benefits, as the Securities and the Guarantees endorsed thereon surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer and the Guarantor may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantor, the Fiscal Agent and any agent of the Issuer, the Guarantor or the Fiscal Agent may treat the person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, the Guarantor, the Fiscal Agent nor any such agent shall be affected by notice to the contrary.
4. (a) The Issuer shall pay to the Fiscal Agent at its principal office in Chicago, Illinois on or prior to each Interest Payment Date and the maturity date of the Securities, in such amounts sufficient (with any amounts then held by the Fiscal Agent and available for the purpose) to pay the interest on and the principal of the Securities due and payable on such Interest Payment Date or maturity date, as the case may be in funds available on such date. The Fiscal Agent shall apply the amounts so paid to it to the payment of such interest and principal in accordance with the terms of the Securities. Any monies paid by the Issuer or the Guarantor, as the case may be to the Fiscal Agent for the payment of the principal of or interest on any Securities and remaining unclaimed at the end of two years after such principal or interest shall have become due and payable (whether at maturity or otherwise) shall then be repaid to the Issuer or the Guarantor, as the case may be, upon its written request, and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer or the Guarantor may have to pay the principal of and interest on this Security as the same shall become due.
(b) In any case where the due date for the payment of the principal of or interest on any Security shall be at any place of payment a day on which banking institutions are authorized or obligated by law to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions are authorized or obligated by law to close, with the same force and effect as if made on the date for such payment, and no interest shall accrue for the period after such date.
5. The Issuer or the Guarantor, as the case may be, shall pay all stamp and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Fiscal Agency Agreement or the issuance of this Security. Except as otherwise provided in this Security, neither the Issuer nor the Guarantor shall be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.
6. In the event of:
(a) default in the payment of any interest on any Security for a period of 30 days after the date when due; or
(b) default in the payment of the principal of any Security when due (whether at maturity or otherwise); or
(c) default in the performance or breach of any other covenant or agreement of the Issuer or the Guarantor contained in the Securities or the Guarantees or in the Fiscal Agency Agreement for a period of 60 days after the date on which written notice of such default requiring the Issuer or the Guarantor to remedy the same and stating that such notice is a "Notice of Default" shall first have been given to the Issuer and the Fiscal Agent by the holders of at least 25% in principal amount of the Securities at the time Outstanding (as defined in the Fiscal Agency Agreement); or
(d) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Issuer or the Guarantor bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or the Guarantor Under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial part of the property of the Issuer or the Guarantor, or ordering the winding up or liquidation of the affairs of the Issuer or the Guarantor, and any such decree or order for relief or any such other decree or order shall continue unstayed and in effect for a period of 60 consecutive days; or
(e) commencement by the Issuer or the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Issuer or the Guarantor to the entry of a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer or the Guarantor, or the filing by the Issuer or the Guarantor of a petition or answer or consent seeking reorganization or relief under any such applicable Federal or State law, or the consent by the Issuer or the Guarantor to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial part of its property, or the making by the Issuer or the Guarantor of an assignment for the benefit of creditors, or the taking of action by the Issuer or the Guarantor in furtherance of any such action;
the registered holder of this Security may, at such holder's option, declare the principal of this Security and the interest accrued hereon to be due and payable immediately by written notice to the Issuer and the Fiscal Agent at its corporate trust office, and unless all such defaults shall have been cured by the Issuer or the Guarantor prior to receipt of such written notice, the principal of the Security and the interest accrued thereon shall become and be immediately due and payable. For purposes of the Securities, "Subsidiary" of the Issuer or the Guarantor means a corporation all of the outstanding voting stock of which is owned, directly or indirectly, by the Issuer or the Guarantor, as the case may be, or by one or more other Subsidiaries, or by the Issuer or the Guarantor, as the case may be, and/or one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
7. So long as any of the Securities are Outstanding, neither the Issuer nor the Guarantor will pledge, mortgage or hypothecate, or permit to exist, and will not cause, suffer or permit any Subsidiary of it to pledge, mortgage or hypothecate, or permit to exist, except in favor of the Issuer or the Guarantor, as the case may be, or any Subsidiary of it, any mortgage, pledge or other lien upon, any Principal Property (as hereinafter defined) at any time owned by it, to secure any Indebtedness (as hereinafter defined) of it, without making effective provision whereby the Outstanding Securities shall be equally and ratably secured with any and all such Indebtedness of the Company and whereby the Guarantees of Outstanding Securities will be equally and ratably secured with any and all such Indebtedness of the Guarantor, as the case may be, and with any other Indebtedness of it similarly entitled to be equally and ratably secured; provided, however, that this restriction shall not apply to or prevent the creation or existence of:
(i) undetermined or inchoate liens and charges incidental to construction, maintenance, development or operation;
(ii) any liens of taxes and assessments for the then current year;
(iii) any liens of taxes and assessments not at the time delinquent;
(iv) any liens of specified taxes and assessments which are delinquent but the validity of which is being contested in good faith at the time by the Issuer or the Guarantor, as the case may be, or any Subsidiary of it;
(v) any liens reserved in leases for rent and for compliance with the terms of the lease in the case of leasehold estates;
(vi) any obligations or duties, affecting the property of the Issuer or the Guarantor, as the case may be, or any Subsidiary of it, to any municipality or public authority with respect to any franchise, grant, license, permit or similar arrangement;
(vii) the liens of any judgments or attachments in an aggregate amount not in excess of $10,000,000, or the lien of any judgment or attachment the execution or enforcement of which has been stayed or which has been appealed and secured, if necessary, by the filing of an appeal bond;
(viii) any mortgage, pledge, lien or encumbrance on any property held or used by the Issuer or the Guarantor, as the case may be, or any Subsidiary of it in connection with the exploration for, development of or production of oil, gas, natural gas (including liquified gas and storage gas), other hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or other natural resources or synthetic fuels, such properties to include, but not be limited to, the interest of the Issuer or the Guarantor, as the case may be, or such Subsidiary in any mineral fee interests, oil, gas or other mineral leases, royalty, overriding royalty or net profits interests, production payments and other similar interests, wellhead production equipment, tanks, field gathering lines, leasehold or field separation and processing facilities, compression facilities and other similar personal property and fixtures;
(ix) any mortgage, pledge, lien or encumbrance on oil, gas, natural gas (including liquified gas and storage gas), and other hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or other natural resources or synthetic fuels produced or recovered from any property, an interest in which is owned or lease by the Issuer or the Guarantor, as the case may be, or any Subsidiary of it;
(x) mortgages, pledges, liens or encumbrances upon any property heretofore or hereafter acquired, created at the time of acquisition or within 365 days thereafter to secure all or a portion of the purchase price thereof, or existing thereon at the date of acquisition, whether or not assumed by the Issuer or the Guarantor, as the case may be, or any Subsidiary of it, provided that every such mortgage, pledge, lien or encumbrance shall apply only to the property so acquired and fixed improvements thereon;
(xi) any extension, renewal or refunding, in whole or in part, of any mortgage, pledge, lien or encumbrance permitted by Section (x) above, if limited to the same property or any portion thereof subject to, and securing not more than the amount secured by, the mortgage, pledge, lien or encumbrance extended, renewed or refunded;
(xii) mortgages, pledges, liens or encumbrances upon any property heretofore or hereafter acquired by any corporation that is or becomes such a Subsidiary of the Issuer or the Guarantor, as the case may be, after the date of the Fiscal Agency Agreement ("Acquired Entity"), provided that every such mortgage, pledge, lien or encumbrance (1) shall either (a) exist prior to the time the Acquired Entity becomes such a Subsidiary or (b) be created at the time the Acquired Entity becomes such a Subsidiary or within 365 days thereafter to secure all or a portion of the acquisition price thereof and (2) shall only apply to those properties owned by the Acquired Entity at the time it becomes such a Subsidiary or thereafter acquired by it from sources other than the Issuer or the Guarantor, as the case may be, or any other Subsidiary of it;
(xiii) the pledge of current assets, in the ordinary course of business, to secure current liabilities;
(xiv) mechanics' or materialmen's liens, any liens or charges arising by reason of pledges or deposits to secure payment of workmen's compensation or other insurance, good faith deposits in connection with tenders, leases of real estate, bids or contracts (other than contracts for the payment of money), deposits to secure duties or public or statutory obligations, deposits to secure, or in lieu of, surety, stay or appeal bonds, and deposits as security for the payment of taxes or assessments or similar charges;
(xv) any lien arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulation for any purpose at any time in connection with the financing of the acquisition or construction of property to be used in the business of the Issuer or the Guarantor, as the case may be, or any Subsidiary of it or as required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege or license, or to enable the Issuer or the Guarantor, as the case may be, or any such Subsidiary to maintain self-insurance or to participate in any funds established to cover any insurance risks or in connection with workmen's compensation, unemployment insurance, old age pensions or other social security, or to share in the privileges or benefits required for companies participating in such arrangements;
(xvi) any lien to secure Indebtedness of the Issuer or the Guarantor, as the case may be, other than Funded Dent (as hereinafter defined);
(xvii) any mortgage, pledge, lien or encumbrance of or upon any office equipment, data processing equipment (including, without limitation, computer and computer peripheral equipment), or transportation equipment (including without limitation, motor vehicles, tractors, trailers, marine vessels, barges, towboats, rolling stock and aircraft);
(xviii) any mortgage, pledge, lien or encumbrance created or assumed by the Issuer or the Guarantor, as the case may be, or any Subsidiary of it in connection with the issuance of debt securities the interest on which is excludable from gross income of the holder of such security pursuant to the Internal Revenue Code of 1986, as amended, for the purpose of financing, in whole or in part, the acquisition or construction of property to be used by the Issuer or the Guarantor, as the case may be, or any such Subsidiary; or
(xix) the pledge or assignment of accounts receivable, or the pledge or assignment of conditional sales contracts or chattel mortgages and evidences of indebtedness secured thereby, received in connection with the sale by the Issuer or the Guarantor, as the case may be, or any Subsidiary of it of goods or merchandise to customers of the Issuer, the Guarantor or any Subsidiary.
In case the Issuer or the Guarantor, as the case may be, or any Subsidiary of it shall propose to pledge, mortgage or hypothecate any Principal Property at any time owned by it to secure any of its Indebtedness, other than as permitted by subdivisions (i) to (xix), inclusive, of this Paragraph 7, the Issuer or the Guarantor, as the case may be, will prior thereto give written notice thereof to the Fiscal Agent, and the Issuer will, or will cause such Subsidiary to, prior to or simultaneously with such pledge, mortgage or hypothecation, effectively secure all the Securities equally and ratably with such Indebtedness or the Guarantor will, or will cause such Subsidiary to, prior to or simultaneously with such pledge, mortgage or hypothecation, effectively secure all the Guarantees equally and ratably with such Indebtedness.
Notwithstanding the foregoing provisions of this Paragraph 7,
the Issuer or the Guarantor, as the case may be, or any Subsidiary of it may
issue, assume or guarantee Indebtedness secured by a mortgage which would
otherwise be subject to the foregoing restrictions in an aggregate amount which,
together with all other Indebtedness of the Issuer or the Guarantor, as the case
may be, or a Subsidiary of it secured by a mortgage which (if originally issued,
assumed or guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including Indebtedness permitted to be secured under clauses
(i) through (xix) above), does not at the time exceed 10% of the Consolidated
Net Tangible Assets of the Issuer or the Guarantor, as the case may be, as shown
on its audited consolidated financial statements as of the end of the fiscal
year preceding the date of determination.
For purposes of the Securities,
"Consolidated Net Tangible Assets" of any corporation means total assets less (a) total current liabilities (excluding indebtedness due within 365 days) and (b) goodwill, patents and trademarks, all as reflected in such corporation's audited consolidated balance sheet preceding the date of a determination under the immediately preceding paragraph of this Paragraph 7.
"Funded Debt" as applied to any corporation means all Indebtedness incurred, created, assumed or guaranteed by such corporation, or upon which it customarily pays interest charges, which matures, or is renewable by such corporation to a date, more than one year after the date as of which Funded Debt is being determined; provided, however, that the term "Funded Debt" shall not include (i) Indebtedness incurred in the ordinary course of business representing borrowings, regardless of when payable, of such Corporation from time to time against, but not in excess of the face amount of, its installment accounts receivable for the sale of appliances and equipment sold in the regular course of business or (ii) advances for construction and security deposits received by such corporation in the ordinary course of business.
"Indebtedness" as applied to any corporation, shall mean bonds, debentures, notes and other instruments representing obligations created or assumed by any such corporation for the repayment of money borrowed (other than unamortized debt discount or premium). All Indebtedness secured by a lien upon property owned by any corporation and upon which Indebtedness any such corporation customarily pays interest, although any such corporation has not assumed or become liable for the payment of such Indebtedness, shall for all purposes of the Securities and Guarantees be deemed to be Indebtedness of any such corporation. All Indebtedness for money borrowed incurred by other persons which is directly guaranteed as to payment of principal by any corporation shall for all purposes of the Securities and Guarantees be deemed to be Indebtedness of such corporation, but no other contingent obligation of such corporation in respect of Indebtedness incurred by other persons shall for any purpose be deemed Indebtedness of such corporation. Indebtedness of any corporation shall not include: (i) amounts which are payable only out of all or a portion of the oil, gas, natural gas, helium, coal, metals, minerals, steam, timber, hydrocarbons, or geothermal or other natural resources produced, derived, or extracted from properties owned or developed by such corporation; (ii) any amount representing capitalized lease obligations; (iii) any indebtedness incurred to finance oil, gas, natural gas, helium, coal, metal, mineral, steam, timber, hydrocarbons, or geothermal or other natural resources or synthetic fuel exploration or development, payable with respect to principal and interest, solely out of the proceeds of oil, gas, natural gas, helium, coal, metals, minerals, steam, timber, hydrocarbons, or geothermal or other natural resources or synthetic fuel to be produced, sold, and/or delivered by any such corporation; (iv) indirect guarantees or other contingent obligations in connection with the Indebtedness of others, including agreements, contingent or otherwise, with such other persons or with third persons with respect to, or to permit or ensure the payment of, obligations of such other persons, including, without limitation, agreements to purchase or repurchase obligations of such other persons, agreements to advance or supply funds to or to invest in such other persons, or agreements to pay for property, products, or services of such other persons (whether or not conferred, delivered or rendered), and any demand charge, throughput, take-or-pay, keep-well, make-whole, cash deficiency, maintenance of working capital or earnings or similar agreements; and (v) any guarantees with respect to lease or other similar periodic payments to be made by other persons.
"Principal Property" of the Issuer or the Guarantor, as the case may be, means any oil or gas pipeline, gas processing plant or chemical plant located in the United States, except any such pipeline, facility, station or plant that in the opinion of the Board of Directors of the Issuer or the Guarantor, as the case may be, is not of material importance to the total business conducted by the Issuer or the Guarantor, as the case may be, or its Subsidiaries. "Principal Property" shall not include any oil or gas property, the production or any proceeds of production from an oil or gas producing property or the production or any proceeds of production of gas processing plants or oil or gas or petroleum products in any pipeline. With respect to the Issuer only, "Principal Property" shall also include any gas storage facility or gas compressor station located in the United States, except any such facility or station that in the opinion of the Board of Directors of the Issuer is not of material importance to the total business conducted by the Issuer or its Subsidiaries, and "Principal Property" shall not include any liquified natural gas plants and related storage facilities or any natural gas liquids processing plants.
8. (a) Neither the Issuer nor the Guarantor shall consolidate with or merge into any other person or convey, transfer or lease its properties and assets substantially as an entirety to any person, and neither the Issuer nor the Guarantor shall permit any person to consolidate with or merge into the Issuer or the Guarantor, respectively, or convey, transfer or lease its properties and assets substantially as an entirety to the Issuer or Guarantor, respectively, unless:
(i) in case the Issuer or the Guarantor shall consolidate with or merge into another person or convey, transfer or lease its properties and assets substantially as an entirety to any person, the person formed by such consolidation or into which the Issuer or the Guarantor, respectively, is merged or the person which acquires by conveyance or transfer, or which leases, the properties and assets of the Issuer or the Guarantor, respectively, substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia (the "Successor Person") and shall expressly assume, by amendment to the Fiscal Agency Agreement signed by the Issuer, the Guarantor and such Successor Person and delivered to the Fiscal Agent, (x) in the case of the Issuer, the due and punctual payment of the principal of and interest on all the Securities and the performance or observance of every covenant hereof and of the Fiscal Agency Agreement on the part of the Issuer to be performed or observed or, (y) in the case of the Guarantor, the Guarantees endorsed on all the Securities and the performance or observance of every covenant thereof and of the Fiscal Agency Agreement on the part of the Guarantor to be performed or observed;
(ii) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or the Guarantor, respectively, or any Subsidiary of it as a result of such transaction as having been incurred by the Issuer or the Guarantor, respectively, or any such Subsidiary at the time of such transaction, no event of default (as set forth in Paragraph 6), and no event which, with notice or lapse of time or both, would become such an event of default, shall have happened and be continuing;
(iii) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Guarantor, respectively, or any Subsidiary of it would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by Paragraph 7 hereof, the Issuer or the Guarantor, respectively, or the Successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities or the Guarantees endorsed thereon, respectively, equally and ratably with (or prior to) all Indebtedness secured by such mortgage, pledge, lien, security interest or other encumbrance; and
(iv) the Issuer or the Guarantor, respectively, has delivered to the Fiscal Agent an Officers' Certificate and a written opinion or opinions of counsel satisfactory to the Fiscal Agent (who may be counsel to the Issuer or the Guarantor), stating that such consolidation, merger, conveyance, transfer or lease and such amendment to the Fiscal Agency Agreement comply with this Paragraph 8 and that all conditions precedent herein provided for relating to such transaction have been complied with.
(b) Upon any such consolidation or merger, or any conveyance, transfer or lease of the properties and assets of the Issuer or the Guarantor, respectively, substantially as an entirety in accordance with paragraph 8(a), the Successor Person shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Guarantor, respectively, under the Fiscal Agency Agreement and the Securities or the Guarantees endorsed thereon, respectively, with the same effect as if the Successor Person had been named as the Issuer or the Guarantor, respectively, in the Fiscal Agency Agreement and the Securities or Guarantees endorsed thereon, respectively, and thereafter the Issuer or the Guarantor, respectively, except in the case of a lease of its properties and assets, shall be released from its liability as obligor on any of the Securities or the Guarantees endorsed thereon, respectively, and under the Fiscal Agency Agreement.
9. Section 7 of the Fiscal Agency Agreement, which requires the Issuer and the Guarantor to provide registered holders of Securities or, in the case of clauses (a) and (b) thereof, designated prospective purchasers of Securities with certain information and an Officers' Certificate, is hereby incorporated mutatis mutandis by reference herein.
10. Until the date that is three years from the date of original issuance of the Securities, the Issuer and the Guarantor will not, and will not permit any of their "affiliates" (as defined under Rule 144 under the Act or any successor provision thereto) to, resell any Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
11. If any mutilated Security is surrendered to the Fiscal Agent, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver in exchange therefor, a new Security with a Guarantee endorsed thereon of like tenor and principal amount, bearing a number not contemporaneously outstanding.
If there be delivered to the Issuer, the Guarantor and the Fiscal Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or related Guarantee and (ii) such security or indemnity as may be
required by them to save each of them and any agent of each of them harmless,
then, in the absence of notice to the Issuer, the Guarantor or the Fiscal Agent
that such Security has been acquired by a bona fide purchaser, the Issuer shall
execute, and upon its request the Fiscal Agent shall authenticate and deliver in
lieu of any such destroyed, lost or stolen Security a new Security with a
Guarantee endorsed thereon of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
Upon the issuance of any new Security with a Guarantee endorsed thereon under this Paragraph, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and the expenses of the Fiscal Agent) connected therewith.
Every new Security issued pursuant to this Paragraph in lieu of any destroyed, lost or stolen Security, shall constitute an original additional contractual obligation of the Issuer guaranteed by the Guarantor, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone.
Any new Security delivered pursuant to this Paragraph shall be so dated that neither gain nor loss in interest shall result from such exchange.
The provisions of this Paragraph 11 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and related Guarantees.
12. Section 11 of the Fiscal Agency Agreement, which subject to certain conditions permits the Guarantor at its election to assume, in whole but not in part, the obligations of the Issuer under the Securities and the Fiscal Agency Agreement, at any time on or after November 12, 1993, and provides that upon such assumption the Issuer shall be released from such obligations, is hereby incorporated mutatis mutandis by reference herein.
13. Section 12 of the Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and by written consent of a majority in the principal amount of all Outstanding Securities, the Issuer, the Guarantor and the Fiscal Agent may modify, amend or supplement the Fiscal Agency Agreement or the terms of the Securities or Guarantee or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver or other action shall be conclusive and binding on the holder of this Security and on all future holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Security. The Fiscal Agency Agreement and the terms of the Securities and Guarantees may be modified or amended by the Issuer, the Guarantor and the Fiscal Agent, without the consent of any holders of Securities, for the purpose of (i) adding to the covenants of the Issuer or the Guarantor for the benefit of the holders of Securities; or (ii) surrendering any right or power conferred upon the Issuer or the Guarantor, or (iii) securing the Securities or the Guarantees pursuant to the requirements of the Securities or the Guarantees or otherwise, or (iv) evidencing the succession of another corporation to the Issuer or the Guarantor and the assumption by any such successor of the covenants and obligations of the Issuer or the Guarantor in the Securities or the Guarantees, respectively, or in the Fiscal Agency Agreement pursuant to Paragraph 8 hereof, or (v) evidencing the assumption by the Guarantor of the covenants and obligations of the Issuer in the Securities and the Fiscal Agency Agreement pursuant to Paragraph 12 hereof, or (vi) correcting or supplementing any defective provision contained in the Securities, the Guarantees or in the Fiscal Agency Agreement, to all of which each holder of any Security, by acceptance thereof, consents.
14. No reference herein to the Fiscal Agency Agreement and no provision of this Security or of the Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
15. This Security is subject to the provisions of Section 15 of the Fiscal Agency Agreement (which are incorporated mutatis mutandis by reference herein) which provide for the defeasance at any time of (i) the entire indebted- ness of this Security or (ii) certain covenants and events of default, in each case upon compliance with certain conditions set forth therein.
16. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT B
FORM OF GUARANTEE
FOR VALUE RECEIVED, Enron Corp., a corporation duly organized under the laws of the State of Delaware (the "Guarantor"), hereby unconditionally guarantees to the holder of the Security upon which this Guarantee is endorsed the due and punctual payment of the principal or and interest on such Security, when and as the same shall become due and payable, whether at maturity, upon acceleration, or otherwise, according to the terms thereof and of the Fiscal Agency Agreement referred to therein. In case of the failure of Northern Natural Gas Company or any successor thereto (the "Issuer") punctually to pay any such principal or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at maturity, upon acceleration or otherwise, and as if such payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be as if it were as principal and not merely as surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of said Security or said Fiscal Agency Agreement, any failure to enforce the provisions of said Security or said Fiscal Agency Agreement, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the holder of said Security or the Fiscal Agent under said Fiscal Agency Agreement, the recovery of any judgment against the Issuer or any action to enforce the same or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency, or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to said Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal and interest in respect of said Security and the complete performance of all other obligations contained in said Security.
The Guarantor shall be subrogated to all rights of the holder of said Security against the Issuer in respect of any amounts paid to such holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payment arising out of or based upon, such right of subrogation until the principal of and interest on all the Securities (as defined in said Security) shall have been paid in full.
No reference herein to said Fiscal Agency Agreement and no provision of this Guarantee or of said Fiscal Agency Agreement shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal of and interest on the Security upon which this Guarantee is endorsed.
The Guarantor hereby agrees to observe the provisions of said Security
that by their terms are applicable to it, including without limitation those of
Paragraph 7 of said Security. This Guarantee is subject to the provisions of
Section 15 of the Fiscal Agency Agreement (which are incorporated mutatis
mutandis by reference herein) which provide for the defeasance at any time of
(i) the entire indebtedness of this Guarantee or (ii) certain covenants and
events of default, in each case upon compliance with certain conditions set
forth therein.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of said Security shall have been manually executed by or on behalf of the Fiscal Agent under said Fiscal Agency Agreement.
THIS GUARANTEE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed in facsimile and its corporate seal to be affixed hereto.
ENRON CORP.
By: _______________________________
Chairman of the Board
Dated: May 11, 1993
[Corporate Seal]
Attest:
EXHIBIT 10.69
FISCAL AGENCY AGREEMENT
Between
NORTHERN NATURAL GAS COMPANY,
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
Fiscal Agent
Dated as of September 4, 1998
6.75% Senior Notes due September 15, 2008
TABLE OF CONTENTS
Page
RECITALS OF THE ISSUER 1
1. The Securities 1
(a) General 1
(b) Form of Securities; Denominations of Securities 1
(c) Temporary Securities 1
(d) Legends 2
(e) Book-Entry Provisions 2
2. Fiscal Agent; Other Agents 2
3. Authentication 3
4. Payment and Cancellation 3
(a) Payment 4
(b) Cancellation 4
5. Exchange of Securities 4
6. Register; Record Date for Certain Actions 4
7. Delivery of Certain Information 5
(a) Non-Reporting Issuer 6
(b) Information After Three Years 6
(c) Periodic Reports 6
8. Conditions of Fiscal Agent's Obligations 7
(a) Compensation and Indemnity 7
(b) Agency 7
(c) Advice of Counsel 7
(d) Reliance 7
(e) Interest in Securities, etc. 7
(f) Certifications 7
(g) No Implied Obligations 8
(h) No Liability 8
(i) No Inquiry 8
(j) Agents 8
9. Resignation and Appointment of Successor 8
(a) Fiscal Agent and Paying Agent 8
(b) Resignation 8
(c) Successors 9
(d) Acknowledgment 9
(e) Merger, Consolidation, etc. 9
10. Payment of Taxes 9
11. Amendments 9
(a) Approval 10
(b) Binding Nature of Amendments, Notice, Notations, etc. 10
(c) "Outstanding" Defined 10
12. GOVERNING LAW 11
13. Notices 11
14. Defeasance (Legal and Covenant) 11
(a) Issuer's Option to Effect Defeasance or Covenant Defeasance 11
(b) Defeasance and Discharge 11
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(c) Covenant Defeasance 12
(d) Conditions to Defeasance and Covenant Defeasance 12
(e) Deposit in Trust; Miscellaneous 13
(f) Reinstatement 14
15. Headings 14
16. Counterparts 14
17. Successors and Assigns 14
18. Separability Clause 14
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EXHIBIT A - FORM OF SECURITY
FISCAL AGENCY AGREEMENT ("Agreement"), dated as of September 4, 1998, between NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the laws of the State of Delaware (the "Issuer"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States of America, as Fiscal Agent.
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of an issue of its 6.75% Senior Notes due September 15, 2008 (herein called the "Securities") of substantially the tenor and amount hereinafter set forth, and to provide therefor the Issuer has duly authorized the execution and delivery of this Agreement.
All things necessary to make the Securities, when executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid obligations of the Issuer, and to make this Agreement a valid agreement of the Issuer, in accordance with their and its terms, have been done.
1. The Securities.
(a) General. The aggregate principal amount of Securities which may be authenticated and delivered under this Agreement is limited to $150,000,000 except for Securities authenticated and delivered upon registration of transfer, or in exchange for, or in lieu of other Securities pursuant to the provisions of this Agreement or the Securities.
The Securities shall be known and designated as the 6.75% Senior Notes due September 15, 2008 of the Issuer. The Securities will be unsecured, direct, unconditional and general obligations of the Issuer and will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
(b) Form of Securities: Denominations of Securities. The Securities will be issued in registered form without coupons in substantially the form of Exhibit A hereto and in minimum denominations of $100,000 and in integral multiples of $1,000 in excess of $100,000. The Securities shall be executed manually or in facsimile on behalf of the Issuer by its Chairman of the Board, President or a Vice President and by its Secretary or an Assistant Secretary (the "Authorized Officers"), notwithstanding that such officers, or any of them, shall have ceased, for any reason, to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. The Securities may also have such additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with the rules of any securities exchange or governmental agency or as may, consistently herewith, be determined by the Authorized Officers of the Issuer executing such Securities, as conclusively evidenced by their execution of such Securities. All of the Securities shall be otherwise substantially identical except as to denominations of Securities and as provided herein.
(c) Temporary Securities. Until definitive Securities are prepared, the Issuer may execute, and there shall be authenticated and delivered in accordance with the provisions of Section 3 hereof (in lieu of definitive printed Securities), temporary Securities. Such temporary Securities may be in registered global form. Such temporary Securities shall be subject to the same limitations and conditions and entitled to the same rights and benefits as definitive Securities, except as provided herein or therein. Temporary Securities shall be exchangeable for definitive Securities, when such definitive Securities are available for delivery; and upon the surrender for exchange of such temporary Securities, the Issuer shall execute and there shall be authenticated and delivered, in accordance with the provisions of Sections 5 and 6 hereof, in exchange for such temporary Securities, a like aggregate principal amount of definitive Securities of like tenor. The Issuer shall pay all charges, including (without limitation) stamp and other taxes and governmental charges, incident to any exchange of temporary Securities for definitive Securities. All temporary Securities shall be identified as such and shall describe the right of the holder thereof to effect an exchange for definitive Securities and the manner in which such an exchange may be effected.
(d) Legends. Securities shall be stamped or otherwise be
imprinted with the legends set forth on the face of the text of the Securities
attached as Exhibit A hereto and any legend pursuant to Section 1(d) or 1(e)
hereof. The legends so provided on the face of the text of the Securities may be
removed from any Security, upon written order signed in the name of the Issuer
by its Chairman of the Board, President or a Vice President and by its Secretary
or an Assistant Secretary and delivered to the Fiscal Agent ("Order"), (i) two
years from the later of issuance of the Security or the date such Security (or
any predecessor) was last acquired from an "affiliate" of the Issuer within the
meaning of Rule 144 under the Securities Act of 1933, as amended, (the "Act") or
(ii) in connection with a sale made pursuant to the volume (and other
restrictions) of Rule 144 under the Act following one year from such time,
provided that, if the legend is removed and the Security is subsequently held by
such an affiliate of the Issuer, the legend shall be reinstated. Any legends
provided pursuant to Sections 1(d) and (e) hereof may be removed as provided in
such Sections.
(e) Book-Entry Provisions. This Section 1(e) shall apply only to global Securities deposited with or on behalf of a depository located in the United States (a "U.S. Depository").
The Securities will be issued initially in the form of one or more registered global Securities deposited with or on behalf of a U.S. Depository, that (i) shall be registered in the name of the U.S. Depository for such global Security or Securities or the nominee of such U.S. Depository, (ii) shall be delivered by the Fiscal Agent to such U.S. Depository or pursuant to such U.S. Depository's instruction and (iii) shall bear a legend substantially to the following effect: "Unless this certificate is presented by an authorized representative of [insert name and address of Depository] to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of [insert name of nominee of Depository], or such other name as is requested by an authorized representative of [insert name of Depository], and any payment hereon is made to [insert name of nominee of Depository], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the registered owner hereof, [insert name of nominee of Depository], has an interest herein."
Members of, or participants in, a U.S. Depository ("Agent Members") shall have no rights under this Agreement with respect to any global Security held on their behalf by a U.S. Depository or under the global Security, and such U.S. Depository may be treated by the Issuer, the Fiscal Agent, and any agent of the Issuer, or the Fiscal Agent as the owner of such global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Fiscal Agent, or any agent of the Issuer, or the Fiscal Agent, from giving effect to any written certification, proxy or other authorization furnished by a U.S. Depository or impair, as between a U.S. Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any Security.
So long as the U.S. Depository is the registered owner of Securities, the U.S. Depository will for all purposes of the Securities and this Agreement be considered the sole owner or holder of such Securities. Until such time as definitive Securities may be issued, beneficial owners of Securities will not be entitled to have Securities registered in their names, will not receive or be entitled to receive physical delivery of Securities in definitive form, and will not be considered the owners or holders thereof under this Agreement for any purpose.
If (i) the Issuer notifies the Fiscal Agent in writing that the U.S. Depository is no longer willing or able to act as a depository and the Issuer is unable to locate a qualified successor within 90 days or (ii) the Issuer, at its option, notifies the Fiscal Agent in writing that it elects to cause the issuance of Securities in definitive form, then, upon surrender by the global Security holder of its global Security, Securities in such form will be issued to each person that such global Security holder and the U.S. Depository identifies as the beneficial owner of the related Securities. Upon such issuance, the Fiscal Agent shall register such Securities in the name of, and cause the same to be delivered to, such person or persons (or the nominee thereof).
2. Fiscal Agent: Other Agents.
The Issuer hereby appoints Chase Bank of Texas, National Association acting through its corporate trust office in Houston, Texas as fiscal agent of the Issuer in respect of the Securities, upon the terms and subject to the conditions herein set forth, and Chase Bank of Texas, National Association hereby accepts such appointment. Chase Bank of Texas, National Association and any successor or successors as such fiscal agent qualified and appointed in accordance with Section 9 hereof are herein called the "Fiscal Agent." The Fiscal Agent shall have the powers and authority granted to and conferred upon it in the Securities and hereby and such further powers and authority to act on behalf of the Issuer as may be mutually agreed upon by the Issuer and the Fiscal Agent. All of the terms and provisions with respect to such powers and authority contained in the Securities are subject to and governed by the terms and provisions hereof.
The Issuer may appoint one or more agents (a "Paying Agent" or "Paying Agents") for the payment (subject to applicable laws and regulations) of the principal of and interest on the Securities, and one or more agents (a "Transfer Agent" or "Transfer Agents") for the transfer and exchange of Securities, at such place or places as the Issuer may determine; provided, however, the Issuer shall at all times maintain a Paying Agent or agent thereof and Transfer Agent or agent thereof in the Borough of Manhattan, The City of New York (which Paying Agent and Transfer Agent may be the Fiscal Agent or any of its affiliates). The Issuer initially appoints the Fiscal Agent as Paying Agent and Transfer Agent. The Issuer shall promptly notify the Fiscal Agent of the name and address of each Paying Agent and Transfer Agent appointed, and will notify the Fiscal Agent of the resignation or termination of any Paying Agent or Transfer Agent. Subject to the provisions of Section 9(c) hereof, the Issuer may vary or terminate the appointment of any such Paying Agent or Transfer Agent at any time and from time to time upon giving not less than 90 days' notice to such Paying Agent or Transfer Agent, as the case may be, and to the Fiscal Agent.
The Issuer shall cause notice of any resignation, termination or appointment of any Paying Agent or Transfer Agent or of the Fiscal Agent and of any change in the office through which any such Agent will act to be given as provided in the text of the Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities duly executed on behalf of the Issuer for the purposes of the original issuance of the Securities, (i) to authenticate said Securities in an aggregate principal amount not in excess of $150,000,000 and to deliver said Securities in accordance with an Order or Orders and (ii) thereafter to authenticate and deliver said Securities in accordance with the provisions hereinafter set forth.
The Fiscal Agent may, with the consent of the Issuer, appoint by an instrument or instruments in writing one or more agents (which may include itself) for the authentication of Securities and, with such consent, vary or terminate any such appointment upon written notice and approve any change in the office through which any authenticating agent acts. The Issuer (by written notice to the Fiscal Agent and the authenticating agent whose appointment is to be terminated) may also terminate any such appointment at any time. The Fiscal Agent hereby agrees to solicit written acceptances from the entities concerned (in form and substance satisfactory to the Issuer) of such appointments. In its acceptance of such appointment, each such authenticating agent shall agree to act as an authenticating agent pursuant to the terms and conditions of this Agreement.
4. Payment and Cancellation.
(a) Payment. Subject to the following provisions, the Issuer shall provide to the Fiscal Agent in funds available on or prior to each date on which a payment of principal of or any interest on the Securities shall become due, as set forth in the text of the Securities, such amount, in such coin or currency, as is necessary to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and interest, as the case may be, on the Securities set forth herein and in the text of the Securities. The Fiscal Agent shall arrange directly with any Paying Agent who may have been appointed pursuant to the provisions of Section 2 hereof for the payment from funds so paid by the Issuer of the principal of and interest on the Securities as set forth herein and in the text of the Securities. Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent funds for the payment of the principal thereof and premium and interest, if any, payable thereon under an agreement with respect to such funds containing substantially the same terms and conditions set forth in this Section 4(a) and in Section 8(b) hereof; and the Fiscal Agent shall have no responsibility with respect to any funds so provided by the Issuer to any such Paying Agent.
Any interest on the Securities shall be paid, unless otherwise provided in the text of the Securities, to the persons (the "registered owners") in whose names such Securities are registered on the register maintained pursuant to Section 6 hereof at the close of business on the record dates designated in the text of the Securities. Payments of principal of Securities shall be payable against surrender thereof at the corporate trust office or office of an agent of the Fiscal Agent and at the offices of such other Paying Agents as shall have been appointed pursuant to Section 2 hereof. Payments of principal shall be made against surrender of Securities, and payments of interest on Securities shall be made, in accordance with the foregoing and subject to applicable laws and regulations, by check mailed on or before the due date for such payment to the person entitled thereto at such person's address appearing on the register of the Securities maintained pursuant to Section 6 hereof, or, in the case of payments of principal, to such other address as the registered owner shall provide in writing at the time of such surrender; provided, however, that such payments may be made, in the case of a registered owner of greater than $1,000,000 aggregate principal amount of Securities, by transfer to an account maintained by the payee with a bank if such registered owner so elects by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date of the payments to be obtained, of such election and of the account to which payment is to be made.
(b) Cancellation. All Securities delivered to the Fiscal Agent (or any other Agent appointed pursuant to Section 2 hereof) for payment, redemption, registration of transfer or exchange as herein or in the Securities provided shall be forwarded to the Fiscal Agent by the Agent to which they are delivered. All such Securities shall be canceled and destroyed by the Fiscal Agent or such other person as may be jointly designated by the Issuer and the Fiscal Agent which shall thereupon furnish certificates of such destruction to the Issuer upon the Issuer's request.
5. Exchange of Securities.
The Fiscal Agent, or its agent duly authorized by the Fiscal Agent, is hereby authorized from time to time in accordance with the provisions of the Securities, Section 1(e) and of this Section to authenticate and deliver:
(i) Securities in exchange for or in lieu of Securities of like tenor and of like form which become mutilated, destroyed, stolen or lost; and
(ii) registered Securities of authorized denominations in exchange for a like aggregate principal amount of Securities of like tenor and of like form.
The Securities shall be dated the date of their authentication by the Fiscal Agent. Each Security authenticated and delivered upon any transfer or exchange for or in lieu of the whole or any part of any Security shall carry all the rights if any, to interest accrued and unpaid and to accrue which were carried by the whole or such part of such Security. Notwithstanding anything to the contrary herein contained, such new Security shall be so dated that neither gain nor loss in interest shall result from such transfer or exchange.
6. Register: Record Date for Certain Actions.
The Fiscal Agent, as agent of the Issuer, shall maintain at its corporate trust office in Houston, Texas and at its agent's office in the Borough of Manhattan, The City of New York, a register for the Securities for the registration and registration of transfers of the Securities. Upon presentation for the purpose at the said office of the Fiscal Agent or its agent of any Security, accompanied by a written instrument of transfer in the form approved by the Issuer and the Fiscal Agent (it being understood that, until notice to the contrary is given to holders of Securities, the Issuer and the Fiscal Agent shall each be deemed to have approved the form of instrument of transfer, if any, printed on any definitive Security), executed by the registered holder, in person or by such holder's attorney thereunto duly authorized in writing, such Security shall be transferred upon the register for the Securities, and a new Security of like tenor shall be authenticated and issued in the name of the transferee. Transfers and exchanges of Securities shall be subject to Section 1(e), to such restrictions as shall be set forth in the text of the Securities and to such reasonable regulations as may be prescribed by the Issuer and the Fiscal Agent. Successive registrations and registrations of transfers as aforesaid may be made from time to time as desired and each such registration shall be noted on the Security register. No service charge shall be made for any registration, registration of transfer or exchange of Securities, but, except as otherwise provided herein with respect to the exchange of temporary Securities for definitive Securities, the Fiscal Agent (and any Transfer Agent or authenticating agent appointed pursuant to Section 2 or 3 hereof, respectively) may require payment of a sum sufficient to cover any stamp or other tax or governmental charge in connection therewith and any other amounts required to be paid by the provisions of the Securities.
Any Transfer Agent appointed pursuant to Section 2 hereof shall provide to the Fiscal Agent such information as the Fiscal Agent may reasonably require in connection with the delivery by such Transfer Agent of Securities in exchange for other Securities.
Neither the Fiscal Agent nor any Transfer Agent shall be required to make registrations of transfer or exchange of Securities during any periods set forth in the text of the Securities.
Upon receipt by the Fiscal Agent of any written demand, request or notice with respect to any matter on which the holders of Securities are entitled to act under this Agreement, a record date shall be established for determining holders of Outstanding Securities entitled to join in such demand, request or notice, which record date shall be at the close of business on the day the Fiscal Agent receives such demand, request or notice. The holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such demand, request or notice, whether or not such holders remain holders after such record date; provided, however, unless the holders of the requisite principal amount of the Outstanding Securities shall have joined in such demand, request or notice prior to the day which is the ninetieth day after such record date, such demand, request or notice shall automatically and without further action by any holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a holder or a proxy of a holder, from giving, (i) after expiration of such 90-day period, a new demand, request or notice identical to a demand, request or notice which has been cancelled pursuant to the proviso in the preceding sentence or (ii) during any such 90-day period, a new demand, request or notice contrary to or different from such demand, request or notice, in either of which events a new record date shall be established pursuant to the provisions of this paragraph.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the persons entitled to consent to or approve any action or waive any term, provision or condition of any covenant of this Agreement. If a record date is fixed, the holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to consent to or approve any such action or waive any such term, provision, condition or covenant, whether or not such holders remain holders after such record date; provided, however, that unless such consent, waiver or approval is obtained from the requisite principal amount of holders of Outstanding Securities, or their duly designated proxies, prior to the date which is the ninetieth day after such record date, any such consent, waiver or approval previously given shall automatically and without further action by any holder be cancelled and of no further effect.
7. Delivery of Certain Information.
(a) Non-Reporting Issuer. Subject to Section 7(b), as long as the Issuer is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), at any time upon the request of a registered holder of a Security, the Issuer, or the Fiscal Agent upon request by and at the expense of the Issuer, will promptly furnish or cause to be furnished "Rule 144A Information" (as defined below) with respect to the Issuer to such holder or to a prospective purchaser of such Security designated by such holder in order to permit compliance by such holder with Rule 144A under the Act in connection with the resale of such Security by such holder. "Rule 144A Information" with respect to the Issuer shall be such information with respect to it as is specified pursuant to Rule 144A(d)(4)(i) under the Act (or any successor provision thereto) which, at the date of this Agreement, consists of (x) a very brief statement of the nature of the business, products and services of the Issuer, as the case may be, (which statement shall be as of a date within 12 months prior to the date of the intended resale) and (y) the most recent financial statements of the Issuer and its financial statements for the two fiscal years preceding the period covered in the most recent financial statements. Such financial statements of the Issuer shall include its balance sheet (as of a date less than 16 months before the date of the intended resale) and its profit and loss and retained earnings statements (for the twelve month period preceding the date of such balance sheet and, if the balance sheet is not as of a date less than six months before the date of the intended resale, the most recent profit and loss and retained earnings statements shall be for the period from the date of such balance sheet to a date less than six months before the date of the intended resale) and shall be audited to the extent reasonably available.
(b) Information After Three Years. Neither the Issuer, nor the Fiscal Agent shall be required to furnish Rule 144A Information with respect to the Issuer as contemplated by Sections 7(a) and 7(b), (x) to the holder or a prospective purchaser of a Security in connection with any request made on or after the date which is three years from the later of (i) the date such Security (or any predecessor Security) was acquired from the Issuer or (ii) the date such Security (or any predecessor Security) was last acquired from an "affiliate" of the Issuer within the meaning of Rule 144 under the Act or (y) at any time to a prospective purchaser located outside the United States who is not a "U.S. person" within the meaning of Regulation S under the Act.
(c) Periodic Reports. So long as any Securities are
Outstanding (as defined in Section 11(c) hereof), the Issuer, or the Fiscal
Agent upon request by and at the expense of the Issuer, will furnish or cause to
be furnished to holders of Securities and to the Fiscal Agent, (i) at any time
when the Issuer is subject to Section 13 or 15(d) of the Exchange Act, copies of
its annual and quarterly reports to stockholders and of each report or
definitive proxy statement filed with the Securities and Exchange Commission
(the "Commission") under the Exchange Act, such reports or statements to be so
furnished within 15 days after the due date for filing with the Commission, and
(ii) at any time when the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, (A) its annual financial statements prepared in accordance with
generally accepted accounting principles applied consistently (except as
otherwise noted therein) with those of the prior years (together with notes
thereto and a report thereon by an independent accounting firm of established
national reputation), such report to be so furnished as soon as reasonably
available and in any event within 120 days after the end of the fiscal year
covered thereby, (B) its unaudited comparative financial statements for each of
the first three fiscal quarters and the corresponding quarter of the prior year
prepared in accordance with generally accepted accounting principles applied
consistently (except as otherwise noted therein) with those of the most recent
annual financial statements (which unaudited statements and related notes may be
condensed to the extent permitted by Form 10-Q under the Exchange Act or any
successor form), such statements to be so furnished as soon as reasonably
available and in any event within 60 days after the end of the fiscal quarter
covered thereby, (C) any other interim reports or financial statements prepared
generally for its nonaffiliated investors or lenders, such reports or statements
to be so furnished concurrently with their distribution to such investors or
lenders, and (D) at each time of delivery of the financial statements in (A), a
certificate ("Officers' Certificate") signed by its Chairman of the Board, Vice
Chairman of the Board, President or a Vice President and by its Treasurer,
Assistant Treasurer, Secretary or an Assistant Secretary, and stating whether or
not to the best knowledge of the signers thereof the Issuer is in default in the
performance and observance of any of the terms, provisions and conditions of the
Securities or this Agreement and, if the Issuer shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
8. Conditions of Fiscal Agent's Obligations.
The Fiscal Agent accepts its obligation herein set forth upon the terms and conditions hereof, including the following, to all of which the Issuer agrees and to all of which the rights of holders from time to time of Securities are subject:
(a) Compensation and Indemnity. The Fiscal Agent shall be entitled to reasonable compensation as agreed with the Issuer for all services rendered by it, and the Issuer agrees promptly to pay such compensation and to reimburse the Fiscal Agent for the reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by it in connection with its services hereunder. The Issuer also agrees to indemnify the Fiscal Agent for, and to hold it harmless against, any loss, liability or expense, incurred without negligence or bad faith, arising out of or in connection with its acting as Fiscal Agent or in any other capacity hereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Issuer under this Section 8(a) shall survive payment of all the Securities or the resignation or removal of the Fiscal Agent.
(b) Agency. In acting under this Agreement and in connection with the Securities, the Fiscal Agent is acting solely as agent of the Issuer and does not assume any responsibility for the correctness of the recitals in the Securities (except for the correctness of the statement in its certificate of authentication on the Securities) or any obligation or relationship of agency or trust, for or with any of the owners or holders of the Securities, except that all funds held by the Fiscal Agent for the payment of principal of and any interest on the Securities shall be held in trust for such owners or holders, as the case may be, as set forth herein and in the Securities; provided, however, that monies held in respect of the Securities remaining unclaimed at the end of two years after the principal of all of the Securities shall have become due and payable (whether at maturity or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer as provided and in the manner set forth in the Securities. Upon such repayment, the aforesaid trust with respect to the Securities shall terminate and all liability of the Fiscal Agent and Paying Agents with respect to such funds shall thereupon cease.
(c) Advice of Counsel. The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may consult with their respective counsel or other counsel satisfactory to them, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by them hereunder in good faith and without negligence and in accordance with such opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof each shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Security, notice, direction, consent, certificate, affidavit, statement, or other paper or document believed by it, in good faith and without negligence, to be genuine and to have been passed or signed by the proper party or parties.
(e) Interest in Securities, etc. The Fiscal Agent, any
authenticating agent, and any Paying Agent or Transfer Agent appointed by the
Issuer pursuant to Section 2 hereof and their respective officers, directors and
employees may become the owners of, or acquire any interest in, any Securities,
with the same rights that they would have if they were not the Fiscal Agent,
such authenticating agent, such other Paying Agent or Transfer Agent or such
person, and may engage or be interested in any financial or other transaction
with the Issuer, and may act on, or as depository, trustee or agent for, any
committee or body of holders of Securities or other obligations of the Issuer,
as freely as if they were not the Fiscal Agent, such authenticating agent, such
other Paying Agent or Transfer Agent or such person. The provisions of this
Section 8(e) shall extend to affiliates of the Fiscal Agent, such authenticating
agent, any Paying Agent or any Transfer Agent.
(f) Certifications. Whenever in the administration of this Agreement the Fiscal Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith or negligence on its part, rely upon a certificate signed by any Authorized Officer of the Issuer and delivered to the Fiscal Agent.
(g) No Implied Obligations. The duties and obligations of the Fiscal Agent shall be determined solely by the express provisions of this Agreement, and the Fiscal Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Fiscal Agent. In no event shall the Fiscal Agent be liable for any lost profits, lost savings or other special, exemplary, consequential or incidental damages.
(h) No Liability. The Fiscal Agent shall not be liable for any interest on any funds held by the Fiscal Agent and shall never be required to use, advance or risk its own funds or otherwise incur financial liability in the performance of its duties hereunder.
(i) No Inquiry. The Fiscal Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements of the Securities or other documents on the part of the Issuer or as to the existence of any event of default thereunder.
(j) Agents. The Fiscal Agent may execute any of its trusts or powers or perform any duties under this Agreement either directly or by or through agents or attorneys, may in all cases pay such reasonable compensation as it deems proper to all such agents and attorneys reasonably employed or retained by it, and shall not be responsible for any misconduct or negligence of any agent or attorney appointed with due care by it.
9. Resignation and Appointment of Successor.
(a) Fiscal Agent and Paying Agent. The Issuer agrees, for the benefit of the holders from time to time of the Securities, that there shall at all times be a Fiscal Agent hereunder which shall be a bank or trust company organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, in good standing and having an established place of business or agency in the Borough of Manhattan, The City of New York, and authorized under such laws to exercise corporate trust powers until all the Securities authenticated and delivered hereunder (i) shall have been delivered to the Fiscal Agent for cancellation or (ii) become due and payable and monies sufficient to pay the principal of and any interest on the Securities shall have been made available for payment and either paid or returned to the Issuer as provided herein and in such Securities.
(b) Resignation. The Fiscal Agent may at any time resign by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective, provided that such date shall not be less than three (3) months from the date on which such notice is given, unless the Issuer agrees to accept shorter notice. The Fiscal Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed on behalf of the Issuer and specifying such removal and the date when it shall become effective. Notwithstanding the dates of effectiveness of resignation or removal, as the case may be, to be specified in accordance with the preceding sentences, such resignation or removal shall take effect only upon the appointment by the Issuer of a successor Fiscal Agent (which, to qualify as such, shall be a bank or trust company organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, in good standing and having and acting through an established place of business or agency in the Borough of Manhattan, The City of New York, authorized under such laws to exercise corporate trust powers and having a combined capital and surplus in excess of U.S. $20,000,000) and the acceptance of such appointment by such successor Fiscal Agent. Upon its resignation or removal, the Fiscal Agent shall be entitled to payment by the Issuer pursuant to Section 8 hereof of compensation for services rendered and to reimbursement of reasonable out-of-pocket expenses incurred hereunder.
(c) Successors. In case at any time the Fiscal Agent or any Paying Agent in respect of the Securities (if such Paying Agent is the only Paying Agent located in a place where, by the terms of the Securities or this Agreement, the Issuer is required to maintain a Paying Agent) shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they severally mature, or if a receiver of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of the Federal Bankruptcy Act or under the provisions of any similar legislation, or if a receiver of it or its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose or rehabilitation, conservation or liquidation, a successor Fiscal Agent or Paying Agent, as the case may be, qualified as aforesaid, shall be appointed by the Issuer by an instrument in writing, filed with the successor Fiscal Agent or Paying Agent, as the case may be, and the predecessor Fiscal Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of a successor Fiscal Agent or Paying Agent, as the case may be, and acceptance by such successor of such appointment, the Fiscal Agent or Paying Agent, as the case may be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the case may be, hereunder. If no successor Fiscal Agent or other Paying Agent, as the case may be, shall have been so appointed by the Issuer and shall have accepted appointment as hereinafter provided, and, in the case of such other Paying Agent, if such other Paying Agent is the only Paying Agent located in a place where, by the terms of the Securities of this Agreement, the Issuer is required to maintain a Paying Agent, then any holder of a Security who has been a bona fide holder of a Security for at least six months, on behalf of such holder and all others similarly situated, or the Fiscal Agent may petition any court of competent jurisdiction for the appointment of a successor agent. The Issuer shall give prompt written notice to each other Paying Agent of the appointment of a successor Fiscal Agent.
(d) Acknowledgment. Any successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Fiscal Agent hereunder, and such predecessor, upon payment of its compensation, and reimbursement of its disbursements then unpaid, shall thereupon become obligated to transfer, delivery and pay over, and such successor Fiscal Agent shall be entitled to receive, all monies, securities, books, records or other property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, etc. Any corporation into which the Fiscal Agent hereunder may be merged, or any corporation resulting from any merger or consolidation to which the Fiscal Agent shall be a party, or any corporation to which the Fiscal Agent shall sell or otherwise transfer all or substantially all of the corporate trust business of the Fiscal Agent, provided that it shall be qualified as aforesaid, shall be the successor Fiscal Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
10. Payment of Taxes.
The Issuer will pay all stamp and other duties, if any, which may be imposed by the United States of America or any political subdivision thereof or taxing authority of or in the foregoing with respect to this Agreement or the issuance of the Securities.
11. Amendments.
(a) Approval. With the written consent of the registered owners of not less than a majority in aggregate principal amount of the Securities then Outstanding (or of such other percentage as may be set forth in the text of the Securities with respect to the action being taken), the Issuer and the Fiscal Agent may modify, amend or supplement the terms of the Securities and this Agreement in any way, and the holders of Securities may make, take or give any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement or the Securities to be made, given or taken by holders of Securities; provided, however, that no such action may, without the consent of the holder of each Security affected thereby, (A) change the due date for the payment of the principal of or any installment of interest on any Security, (B) reduce the principal amount of any Security or the interest rate thereon or any premium payable upon the redemption thereof, (C) change the coin or currency in which or the place at which payment with respect to interest or principal in respect of Securities are payable as required by the proviso of the first sentence of the second paragraph of Section 2 hereof, or (D) reduce the proportion of the principal amount of Securities, the consent of the holders of which is necessary to modify, amend or supplement this Agreement or the terms and conditions of the Securities or to make, take or give any request, demand, authorization, direction, notice, consent, waiver or other action provided hereby or thereby to be made, taken or given. The Issuer and the Fiscal Agent may, without the consent of any holder of Securities, amend this Agreement or the Securities for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision thereof, hereof, or in any manner which the Issuer and the Fiscal Agent may determine that shall not be inconsistent with the Securities and shall not adversely affect the interest of any holder of Securities.
It shall not be necessary for the consent of the holders of Securities to approve the particular form of any proposed modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action, but it shall be sufficient if such consent shall approve the substance thereof.
(b) Binding Nature of Amendments, Notice, Notations, etc. Any instrument given by or on behalf of any holder of a Security in connection with any consent to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action will be irrevocable once given and will be conclusive and binding on all subsequent holders of such Security or any Security issued directly or indirectly in exchange or substitution therefore or in lieu thereof. Any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action will be conclusive and binding on all holders of Securities, whether or not they have given such consent, and whether or not notation of such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action is made upon the Securities. Notice of any modification or amendment of, supplement to, or request, demand, authorization, direction, notice, consent, waiver or other action with respect to the Securities or this Agreement (other than for purposes of curing any ambiguity or of curing, correcting or supplementing any defective provision hereof or thereof) shall be given to each holder of Securities affected thereby, in all cases as provided in the Securities.
Securities authenticated and delivered after the effectiveness of any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may bear a notation in the form approved by the Fiscal Agent and the Issuer as to any matter provided for in such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action. New Securities modified to conform, in the opinion of the Fiscal Agent and the Issuer, to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may be prepared by the Issuer, authenticated by the Fiscal Agent (or any authenticating agent appointed pursuant to Section 3 hereof) and delivered in exchange for Outstanding Securities.
(c) "Outstanding" Defined. For purposes of the provisions of this Agreement and the Securities, any Security authenticated and delivered pursuant to this Agreement shall, as of any date of determination, be deemed to be "Outstanding", except:
(i) Securities theretofore canceled by the Fiscal Agent or delivered to the Fiscal Agent for cancellation or held by the Fiscal Agent for reissuance but not reissued by the Fiscal Agent;
(ii) Securities which have become due and payable at maturity or otherwise and with respect to which monies sufficient to pay the principal thereof and any interest thereon shall have been made available to the Fiscal Agent; or
(iii) Securities which have been defeased pursuant to Section 14(b) hereof; or
(iv) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to this Agreement
provided, however, that in determining whether the holders of the requisite principal amount of Outstanding Securities have consented to any request, demand, authorization, direction, notice, consent, waiver, amendment, modification or supplement hereunder, Securities owned directly or indirectly by the Issuer or any affiliate of the Issuer shall be disregarded and deemed not to be Outstanding.
12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
13. Notices.
All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing and if sent to the Fiscal Agent shall be delivered, transmitted by facsimile, telexed or telegraphed to it at 600 Travis Street, Suite 1150, Houston, Texas 77002, Attention: Global Trust Services, facsimile no. (713) 216-5476 or if sent to the Issuer shall be delivered, transmitted by facsimile, telexed or telegraphed to it at 1400 Smith Street, Houston, Texas 77002 Attention: Vice President Finance and Accounting, facsimile no. (713) 646-4761. The foregoing addresses for notices or communications may be changed by written notice given by the addressee to each party hereto, and the addressee's address shall be deemed changed for all purposes from and after the giving of such notice.
If the Fiscal Agent shall receive any notice or demand addressed to the Issuer by the holder of a Security, the Fiscal Agent shall promptly forward such notice or demand to the Issuer.
14. Defeasance (Legal and Covenant).
(a) Issuer's Option to Effect Defeasance or Covenant Defeasance. The Issuer may at its option, by Order of the Issuer delivered to the Fiscal Agent, elect to have either Section 14(b) or Section 14(c) applied to the Outstanding Securities upon compliance with the conditions set forth below in this Section 14.
(b) Defeasance and Discharge. Upon exercise by the Issuer
of the option provided in Section 14(a) applicable to this Section 14(b), the
Issuer shall be deemed to have been discharged from its obligations with respect
to the Outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Defeasance"). For this purpose, such Defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities and to have satisfied all
its other obligations under such Securities and this Agreement insofar as the
Securities are concerned (and the Issuer and the Fiscal Agent shall execute
proper instruments acknowledging the same), except for the following, which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of holders of the Securities to receive, solely from the trust fund described in
Section 14(d) and as more fully set forth in such Section, payments in respect
of the principal of and any interest on the Securities when such payments are
due, (ii) the Issuer's obligations with respect to the Securities under Sections
1(d), 2, 4(a), 5, 6, 7(a), 7(b) and 9 of this Agreement and paragraphs 3, 4(a),
9 (insofar as it relates to Sections 7(a) and 7(b) of this Agreement), 10 and 11
of the Securities and (iii) this Section 14. Subject to compliance with this
Section 14, the Issuer may exercise its option under this Section 14(b)
notwithstanding the prior exercise of its option under Section 14(c).
(c) Covenant Defeasance. Upon the Issuer's exercise of
the option provided in Section 14(a) applicable to this Section 14(c), the
Issuer shall be released from its obligations under paragraphs 6(c), 7, and
8(a)(iii) of the Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of the Issuer's obligations shall be unaffected thereby.
(d) Conditions to Defeasance and Covenant Defeasance. The
following shall be the conditions to application of either Section 14(b) or
Section 14(c) to the then Outstanding Securities:
(i) The Issuer shall irrevocably have deposited or caused to be deposited with a trustee, who may be the Fiscal Agent and who shall agree to comply with the provisions of this Section 14 applicable to it (the "Defeasance Trustee"), as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities, (A) money in an amount, or (B) U.S. Government Obligations and/or Eligible Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Defeasance Trustee, to pay and discharge, and which shall be applied by the Defeasance Trustee to pay and discharge, the principal of and each installment of interest on the Securities not later than one day before the stated maturity of such principal or installment of interest in accordance with the terms of this Agreement and of the Securities. For this purpose: "U.S. Government Obligations" means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit are pledged or (y) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Act) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt; and "Eligible Obligations" means interest bearing obligations as a result of the deposit of which the Securities are rated in the highest generic long- term debt rating category assigned to legally defeased debt by one or more nationally recognized rating agencies.
(ii) In the case of an election under Section 14(b), the Issuer shall have delivered to the Defeasance Trustee an opinion of counsel stating that (x) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (y) since the date of this Agreement there has been a change in the applicable U.S. Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the Outstanding Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred.
(iii) In the case of an election under Section 14(c), the Issuer shall have delivered to the Defeasance Trustee an opinion of counsel to the effect that the holders of the Outstanding Securities will not recognize gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred.
(iv) No event of default under paragraph 6 of the Securities or
event which with notice or lapse of time or both would become
such an event of default shall have occurred and be continuing
on the date of such deposit or, insofar as paragraphs 6(d) and
(e) of the Securities are concerned, at any time during the
period ending on the 121st day after the date of such deposit
(it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(v) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Issuer is a party or by which it is bound.
(vi) The Issuer shall have delivered to the Fiscal Agent and the Defeasance Trustee an Officers' Certificate and an opinion of counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 14(b) or the covenant defeasance under Section 14(c) (as the case may be) have been complied with.
(vii) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the Investment Company Act of 1940, as amended, or such trust shall be qualified under such act or exempt from regulation thereunder.
(e) Deposit in Trust: Miscellaneous. All money, U.S. Government Obligations and Eligible Obligations (including the proceeds thereof) deposited with the Defeasance Trustee pursuant to Section 14(d) in respect of the Securities shall be held in trust and applied by the Defeasance Trustee, in accordance with the provisions of the Securities and this Agreement, to the payment, either directly or through any Paying Agent as the Defeasance Trustee may determine, to the holders of the Securities, of all sums due and to become due thereon in respect of principal and any interest, but such money need not be segregated from other funds except to the extent required by law. Any money deposited with the Defeasance Trustee for the payment of the principal of or any interest on any Security and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Issuer upon Order and the holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Defeasance Trustee with respect to such trust money shall thereupon cease.
The Issuer shall pay and indemnify the Defeasance Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations or Eligible Obligations deposited pursuant to Section 14(d) or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the holders of the Outstanding Securities.
Anything in this Section 14 to the contrary notwithstanding, the Defeasance Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money, U.S. Government Obligations or Eligible Obligations held by it as provided in Section 14(d) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Defeasance Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance.
(f) Reinstatement. If the Defeasance Trustee is unable to
apply any money in accordance with Section 14(b) or 14(c) by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's obligations under this
Agreement and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Section 14 until such time as the
Defeasance Trustee is permitted to apply all such money in accordance with
Section 14(b) or 14(c); provided, however, that if the Issuer makes any payment
of principal of or interest on any Security following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the holders of such
Securities to receive such payment from the money held by the Defeasance
Trustee.
15. Headings
The section headings herein are for convenience only and shall not affect the construction hereof.
16. Counterparts
This agreement may be executed in one or more counterparts, and by each party separately on a separate counterpart, and each such counterpart when executed and delivered shall be deemed to be an original. Such counterparts shall together constitute one and the same instrument.
17. Successors and Assigns.
All covenants and agreements in this Agreement by the Issuer shall bind its respective successors and assigns, whether so expressed or not.
18. Separability Clause
In case any provision in this Agreement or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
NORTHERN NATURAL GAS COMPANY
By /s/ George P. Fastuca
----------------------
Name: George P. Fastuca
Title: V.P., Finance and Accounting
|
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
As Fiscal Agent.
By___________________________________
Authorized Signatory
EXHIBIT A
FORM OF SECURITY
[Form of Face
of Security]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE FISCAL AGENT. THE EXEMPTION PROVIDED BY RULE 144A UNDER THE ACT MAY BE AVAILABLE TO PERMIT SALE OR TRANSFER OF THIS SECURITY TO QUALIFIED INSTITUTIONAL BUYERS (WITHIN THE MEANING OF RULE 144A) WITHOUT REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT (A) SUCH
HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY (WITHOUT CONSENT OF THE
ISSUER) PRIOR TO TWO YEARS FROM THE LATER OF SEPTEMBER 4, 1998 OR THE DATE ON
WHICH THIS SECURITY WAS LAST HELD BY AN AFFILIATE OF THE ISSUER OTHER THAN (I)
TO A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A,
(II) TO A NON-U.S. PERSON IN A TRANSACTION COMPLYING WITH REGULATIONS UNDER THE
ACT, (III) FOLLOWING ONE YEAR FROM SUCH TIME, IN A TRANSACTION COMPLYING WITH
RULE 144 UNDER THE ACT, OR (IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT (IT BEING UNDERSTOOD THAT AS A CONDITION TO THE
REGISTRATION OF TRANSFER OF THIS SECURITY, THE ISSUER OR THE FISCAL AGENT MAY,
IN CIRCUMSTANCES THEY BELIEVE APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE
WITH ANY SUCH EXEMPTION) AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE FOREGOING LEGENDS MAY BE REMOVED FROM THE SECURITIES ON THE
CONDITIONS SPECIFIED IN THE FISCAL AGENCY AGREEMENT.
No. R- [Denomination]
NORTHERN NATURAL GAS COMPANY
6.75% Senior notes due September 15, 2008
NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the laws of the State of Delaware (herein called the "Issuer"), for value received, hereby promises to pay to ________________ or registered assigns, the principal sum of ___________________ on September 15, 2008 and to pay interest thereon from September 4, 1998 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on March 15 and September 15 in each year, commencing March 15, 1999 (each an "Interest Payment Date"), at the rate of 6.75% per annum, until the principal hereof is paid or made available for payment and (to the extent that the payment of such interest shall be legally enforceable) at the rate per annum equal to the above rate plus 1% per annum on any overdue principal and any overdue installment of interest. Interest on the Securities shall be computed on the basis of 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Fiscal Agency Agreement hereinafter referred to, be paid to the person (the "registered holder") in whose name this Security (or one or more predecessor Securities) is registered at the close of business on March 1 or September 1 (whether or not a business day), as the case may be (each a "Regular Record Date"), next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of Securities not less than 10 days prior to such special record date.
Principal of this Security shall be payable against surrender hereof at the corporate trust office or office of an agent of the Fiscal Agent hereinafter referred to or at such other offices or agencies as the Issuer may designate and at the offices of such other Paying Agents as the Issuer shall have appointed pursuant to the Fiscal Agency Agreement. Payments of principal shall be made against surrender of this Security, and payments of interest on this Security shall be made, in accordance with the foregoing and subject to applicable laws and regulations, by check mailed on or before the due date for such payment to the person entitled thereto at such person's address appearing on the aforementioned register or, in the case of payments of principal to such other address as the registered holder may specify upon such surrender; provided, however, that any payments shall be made, in the case of a registered holder of at least $1,000,000 aggregate principal amount of Securities, by transfer to an account maintained by the payee with a bank if such registered holder so elects by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date of the payments to be obtained, of such election and of the account to which payments are to be made. The Issuer covenants that until this Security has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the principal of and interest on this Security have been made available for payment and either paid or returned to the Issuer as provided herein, it will at all times maintain an established place of business or agency in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Securities as herein provided.
Reference is hereby made to the further provisions of this Security set forth on the following pages hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, this Security shall not be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed and its corporate seal to be affixed hereto.
Date: NORTHERN NATURAL GAS COMPANY
By__________________________________
George P. Fastuca
Vice President, Finance and
Accounting
[Corporate Seal]
Attest:
______________________________
Vice President and Secretary
|
This is one of the Securities referred to in the within- mentioned Fiscal Agency Agreement.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION,
as Fiscal Agent.
By_________________________________
Date of Authentication: ___________
[Form of reverse of Security]
l. This Security is one of a duly authorized issue of securities of the Issuer designated as its 6.75% Senior Notes due September 15, 2008 (herein called the "Securities"), limited in aggregate principal amount to $150,000,000, issued and to be issued in accordance with a Fiscal Agency Agreement, dated as of September 4, 1998 (herein called the "Fiscal Agency Agreement"), between the Issuer and Chase Bank of Texas, National Association, as Fiscal Agent (herein called the "Fiscal Agent", which term includes any successor fiscal agent under the Fiscal Agency Agreement), copies of which Fiscal Agency Agreement are on file and available for inspection at the corporate trust office of the Fiscal Agent which at the date hereof is at 600 Travis Street, Suite 1150, Houston, Texas 77002.
The Securities are unsecured direct, unconditional and general obligations of the Issuer and will rank equally with all other unsecured and unsubordinated indebtedness of the Issuer.
2. The Securities are issuable only in fully registered form, without coupons, in minimum denominations of U.S. $100,000 and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain in the Borough of Manhattan, The City of New York, an established place of business or agency where Securities may be surrendered for registration of transfer or exchange. The Issuer has initially appointed the Fiscal Agent acting through its corporate trust office in Houston, Texas and as its agent's office in the Borough of Manhattan, The City Of New York, as their agent for such purpose and the Issuer has agreed to cause to be kept at such offices a register in which, subject to such reasonable regulations as it may prescribe, the Issuer will provide for the registration of Securities and of transfers of Securities. The Issuer reserves the right to vary or terminate the appointment of the Fiscal Agent as security registrar or of any Transfer Agent or to appoint additional or other registrars or Transfer Agents or to approve any change in the office through which any security registrar or any Transfer Agent acts, provided that there will at all times be a security registrar or agent thereof in the Borough of Manhattan, The City of New York. Registered holders of the Securities will receive notice of any such change.
The transfer of a Security is registrable on the aforementioned register upon surrender of such Security at the corporate trust office of the Fiscal Agent or the office of the agent of the Fiscal Agent or any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Fiscal Agent duly executed by, the registered holder thereof or such holder's attorney duly authorized in writing. Upon such surrender of this Security for registration of transfer, the issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.
At the option of the registered holder upon request confirmed in writing, Securities may be exchanged for Securities of any authorized denominations and of a like tenor, form and aggregate principal amount upon surrender of the Securities to be exchanged at the office of any Transfer Agent or at the corporate trust office of the Fiscal Agent or agent thereof. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Securities which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange will be effected upon the Transfer Agent or the Fiscal Agent, as the case may be, being satisfied with the documents of title and identity of the person making the request and subject to such reasonable regulations as the Issuer may from time to time agree with the Transfer Agent and the Fiscal Agent.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations, of the Issuer evidencing the same debt and entitled to the same benefits, as the Securities surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, the Fiscal Agent nor any such agent shall be affected by notice to the contrary.
4. (a) The Issuer shall pay to the Fiscal Agent at its principal office in Houston, Texas on or prior to each Interest Payment Date and the maturity date of the Securities, in such amounts sufficient (with any amounts then held by the Fiscal Agent and available for the purpose) to pay the interest on and the principal of the Securities due and payable on such Interest Payment Date or maturity date, as the case may be in funds available on such date. The Fiscal Agent shall apply the amounts so paid to it to the payment of such interest and principal in accordance with the terms of the Securities. Any monies paid by the Issuer to the Fiscal Agent for the payment of the principal of or interest on any Securities and remaining unclaimed at the end of two years after such principal or interest shall have become due and payable (whether at maturity or otherwise) shall then be repaid to the Issuer upon its written request, and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer may have to pay the principal of and interest on this Security as the same shall become due.
(b) In any case where the due date for the payment of the principal of or interest on any Security shall be at any place of payment a day on which banking institutions are authorized or obligated by law to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions are authorized or obligated by law to close, with the same force and effect as if made on the date for such payment, and no interest shall accrue for the period after such date.
5. The Issuer shall pay all stamp and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Fiscal Agency Agreement or the issuance of this Security. Except as otherwise provided in this Security, the Issuer shall not be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.
6. In the event of:
(i) default in the payment of any interest on any Security for a period of 30 days after the date when due; or
(ii) default in the payment of the principal of any Security when due (whether at maturity or otherwise); or
(iii) default in the performance or breach of any other covenant or agreement of the Issuer contained in the Securities or in the Fiscal Agency Agreement for a period of 60 days after the date on which written notice of such default requiring the Issuer to remedy the same and stating that such notice is a "Notice of Default" shall first have been given to the Issuer and the Fiscal Agent by the holders of at least 25% in principal amount of the Securities at the time Outstanding (as defined in the Fiscal Agency Agreement); or
(iv) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Issuer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or of any substantial part of the property of the Issuer, or ordering the winding up or liquidation of the affairs of the Issuer, and any such decree or order for relief or any such other decree or order shall continue unstayed and in effect for a period of 60 consecutive days; or
(v) commencement by the Issuer of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Issuer to the entry of a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer, or the filing by the Issuer of a petition or answer or consent seeking reorganization or relief under any such applicable Federal or State law, or the consent by the Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or of any substantial part of its property, or the making by the Issuer of an assignment for the benefit of creditors, or the taking of action by the Issuer in furtherance of any such action;
the registered holder of this Security may, at such holder's option, declare the principal of this Security and the interest accrued hereon to be due and payable immediately by written notice to the Issuer and the Fiscal Agent at its corporate trust office, and unless all such defaults shall have been cured by the Issuer prior to receipt of such written notice, the principal of the Security and the interest accrued thereon shall become and be immediately due and payable. For purposes of the Securities, "Subsidiary" of the Issuer means a corporation all of the outstanding voting stock of which is owned, directly or indirectly, by the Issuer or by one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
7. So long as any of the Securities are Outstanding, the Issuer will not pledge, mortgage or hypothecate, or permit to exist, and will not cause, suffer or permit any Subsidiary of it to pledge, mortgage or hypothecate, or permit to exist, except in favor of the Issuer or any Subsidiary of it, any mortgage pledge or other lien upon, any Principal Property (as hereinafter defined) at any time owned by it, to secure any Indebtedness ( as hereinafter defined) of it, without making effective provision whereby the Outstanding Securities shall be equally and ratably secured with any and all such indebtedness of it similarly entitled to be equally and ratably secured; provided, however, that this restriction shall not apply to or prevent the creation or existence of:
(i) undetermined or inchoate liens and charges incidental to construction, maintenance, development or operation;
(ii) any liens of taxes and assessments for the current year;
(iii) any liens of taxes and assessments not at the time delinquent;
(iv) any liens of specified taxes and assessments which are delinquent but the validity of which is being contested in good faith at the time by the Issuer or any Subsidiary of it;
(v) any liens reserved in leases for rent and for compliance with the terms of the lease in the case of leasehold estates;
(vi) any obligations or duties, affecting the property of the Issuer or any Subsidiary of it, to any municipality or public authority with respect to any franchise, grant, license, permit or similar arrangement;
(vii) the liens of any judgments or attachments in an aggregate amount not in excess of $10,000,000, or the lien of any judgment or attachment the execution or enforcement of which has been stayed or which has been appealed and secured, if necessary, by the filing of an appeal bond;
(viii) any mortgage, pledge, lien or encumbrance on any property held or used by the Issuer or any Subsidiary of it in connection with the exploration for, development of or production of oil, gas, natural gas (including liquified gas and storage gas), other hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or other natural resources or synthetic fuels, such properties to include, but not be limited to, the interest of the Issuer or such Subsidiary in any mineral fee interests, oil, gas or other mineral leases, royalty, overriding royalty or net profits interests, production payments and other similar interests, wellhead production equipment, tanks, field gathering lines, leasehold or field separation and processing facilities, compression facilities and other similar personal property and fixtures;
(ix) any mortgage, pledge, lien or encumbrance on oil, gas, natural gas (including liquified gas and storage gas), and other hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or other natural resources or synthetic fuels produced or recovered from any property, an interest in which is owned or leased by the issuer or any Subsidiary of it;
(x) mortgages, pledges, liens or encumbrances upon any property heretofore or hereafter acquired, created at the time of acquisition or within 365 days thereafter to secure all or a portion of the purchase price thereof, or existing thereon at the date of acquisition, whether or not assumed by the Issuer or any Subsidiary of it, provided that every such mortgage, pledge, lien or encumbrance shall apply only to the property so acquired and fixed improvements thereon;
(xi) any extension, renewal or refunding, in whole or in part, of any mortgage, pledge, lien or encumbrance permitted by Section (x) above, if limited to the same property or any portion thereof subject to, and securing not more than the amount secured by, the mortgage, pledge, lien or encumbrance extended, renewed or refunded;
(xii) mortgages, pledges, liens or encumbrances upon any property heretofore or hereafter acquired by any corporation that is or becomes such a Subsidiary of the Issuer after the date of the Fiscal Agency Agreement ("Acquired Entity"), provided that every such mortgage, pledge, lien or encumbrance (1) shall either (a) exist prior to the time the Acquired Entity becomes such a Subsidiary or (b) be created at the time the Acquired Entity becomes such a Subsidiary or within 365 days thereafter to secure all or a portion of the acquisition price thereof and (2) shall only apply to those properties owned by the Acquired Entity at the time it becomes such a Subsidiary or thereafter acquired by it from sources other than the Issuer or any other Subsidiary of it;
(xiii) the pledge of current assets, in the ordinary course of business, to secure current liabilities;
(xiv) mechanics' or materialmen's liens, any liens or charges arising by reason of pledges or deposits to secure payment of workmen's compensation or other insurance, good faith deposits in connection with tenders, leases of real estate, bids or contracts (other than contracts for the payment of money), deposits to secure duties or public or statutory obligations, deposits to secure, or in lieu, surety, stay or appeal bonds, and deposits as security for the payment of taxes or assessments or similar charges;
(xv) any lien arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulation for any purpose at any time in connection with the financing of the acquisition or construction of property to be used in the business of the Issuer or any Subsidiary of it or as required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege or license, or to enable the Issuer or any such Subsidiary to maintain self-insurance or to participate in any funds established to cover any insurance risks or in connection with workmen's compensation, unemployment insurance, old age pensions or other social security, or to share in the privileges or benefits required for companies participating in such arrangements;
(xvi) any lien to secure Indebtedness of the Issuer other than Funded Debt (as hereinafter defined);
(xvii) any mortgage, pledge, lien or encumbrance of or upon any office equipment, data processing equipment (including, without limitation, computer and computer peripheral equipment), or transportation equipment (including with limitation, motor vehicles, tractors, trailers, marine vessels, barges, towboats, rolling stock and aircraft);
(xviii) any mortgage, pledge, lien or encumbrance created or assumed by the Issuer or any Subsidiary of it in connection with the issuance of debt securities the interest on which is excludable from gross income of the holder of such security pursuant to the Internal Revenue Code of 1986, as amended, for the purpose of financing, in whole or in part, the acquisition or construction of property to be used by the Issuer or any such Subsidiary; or
(xix) the pledge or assignment of accounts receivable, or the pledge or assignment of conditional sales contracts or chattel mortgages and evidences of indebtedness secured thereby, received in connection with the sale by the Issuer or any Subsidiary of it of goods or merchandise to customers of the Issuer or any Subsidiary.
In case the Issuer or any Subsidiary of it shall propose to pledge, mortgage or hypothecate any Principal Property at any time owned by it to secure any of its Indebtedness, other than as permitted by subdivisions (i) to (xix), inclusive, of this Paragraph 7, the Issuer will prior thereto give written notice thereof to the Fiscal Agent, and the Issuer will, or will cause such Subsidiary to, prior to or simultaneously with such pledge, mortgage or hypothecation, effectively secure all the Securities equally and ratably with such Indebtedness.
Notwithstanding the foregoing provisions of this Paragraph 7, the Issuer or any Subsidiary of it may issue, assume or guarantee Indebtedness secured by a mortgage which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other Indebtedness of the Issuer or a Subsidiary of it secured by a mortgage which (if originally issued, assumed or guaranteed at such time) would otherwise be subject to the foregoing restrictions (not including Indebtedness permitted to be secured under clauses (i) through (xix) above), does not at the time exceed 10% of the Consolidated Net Tangible Assets of the Issuer as shown on its audited consolidated financial statements as of the end of the fiscal year preceding the date of determination.
For purposes of the Securities,
"Consolidated Net Tangible Assets" of any corporation means total assets less (a) total current liabilities (excluding indebtedness due within 365 days) and (b) goodwill, patents and trademarks, all as reflected in such corporation's audited consolidated balance sheet preceding the date of a determination under the immediately preceding paragraph of this Paragraph 7.
"Funded Debt" as applied to any corporation means all Indebtedness incurred, created, assumed or guaranteed by such corporation, or upon which it customarily pays interest charges, which matures, or is renewable by such corporation to a date, more than one year after the date as of which Funded Debt is being determined; provided, however, that the term "Funded Debt" shall not include (i) Indebtedness incurred in the ordinary course of business representing borrowings, regardless of when payable, of such corporation from time to time against, but not in excess of the face amount of, its installment accounts receivable for the sale of appliances and equipment sold in the regular course of business or (ii) advances for construction and security deposits received by such corporation in the ordinary course of business.
"Indebtedness" as applied to any corporation, shall mean bonds, debentures, notes and other instruments representing obligations created or assumed by any such corporation for the repayment of money borrowed (other than unamortized debt discount or premium). All Indebtedness secured by a lien upon property owned by any corporation and upon which Indebtedness any such corporation customarily pays interest, although any such corporation has not assumed or become liable for the payment of such Indebtedness, shall for all purposes of the Securities be deemed to be Indebtedness of any such corporation. All Indebtedness for money borrowed incurred by other persons which is directly guaranteed as to payment of principal by any corporation shall for all purposes of the Securities be deemed to be Indebtedness of such corporation, but no other contingent obligation of such corporation in respect of Indebtedness incurred by other persons shall for any purpose be deemed Indebtedness of such corporation. Indebtedness of any corporation shall not include: (i) amounts which are payable only out of all or a portion of the oil, gas, natural gas, helium, coal, metals, minerals, steam, timber, hydrocarbons, or geothermal or other natural resources produced, derived, or extracted from properties owned or developed by such corporation; (ii) any amount representing capitalized lease obligations; (iii) any indebtedness incurred to finance oil, gas, natural gas, helium, coal, metal, mineral, steam, timber, hydrocarbons, or geothermal or other natural resources or synthetic fuel exploration or development, payable with respect to principal and interest, solely out of the proceeds of oil, gas, natural gas, helium, coal, metals, minerals, steam, timber, hydrocarbons, or geothermal or other natural resources or synthetic fuel to be produced, sold, and/or delivered by any such corporation; (iv) indirect guarantees or other contingent obligations in connection with the Indebtedness of others, including agreements, contingent or otherwise, with such other persons or with third persons with respect to, or to permit or ensure the payment of, obligations of such other persons, including, without limitation, agreements to purchase or repurchase obligations of such other persons, agreements to advance or supply funds to or to invest in such other persons, or agreements to pay for property, products, or services of such other persons (whether or not conferred, delivered or rendered), and any demand charge, throughput, take-or-pay, keep-well, make-whole, cash deficiency, maintenance of working capital or earnings or similar agreements; and (v) any guarantees with respect to lease or other similar periodic payments to be made by other persons.
"Principal Property" of the Issuer means any oil or gas pipeline, gas processing plant or chemical plant located in the United States, except any such pipeline, facility, station or plant that in the opinion of the Board of Directors of the Issuer is not of material importance to the total business conducted by the Issuer or its Subsidiaries. "Principal Property" shall not include any oil or gas property, the production or any proceeds of production from an oil or gas producing property or the production or any proceeds of production of gas processing plants or oil or gas or petroleum products in any pipeline. "Principal Property" shall also include any gas storage facility or gas compressor station located in the United States, except any such facility or station that in the opinion of the Board of Directors of the Issuer is not of material importance to the total business conducted by the Issuer or its Subsidiaries, and "Principal Property" shall not include any liquified natural gas plants and related storage facilities or any natural gas liquids processing plants.
8. (a) The Issuer shall not consolidate with or merge into any other person or convey, transfer or lease its properties and assets substantially as an entirety to any person, and the Issuer shall not permit any person to consolidate with or merge into the Issuer or convey, transfer or lease its properties and assets substantially as an entirety to the Issuer unless:
(i) in case the Issuer shall consolidate with or merge into another person or convey, transfer or lease its properties and assets substantially as an entirety to any person, the person formed by such consolidation or into which the Issuer is merged or the person which acquires by conveyance or transfer, or which leases, the properties and assets of the Issuer substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia (the "Successor Person") and shall expressly assume, by amendment to the Fiscal Agency Agreement signed by the Issuer and such Successor Person and delivered to the Fiscal Agent, the due and punctual payment of the principal of an interest on all the Securities and the performance or observance of every covenant hereof and of the Fiscal Agency Agreement on the part of the Issuer to be performed or observed;
(ii) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or any Subsidiary of it as a result of such transaction as having been incurred by the Issuer or any such Subsidiary at the time of such transaction, no event of default ( as set forth in Paragraph 5), and no event which, with notice or lapse of time or both, would become such an event of default, shall have happened and be continuing;
(iii) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or any Subsidiary of it would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by Paragraph 7 hereof, the Issuer, or the Successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all Indebtedness secured by such mortgage, pledge, lien, security interest or other encumbrance; and
(iv) the Issuer has delivered to the Fiscal Agent an Officers' Certificate and a written opinion or opinions of counsel satisfactory to the Fiscal Agent (who may be counsel to the Issuer), stating that such consolidation, merger, conveyance, transfer or lease and such amendment to the Fiscal Agency Agreement comply with this Paragraph 8 and that all conditions precedent herein provided for relating to such transaction have been complied with.
(b) Upon any such consolidation or merger, or any conveyance, transfer or lease of the properties and assets of the Issuer substantially as an entirety in accordance with Paragraph 8(a), the Successor Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under the Fiscal Agency Agreement and the Securities with the same effect as if the Successor Person had been named as the Issuer in the Fiscal Agency Agreement and the Securities, and thereafter the Issuer, except in the case of a lease of its properties and assets, shall be released from its liability as obligor on any of the Securities and under the Fiscal Agency Agreement.
9. Section 7 of the Fiscal Agency Agreement, which requires the Issuer
to provide registered holders of Securities or, in the case of clauses (a) and
(b) thereof, designated prospective purchasers of Securities with certain
information and an Officers' Certificate, is hereby incorporated mutatis
mutandis by reference herein.
10. Until the date that is two years from the date of original issuance of the Securities, the Issuer will not, and will not permit any of its "affiliates" (as defined under Rule 144 under the Act or any successor provision thereto) to, resell any Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
11. If any mutilated Security is surrendered to the Fiscal Agent, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver in exchange therefor, a new Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.
If there be delivered to the Issuer and the Fiscal Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of each of them harmless, then, in the absence of notice to the Issuer or the Fiscal Agent that such Security has been acquired by a bona fide purchaser, the Issuer shall execute, and upon its request the Fiscal Agent shall authenticate and deliver in lieu of any such destroyed, lost or stolen Security a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Upon the issuance of any new Security under this Paragraph, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and the expenses of the Fiscal Agent) connected therewith.
Every new Security issued pursuant to this Paragraph in lieu of any destroyed, lost or stolen Security, shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone.
Any new Security delivered pursuant to this Paragraph shall be so dated that neither gain nor loss in interest shall result from such exchange.
The Provisions of this Paragraph 11 are exclusive and shall preclude (to the extent lawful) all other nights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
12. Section 11 of the Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and by written consent of a majority in the principal amount of all Outstanding Securities, the Issuer and the Fiscal Agent may modify, amend or supplement the Fiscal Agency Agreement or the terms of the Securities or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver, or other action shall be conclusive and binding on the holder of this Security and on all future holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Security. The Fiscal Agency Agreement and the terms of the Securities may be modified or amended by the Issuer and the Fiscal Agent, without the consent of any holders of Securities, for the purpose of (i) adding to the covenants of the Issuer for the benefit of the holders of Securities, or (ii) surrendering any right or power conferred upon the Issuer, or (iii) securing the Securities pursuant to the requirements of the Securities or otherwise, or (iv) evidencing the succession of another corporation to the Issuer and the assumption by any such successor of the covenants and obligations of the Issuer in the Securities or in the Fiscal Agency Agreement pursuant to Paragraph 8 hereof, or (v) correcting or supplementing any defective provision contained in the Securities or in the Fiscal Agency Agreement, to all of which each holder of any Security, by acceptance thereof, consents.
13. No reference herein to the Fiscal Agency Agreement and no provision of this Security or of the Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
14. This Security is subject to the provisions of Section 14 of the Fiscal Agency Agreement (which are incorporated mutatis mutandis by reference herein) which provide for the defeasance at any time of (i) the entire indebtedness of this Security or (ii) certain covenants and events of default, in each case upon compliance with certain conditions set forth therein.
15. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT 10.70
FISCAL AGENCY AGREEMENT
Between
NORTHERN NATURAL GAS COMPANY,
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
Fiscal Agent
Dated as of May 24, 1999
7.00% Senior Notes due June 1, 2011
TABLE OF CONTENTS
Page
RECITALS OF THE ISSUER 1
1. The Securities 1
(a) General 1
(b) Form of Securities; Denominations of Securities 1
(c) Temporary Securities 2
(d) Legends 2
(e) Book-Entry Provisions 2
2. Fiscal Agent; Other Agents 3
3. Authentication 4
4. Payment and Cancellation 4
(a) Payment 4
(b) Cancellation 5
5. Exchange of Securities 5
6. Register; Record Date for Certain Actions 5
7. Delivery of Certain Information 7
(a) Non-Reporting Issuer 7
(b) Information After Two Years 7
(c) Periodic Reports 7
8. Conditions of Fiscal Agent's Obligations 8
(a) Compensation and Indemnity 8
(b) Agency 8
(c) Advice of Counsel 9
(d) Reliance 9
(e) Interest in Securities, etc. 9
(f) Certifications 9
(g) No Implied Obligations 9
(h) No Liability 10
(i) No Inquiry 10
(j) Agents 10
9. Resignation and Appointment of Successor 10
(a) Fiscal Agent and Paying Agent 10
(b) Resignation 10
(c) Successors 11
(d) Acknowledgment 11
(e) Merger, Consolidation, etc. 11
10. Payment of Taxes 11
11. Amendments 12
(a) Approval 12
(b) Binding Nature of Amendments, Notice, Notations, etc. 12
(c) "Outstanding" Defined 13
12. GOVERNING LAW 13
13. Notices 13
14. Defeasance (Legal and Covenant) 14
(a) Issuer's Option to Effect Defeasance or Covenant
Defeasance 14
(b) Defeasance and Discharge 14
(c) Covenant Defeasance 14
(d) Conditions to Defeasance and Covenant Defeasance 15
(e) Deposit in Trust; Miscellaneous 16
(f) Reinstatement 17
15. Headings 17
|
16. Counterparts 17
17. Successors and Assigns 17
18. Separability Clause 17
EXHIBIT A - FORM OF SECURITY
FISCAL AGENCY AGREEMENT ("Agreement"), dated as of May 24, 1999, between NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the laws of the State of Delaware (the "Issuer"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States of America, as Fiscal Agent.
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of an issue of its 7.00% Senior Notes due June 1, 2011 (herein called the "Securities") of substantially the tenor and amount hereinafter set forth, and to provide therefor the Issuer has duly authorized the execution and delivery of this Agreement.
All things necessary to make the Securities, when executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid obligations of the Issuer, and to make this Agreement a valid agreement of the Issuer, in accordance with their and its terms, have been done.
1. The Securities.
(a) General. The aggregate principal amount of Securities which may be authenticated and delivered under this Agreement is limited to $250,000,000 except for Securities authenticated and delivered upon registration of transfer, or in exchange for, or in lieu of other Securities pursuant to the provisions of this Agreement or the Securities.
The Securities shall be known and designated as the 7.00% Senior Notes due June 1, 2011 of the Issuer. The Securities will be unsecured, direct, unconditional and general obligations of the Issuer and will rank pari passu with all other unsecured and unsubordinated indebtedness of the Issuer.
(b) Form of Securities: Denominations of Securities. The Securities will be issued in registered form without coupons in substantially the form of Exhibit A hereto and in minimum denominations of $100,000 and in integral multiples of $1,000 in excess of $100,000. The Securities shall be executed manually or in facsimile on behalf of the Issuer by its Chairman of the Board, President or a Vice President and by its Secretary or an Assistant Secretary (the "Authorized Officers"), notwithstanding that such officers, or any of them, shall have ceased, for any reason, to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. The Securities may also have such additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with the rules of any securities exchange or governmental agency or as may consistently herewith, be determined by the Authorized Officers of the Issuer executing such Securities, as conclusively evidenced by their execution of such
Securities. All of the Securities shall be otherwise substantially identical except as to denominations of Securities and as provided herein.
(c) Temporary Securities. Until definitive Securities are prepared, the Issuer may execute, and there shall be authenticated and delivered in accordance with the provisions of Section 3 hereof (in lieu of definitive printed Securities), temporary Securities. Such temporary Securities may be in registered global form. Such temporary Securities shall be subject to the same limitations and conditions and entitled to the same rights and benefits as definitive Securities, except as provided herein or therein. Temporary Securities shall be exchangeable for definitive Securities, when such definitive Securities are available for delivery; and upon the surrender for exchange of such temporary Securities, the Issuer shall execute and there shall be authenticated and delivered in accordance with the provisions of Sections 5 and 6 hereof, in exchange for such temporary Securities, a like aggregate principal amount of definitive Securities of like tenor. The Issuer shall pay all charges, including (without limitation) stamp and other taxes and governmental charges, incident to any exchange of temporary Securities for definitive Securities. All temporary Securities shall be identified as such and shall describe the right of the holder thereof to effect an exchange for definitive Securities and the manner in which such an exchange may be effected.
(d) Legends. Securities shall be stamped or otherwise be
imprinted with the legends set forth on the face of the text of the Securities
attached as Exhibit A hereto and any legend pursuant to Section 1(d) or 1(e)
hereof. The legends so provided on the face of the text of the Securities may be
removed from any Security, upon written order signed in the name of the Issuer
by its Chairman of the Board, President or a Vice President and by its Secretary
or an Assistant Secretary and delivered to the Fiscal Agent ("Order"), (i) two
years from the later of issuance of the Security or the date such Security (or
any predecessor) was last acquired from an "affiliate" of the Issuer within the
meaning of Rule 144 under the Securities Act of 1933, as amended, (the "Act") or
(ii) in connection with a sale made pursuant to the volume (and other
restrictions) of Rule 144 under the Act following one year from such time,
provided that, if the legend is removed and the Security is subsequently held by
such an affiliate of the Issuer, the legend shall be reinstated. Any legends
provided pursuant to Sections 1(d) and (e) hereof may be removed as provided in
such Sections.
(e) Book-Entry Provisions. This Section 1(e) shall apply only to global Securities deposited with or on behalf of a depository located in the United States (a "U.S. Depository").
The Securities will be issued initially in the form of one or more registered global Securities deposited with or on behalf of a U.S. Depository, that (i) shall be registered in the name of the U.S. Depository for such global Security or Securities or the nominee of such U.S. Depository, (ii) shall be delivered by the Fiscal Agent to such U.S. Depository or pursuant to such U.S. Depository's instruction and (iii) shall bear a legend substantially to the following effect: "Unless this certificate is presented by an authorized representative of [insert name and address of Depository] to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of [insert name of nominee of Depository], or such other name as is requested by an authorized representative of [insert name of Depository], and any payment hereon is made to [insert name of nominee of Depository], any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful, since the registered owner hereof [insert name of nominee of Depository], has an interest herein."
Members of, or participants in, a U.S. Depository ("Agent Members") shall have no rights under this Agreement with respect to any global Security held on their behalf by a U.S. Depository or under the global Security, and such U.S. Depository may be treated by the Issuer, the Fiscal Agent; and any agent of the Issuer, or the Fiscal Agent as the owner of such global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Fiscal Agent, or any agent of the Issuer, or the Fiscal Agent, from giving effect to any written certification, proxy or other authorization furnished by a U.S. Depository or impair; as between a U.S. Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any Security.
So long as the U.S. Depository is the registered owner of Securities, the U.S. Depository will for all purposes of the Securities and this Agreement be considered the sole owner or holder of such Securities. Until such time as definitive Securities may be issued, beneficial owners of Securities will not be entitled to have Securities registered in their names, will not receive or be entitled to receive physical delivery of Securities in definitive form, and will not be considered the owners or holders thereof under this Agreement for any purpose.
If (i) the Issuer notifies the Fiscal Agent in writing that the U.S. Depository is no longer willing or able to act as a depository and the Issuer is unable to locate a qualified successor within 90 days or (ii) the Issuer, at its option, notifies the Fiscal Agent in writing that it elects to cause the issuance of Securities in definitive form, then, upon surrender by the global Security holder of its global Security, Securities in such form will be issued to each person that such global Security holder and the U.S. Depository identifies as the beneficial owner of the related Securities. Upon such issuance, the Fiscal Agent shall register such Securities in the name of, and cause the same to be delivered to, such person or persons (or the nominee thereof).
2. Fiscal Agent: Other Agents.
The Issuer hereby appoints Chase Bank of Texas, National Association acting through its corporate trust office in Houston, Texas as fiscal agent of the Issuer in respect of the Securities, upon the terms and subject to the conditions herein set forth, and Chase Bank of Texas, National Association hereby accepts such appointment. Chase Bank of Texas, National Association and any successor or successors as such fiscal agent qualified and appointed in accordance with Section 9 hereof are herein called the "Fiscal Agent." The Fiscal Agent shall have the powers and authority granted to and conferred upon it in the Securities and hereby and such further powers and authority to act on behalf of the Issuer as may be mutually agreed upon by the Issuer and the Fiscal Agent. All of the terms and provisions with respect to such powers and authority contained in the Securities are subject to and governed by the terms and provisions hereof.
The Issuer may appoint one or more agents (a "Paying Agent" or "Paying Agents") for the payment (subject to applicable laws and regulations) of the principal of and interest on the Securities, and one or more agents (a "Transfer Agent" or Transfer Agents") for the transfer and exchange of Securities, at such place or places as the Issuer may determine; provided, however, the Issuer shall at all times maintain a Paying Agent or agent thereof and Transfer Agent or agent thereof in the Borough of Manhattan, The City of New York (which Paying
Agent and Transfer Agent may be the Fiscal Agent or any of its affiliates). The Issuer initially appoints the Fiscal Agent as Paying Agent and Transfer Agent. The Issuer shall promptly notify the Fiscal Agent of the name and address of each Paying Agent and Transfer Agent appointed, and will notify the Fiscal Agent of the resignation or termination of any Paying Agent or Transfer Agent. Subject to the provisions of Section 9(c) hereof, the Issuer may vary or terminate the appointment of any such Paying Agent or Transfer Agent at any time and from time to time upon giving not less than 90 days' notice to such Paying Agent or Transfer Agent, as the case may be, and to the Fiscal Agent.
The Issuer shall cause notice of any resignation, termination or appointment of any Paying Agent or Transfer Agent or of the Fiscal Agent and of any change in the office through which any such Agent will act to be given as provided in the text of the Securities.
3. Authentication.
The Fiscal Agent is authorized, upon receipt of Securities duly executed on behalf of the Issuer for the purposes of the original issuance of the Securities, (i) to authenticate said Securities in an aggregate principal amount not in excess of $250,000,000 and to deliver said Securities in accordance with an Order or Orders and (ii) thereafter to authenticate and deliver said Securities in accordance with the provisions hereinafter set forth.
The Fiscal Agent may, with the consent of the Issuer, appoint by an instrument or instruments in writing one or more agents (which may include itself) for the authentication of Securities and, with such consent, vary or terminate any such appointment upon written notice and approve any change in the office through which any authenticating agent acts. The Issuer (by written notice to the Fiscal Agent and the authenticating agent whose appointment is to be terminated) may also terminate any such appointment at any time. The Fiscal Agent hereby agrees to solicit written acceptances from the entities concerned (in form and substance satisfactory to the Issuer) of such appointments. In its acceptance of such appointment, each such authenticating agent shall agree to act as an authenticating agent pursuant to the terms and conditions of this Agreement.
4. Payment and Cancellation.
(a) Payment. Subject to the following provisions, the Issuer shall provide to the Fiscal Agent in funds available on or prior to each date on which a payment of principal of or any interest on the Securities shall become due, as set forth in the text of the Securities, such amount, in such coin or currency, as is necessary to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and interest, as the case may be, on the Securities set forth herein and in the text of the Securities. Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent funds for the payment of the principal thereof and premium and interest, if any, payable thereon under an agreement with respect to such funds containing substantially the same terms and conditions set forth in this Section 4(a) and in Section 8(b) hereof; and the Fiscal Agent shall have no responsibility with respect to any funds so provided by the Issuer to any such Paying Agent.
Any interest on the Securities shall be paid, unless otherwise provided in the text of the Securities, to the persons (the "registered owners")
in whose names such Securities are registered on the register maintained pursuant to Section 6 hereof at the close of business on the record dates designated in the text of the Securities. Payments of principal of Securities shall be payable against surrender thereof at the corporate trust office or office of an agent of the Fiscal Agent and at the offices of such other Paying Agents as shall have been appointed pursuant to Section 2 hereof. Payments of principal shall be made against surrender of Securities, and payments of interest on Securities shall be made in accordance with the foregoing and subject to applicable laws and regulations, by check mailed on or before the due date for such payment to the person entitled thereto at such person's address appearing on the register of the Securities maintained pursuant to Section 6 hereof, or, in the case of payments of principal, to such other address as the registered owner shall provide in writing at the time of such surrender; provided, however, that such payments may be made, in the case of a registered owner of greater than $1,000,000 aggregate principal amount of Securities, by transfer to an account maintained by the payee with a bank if such registered owner so elects by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date of the payments to be obtained, of such election and of the account to which payment is to be made.
(b) Cancellation. All Securities delivered to the Fiscal Agent (or any other Agent appointed pursuant to Section 2 hereof) for payment, redemption, registration of transfer or exchange as herein or in the Securities provided shall be forwarded to the Fiscal Agent by the Agent to which they are delivered. All such Securities shall be canceled and destroyed by the Fiscal Agent or such other person as may be jointly designated by the Issuer and the Fiscal Agent which shall thereupon furnish certificates of such destruction to the Issuer upon the Issuer's request.
5. Exchange of Securities.
The Fiscal Agent, or its agent duly authorized by the Fiscal Agent, is hereby authorized from time to time in accordance with the provisions of the Securities, Section 1(e) and of this Section to authenticate and deliver:
(i) Securities in exchange for or in lieu of Securities of like tenor and of like form which become mutilated, destroyed, stolen or lost; and
(ii) registered Securities of authorized denominations in exchange for a like aggregate principal amount of Securities of like tenor and of like form.
The Securities shall be dated the date of their authentication by the Fiscal Agent. Each Security authenticated and delivered upon any transfer or exchange for or in lieu of the whole or any part of any Security shall carry all the rights if any, to interest accrued and unpaid and to accrue which were carried by the whole or such part of such Security. Notwithstanding anything to the contrary herein contained, such new Security shall be so dated that neither gain nor loss in interest shall result from such transfer or exchange.
6. Register: Record Date for Certain Actions.
The Fiscal Agent, as agent of the Issuer, shall maintain at its corporate trust office in Houston, Texas and at its agent's office in the Borough of Manhattan, The City of New York, a register for the Securities for
the registration and registration of transfers of the Securities. Upon presentation for the purpose at the said office of the Fiscal Agent or its agent of any Security, accompanied by a written instrument of transfer in the form approved by the Issuer and the Fiscal Agent (it being understood that, until notice to the contrary is given to holders of Securities, the Issuer and the Fiscal Agent shall each be deemed to have approved the form of instrument of transfer, if any, printed on any definitive Security), executed by the registered holder, in person or by such holder's attorney thereunto duly authorized in writing, such Security shall be transferred upon the register for the Securities, and a new Security of like tenor shall be authenticated and issued in the name of the transferee. Transfers and exchanges of Securities shall be subject to Section 1(e), to such restrictions as shall be set forth in the text of the Securities and to such reasonable regulations as may be prescribed by the Issuer and the Fiscal Agent. Successive registrations and registrations of transfers as aforesaid may be made from time to time as desired and each such registration shall be noted on the Security register. No service charge shall be made for any registration, registration of transfer or exchange of Securities, but, except as otherwise provided herein with respect to the exchange of temporary Securities for definitive Securities, the Fiscal Agent (and any Transfer Agent or authenticating agent appointed pursuant to Section 2 or 3 hereof, respectively) may require payment of a sum sufficient to cover any stamp or other tax or governmental charge in connection therewith and any other amounts required to be paid by the provisions of the Securities.
Any Transfer Agent appointed pursuant to Section 2 hereof shall provide to the Fiscal Agent such information as the Fiscal Agent may reasonably require in connection with the delivery by such Transfer Agent of Securities in exchange for other Securities.
Neither the Fiscal Agent nor any Transfer Agent shall be required to make registrations of transfer or exchange of Securities during any periods set forth in the text of the Securities.
Upon receipt by the Fiscal Agent of any written demand, request or notice with respect to any matter on which the holders of Securities are entitled to act under this Agreement, a record date shall be established for determining holders of Outstanding Securities entitled to join in such demand, request or notice, which record date shall be at the close of business on the day the Fiscal Agent receives such demand, request or notice. The holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such demand, request or notice, whether or not such holders remain holders after such record date; provided, however, unless the holders of the requisite principal amount of the Outstanding Securities shall have joined in such demand, request or notice prior to the day which is the ninetieth day after such record date, such demand, request or notice shall automatically and without further action by any holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a holder, or a proxy of a holder, from giving, (i) after expiration of such 90-day period, a new demand, request or notice identical to a demand, request or notice which has been cancelled pursuant to the proviso in the preceding sentence or (ii) during any such 90-day period, a new demand, request or notice contrary to or different from such demand, request or notice, in either of which events a new record date shall be established pursuant to the provisions of this paragraph.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the persons entitled to consent to or approve any action or waive any term, provision or condition of any covenant of this
Agreement. If a record date is faxed, the holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to consent to or approve any such action or waive any such term, provision, condition or covenant, whether or not such holders remain holders after such record date; provided, however, that unless such consent, waiver or approval is obtained from the requisite principal amount of holders of Outstanding Securities, or their duly designated proxies, prior to the date which is the ninetieth day after such record date, any such consent, waiver or approval previously given shall automatically and without further action by any holder be cancelled and of no further effect.
7. Delivery of Certain Information.
(a) Non-Reporting Issuer. Subject to Section 7(b), as long as the Issuer is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), at any time upon the request of a registered holder of a Security, the Issuer, or the Fiscal Agent upon request by and at the expense of the Issuer, will promptly furnish or cause to be furnished "Rule 144A Information" (as defined below) with respect to the Issuer to such holder or to a prospective purchaser of such Security designated by such holder in order to permit compliance by such holder with Rule 144A under the Act in connection with the resale of such Security by such holder. "Rule 144A Information" with respect to the Issuer shall be such information with respect to it as is specified pursuant to Rule 144A(d)(4)(i) under the Act (or any successor provision thereto) which, at the date of this Agreement, consists of (x) a very brief statement of the nature of the business, products and services of the Issuer, as the case may be, (which statement shall be as of a date within 12 months prior to the date of the intended resale) and (y) the most recent financial statements of the Issuer and its financial statements for the two fiscal years preceding the period covered in the most recent financial statements. Such financial statements of the Issuer shall include its balance sheet (as of a date less than 16 months before the date of the intended resale) and its profit and loss and retained earnings statements (for the twelve month period preceding the date of such balance sheet and, if the balance sheet is not as of a date less than six months before the date of the intended resale, the most recent profit and loss and retained earnings statements shall be for the period from the date of such balance sheet to a date less than six months before the date of the intended resale) and shall be audited to the extent reasonably available.
(b) Information After Two Years. Neither the Issuer, nor the Fiscal Agent shall be required to furnish Rule 144A Information with respect to the Issuer as contemplated by Sections 7(a) and 7(b), (x) to the holder or a prospective purchaser of a Security in connection with any request made on or after the date which is two years from the later of (i) the date such Security (or any predecessor Security) was acquired from the Issuer or (ii) the date such Security (or any predecessor Security) was last acquired from an "affiliate" of the Issuer within the meaning of Rule 144 under the Act or (y) at any time to a prospective purchaser located outside the United States who is not a "U.S. person" within the meaning of Regulation S under the Act.
(c) Periodic Reports. So long as any Securities are Outstanding (as defined in Section 11(c) hereof), the Issuer, or the Fiscal Agent upon request by and at the expense of the Issuer, will furnish or cause to be furnished to holders of Securities and to the Fiscal Agent, (i) at any time when the Issuer is subject to Section 13 or 15(d) of the Exchange Act, copies of its annual and quarterly reports to stockholders and of each report or definitive proxy statement filed with the Securities and Exchange Commission (the "Commission") under the Exchange Act, such reports or statements to be so
furnished within 15 days after the due date for filing with the Commission, and
(ii) at any time when the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, (A) its annual financial statements prepared in accordance with
generally accepted accounting principles applied consistently (except as
otherwise noted therein) with those of the prior years (together with notes
thereto and a report thereon by an independent accounting firm of established
national reputation), such report to be so furnished as soon as reasonably
available and in any event within 120 days after the end of the fiscal year
covered thereby, (B) its unaudited comparative financial statements for each of
the first three fiscal quarters and the corresponding quarter of the prior year
prepared in accordance with generally accepted accounting principles applied
consistently (except as otherwise noted therein) with those of the most recent
annual financial statements (which unaudited statements and related notes may be
condensed to the extent permitted by Form 10-Q under the Exchange Act or any
successor form), such statements to be so furnished as soon as reasonably
available and in any event within 60 days after the end of the fiscal quarter
covered thereby, (C) any other interim reports or financial statements prepared
generally for its nonaffiliated investors or lenders, such reports or statements
to be so furnished concurrently with their distribution to such investors or
lenders, and (D) at each time of delivery of the financial statements in (A), an
Officers' Certificate stating whether or not to the best knowledge of the
signers thereof the Issuer is in default in the performance and observance of
any of the terms, provisions and conditions of the Securities or this Agreement
and, if the Issuer shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
8. Conditions of Fiscal Agent's Obligations.
The Fiscal Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Issuer agrees and to all of which the rights of holders from time to time of Securities are subject:
(a) Compensation and Indemnity. The Fiscal Agent shall be entitled to reasonable compensation as agreed with the Issuer for all services rendered by it, and the Issuer agrees promptly to pay such compensation and to reimburse the Fiscal Agent for the reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by it or its agents in connection with its services hereunder. The Issuer also agrees to indemnify the Fiscal Agent for, and to hold it harmless against, any loss, liability or expense, including, without limitation, damages, fines, suits, actions, demands, penalties, costs, out-of-pocket or incidental expenses, legal fees and expenses, and the allocated costs and expenses of in-house counsel, incurred without negligence or willful misconduct, arising out of or in connection with its acting as Fiscal Agent or in any other capacity hereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Issuer under this Section 9(a) shall survive payment of all the Securities or the resignation or removal of the Fiscal Agent.
(b) Agency. In acting under this Agreement and in connection with the Securities, the Fiscal Agent is acting solely as agent of the Issuer and does not assume any responsibility for the correctness of the recitals in the Securities (except for the correctness of the statement in its certificate of authentication on the Securities) or any obligation or relationship of agency or trust, for or with any of the owners or holders of the Securities, except that all funds held by the Fiscal Agent for the payment of principal of and any interest on the Securities shall be held in trust for such owners or holders, as the case may be, as set forth herein and in the
Securities; provided, however, that monies held in respect of the Securities remaining unclaimed at the end of two years after the principal of or any interest on the Securities shall have become due and payable (whether at maturity or otherwise) and monies sufficient therefor shall have been duly made available for payment shall, together with any interest made available for payment thereon, be repaid to the Issuer upon Order. Upon such repayment, the aforesaid trust with respect to the Securities shall terminate and all liability of the Fiscal Agent and Paying Agents with respect to such funds shall thereupon cease. with respect to the Securities shall terminate and all liability of the Fiscal Agent and Paying Agents with respect to such funds shall thereupon cease.
(c) Advice of Counsel. The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof may consult with their respective counsel or other counsel satisfactory to them, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by them hereunder in good faith and without negligence and in accordance with such opinion.
(d) Reliance. The Fiscal Agent and any Paying Agent or Transfer Agent appointed by the Issuer pursuant to Section 2 hereof each shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Security, notice, direction, consent, certificate, affidavit, statement, or other paper or document believed by it, in good faith and without negligence, to be genuine and to have been passed or signed by the proper party or parties.
(e) Interest in Securities, etc. The Fiscal Agent, any
authenticating agent, and any Paying Agent or Transfer Agent appointed by the
Issuer pursuant to Section 2 hereof and their respective officers, directors and
employees may become the owners of, or acquire any interest in, any Securities,
with the same rights that they would have if they were not the Fiscal Agent,
such authenticating agent, such other Paying Agent or Transfer Agent or such
person, and may engage or be interested in any financial or other transaction
with the Issuer, and may act on, or as depository, trustee or agent for, any
committee or body of holders of Securities or other obligations of the Issuer,
as freely as if they were not the Fiscal Agent, such authenticating agent, such
other Paying Agent or Transfer Agent or such person. The provisions of this
Section 8(e) shall extend to affiliates of the Fiscal Agent, such authenticating
agent, any Paying Agent or any Transfer Agent.
(f) Certifications. Whenever in the administration of this Agreement the Fiscal Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith or negligence on its part, rely upon a certificate signed by any Authorized Officer of the Issuer and delivered to the Fiscal Agent.
(g) No Implied Obligations. The duties and obligations of the Fiscal Agent shall be determined solely by the express provisions of this Agreement, and the Fiscal Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Fiscal Agent. In no event shall the Fiscal Agent be liable for any lost profits, lost savings or other special, exemplary, consequential or incidental damages.
(h) No Liability. The Fiscal Agent shall not be liable for any interest on any funds held by the Fiscal Agent and shall never be required to use, advance or risk its own funds or otherwise incur financial liability in the performance of its duties hereunder.
(i) No Inquiry. The Fiscal Agent shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements of the Securities or other documents on the part of the Issuer or as to the existence of any event of default thereunder.
(j) Agents. The Fiscal Agent may execute any of its trusts or powers or perform any duties under this Agreement either directly or by or through agents or attorneys, may in all cases pay such reasonable compensation as it deems proper to all such agents and attorneys reasonably employed or retained by it, and shall not be responsible for any misconduct or negligence of any agent or attorney appointed with due care by it.
9. Resignation and Appointment of Successor.
(a) Fiscal Agent and Paying Agent. The Issuer agrees, for the benefit of the holders from time to time of the Securities, that there shall at all times be a Fiscal Agent hereunder which shall be a bank or trust company organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, in good standing and having an established place of business or agency in the Borough of Manhattan, The City of New York, and authorized under such laws to exercise corporate trust powers until all the Securities authenticated and delivered hereunder (i) shall have been delivered to the Fiscal Agent for cancellation or (ii) become due and payable and monies sufficient to pay the principal of and any interest on the Securities shall have been made available for payment and either paid or returned to the Issuer as provided herein and in such Securities.
(b) Resignation. The Fiscal Agent may at any time resign by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective, provided that such date shall not be less than three (3) months from the date on which such notice is given, unless the Issuer agrees to accept shorter notice. The Fiscal Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed on behalf of the Issuer and specifying such removal and the date when it shall become effective. Notwithstanding the dates of effectiveness of resignation or removal, as the case may be, to be specified in accordance with the preceding sentences, such resignation or removal shall take effect only upon the appointment by the Issuer of a successor Fiscal Agent (which, to qualify as such, shall be a bank or trust company organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, in good standing and having and acting through an established place of business or agency in the Borough of Manhattan, The City of New York, authorized under such laws to exercise corporate trust powers and having a combined capital and surplus in excess of U.S. $20,000,000) and the acceptance of such appointment by such successor Fiscal Agent. Upon its resignation or removal, the Fiscal Agent shall be entitled to payment by the Issuer pursuant to Section 8 hereof compensation for services rendered and to reimbursement of reasonable out-of-pocket expenses incurred hereunder.
(c) Successors. In case at any time the Fiscal Agent or any Paying Agent in respect of the Securities (if such Paying Agent is the only Paying Agent located in a place where, by the terms of the Securities or this Agreement, the Issuer is required to maintain a Paying Agent) shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they severally mature, or if a receiver of it or of any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of the Federal Bankruptcy Act or under the provisions of any similar legislation, or if a receiver of it or its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose or rehabilitation, conservation or liquidation, a successor Fiscal Agent or Paying Agent, as the case may be, qualified as aforesaid, shall be appointed by the Issuer by an instrument in writing, filed with the successor Fiscal Agent or Paying Agent, as the case may be, and the predecessor Fiscal Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of a successor Fiscal Agent or Paying Agent, as the case may be, and acceptance by such successor of such appointment, the Fiscal Agent or Paying Agent, as the case may be, so succeeded shall cease to be Fiscal Agent or Paying Agent, as the case may be, hereunder. If no successor Fiscal Agent or other Paying Agent, as the case may be, shall have been so appointed by the Issuer and shall have accepted appointment as hereinafter provided, and, in the case of such other Paying Agent, if such other Paying Agent is the only Paying Agent located in a place where, by the terms of the Securities of this Agreement, the Issuer is required to maintain a Paying Agent, then any holder of a Security who has been a bona fide holder of a Security for at least six months, on behalf of such holder and all others similarly situated, or the Fiscal Agent may petition any court of competent jurisdiction for the appointment of a successor agent. The Issuer shall give prompt written notice to each other Paying Agent of the appointment of a successor Fiscal Agent.
(d) Acknowledgment. Any successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Fiscal Agent hereunder, and such predecessor, upon payment of its compensation, and reimbursement of its disbursements then unpaid, shall thereupon become obligated to transfer, delivery and pay over, and such successor Fiscal Agent shall be entitled to receive, all monies, securities, books, records or other property on deposit with or held by such predecessor as Fiscal Agent hereunder.
(e) Merger, Consolidation, etc. Any corporation into which the Fiscal Agent hereunder may be merged, or any corporation resulting from any merger or consolidation to which the Fiscal Agent shall be a party, or any corporation to which the Fiscal Agent shall sell or otherwise transfer all or substantially all of the corporate trust business of the Fiscal Agent, provided that it shall be qualified as aforesaid, shall be the successor Fiscal Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
10. Payment of Taxes.
The Issuer will pay all stamp and other duties, if any, which may be imposed by the United States of America or any political subdivision thereof or taxing authority of or in the foregoing with respect to this Agreement or the issuance of the Securities.
11. Amendments.
(a) Approval. With the written consent of the registered owners of not less than a majority in aggregate principal amount of the Securities then Outstanding (or of such other percentage as may be set forth in the text of the Securities with respect to the action being taken), the Issuer and the Fiscal Agent may modify, amend or supplement the terms of the Securities and this Agreement in any way, and the holders of Securities may make, take or give any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement or the Securities to be made, given or taken by holders of Securities; provided, however, that no such action may, without the consent of the holder of each Security affected thereby, (A) change the due date for the payment of the principal of or any installment of interest on any Security, (B) reduce the principal amount of any Security or the interest rate thereon or any premium payable upon the redemption thereof, (C) change the coin or currency in which or the place at which payment with respect to interest or principal in respect of Securities are payable as required by the proviso of the first sentence of the second paragraph of Section 2 hereof, or (D) reduce the proportion of the principal amount of Securities, the consent of the holders of which is necessary to modify, amend or supplement this Agreement or the terms and conditions of the Securities or to make, take or give any request, demand, authorization, direction, notice, consent, waiver or other action provided hereby or thereby to be made, taken or given. The Issuer and the Fiscal Agent may, without the consent of any holder of Securities, amend this Agreement or the Securities for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision thereof, hereof, or in any manner which the Issuer and the Fiscal Agent may determine that shall not be inconsistent with the Securities and shall not adversely affect the interest of any holder of Securities.
It shall not be necessary for the consent of the holders of Securities to approve the particular form of any proposed modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action, but it shall be sufficient if such consent shall approve the substance thereof.
(b) Binding Nature of Amendments, Notice, Notations, etc. Any instrument given by or on behalf of any holder of a Security in connection with any consent to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action will be irrevocable once given and will be conclusive and binding on all subsequent holders of such Security or any Security issued directly or indirectly in exchange or substitution therefore or in lieu thereof. Any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action will be conclusive and binding on all holders of Securities, whether or not they have given such consent, and whether or not notation of such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action is made upon the Securities. Notice of any modification or amendment of, supplement to, or request, demand, authorization, direction, notice, consent, waiver or other action with respect to the Securities or this Agreement (other than for purposes
of curing any ambiguity or of curing, correcting or supplementing any defective provision hereof or thereof) shall be given to each holder of Securities affected thereby, in all cases as provided in the Securities.
Securities authenticated and delivered after the effectiveness of any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may bear a notation in the form approved by the Fiscal Agent and the Issuer as to any matter provided for in such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action. New Securities modified to conform, in the opinion of the Fiscal Agent and the Issuer, to any such modification, amendment, supplement, request, demand, authorization, direction, notice, consent, waiver or other action may be prepared by the Issuer, authenticated by the Fiscal Agent (or any authenticating agent appointed pursuant to Section 3 hereof) and delivered in exchange for Outstanding Securities.
(c) "Outstanding" Defined. For purposes of the provisions of this Agreement and the Securities, any Security authenticated and delivered pursuant to this Agreement shall, as of any date of determination, be deemed to be "Outstanding", except:
(i) Securities theretofore canceled by the Fiscal Agent or delivered to the Fiscal Agent for cancellation or held by the Fiscal Agent for reissuance but not reissued by the Fiscal Agent;
(ii) Securities which have become due and payable at maturity or otherwise and with respect to which monies sufficient to pay the principal thereof and any interest thereon shall have been made available to the Fiscal Agent; or
(iii) Securities which have been defeased pursuant to Section 14(b) hereof; or
(iv) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to this Agreement;
provided, however, that in determining whether the holders of the requisite principal amount of Outstanding Securities have consented to any request, demand, authorization, direction, notice, consent, waiver, amendment, modification or supplement hereunder, Securities owned directly or indirectly by the Issuer or any affiliate of the Issuer shall be disregarded and deemed not to be Outstanding.
12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
13. Notices.
All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing and if sent to the Fiscal Agent shall be delivered, transmitted by facsimile, telexed or telegraphed to it at 600
Travis Street, Suite 1150, Houston, Texas 77002, Attention: Global Trust Services, facsimile no. (713) 216-5476 or if sent to the Issuer shall be delivered, transmitted by facsimile, telexed or telegraphed to it at 1400 Smith Street, Houston, Texas 77002, Attention: Vice President, Finance and Accounting, facsimile no. (713) 646-4761. The foregoing addresses for notices or communications may be changed by written notice given by the addressee to each party hereto, and the addressee's address shall be deemed changed for all purposes from and after the giving of such notice.
If the Fiscal Agent shall receive any notice or demand addressed to the Issuer by the holder of a Security, the Fiscal Agent shall promptly forward such notice or demand to the Issuer.
14. Defeasance (Legal and Covenant).
(a) Issuer's Option to Effect Defeasance or Covenant Defeasance. The Issuer may at its option, by Order of the Issuer delivered to the Fiscal Agent, elect to have either Section 14(b) or Section 14(c) applied to the Outstanding Securities upon compliance with the conditions set forth below in this Section 14.
(b) Defeasance and Discharge. Upon exercise by the Issuer
of the option provided in Section 14(a) applicable to this Section 14(b), the
Issuer shall be deemed to have been discharged from its obligations with respect
to the Outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Defeasance"). For this purpose, such Defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities and to have satisfied all
its other obligations under such Securities and this Agreement insofar as the
Securities are concerned (and the Issuer and the Fiscal Agent shall execute
proper instruments acknowledging the same), except for the following, which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of holders of the Securities to receive, solely from the trust fund described in
Section 14(d) and as more fully set forth in such Section, payments in respect
of the principal of and any interest on the Securities when such payments are
due, (ii) the Issuer's obligations with respect to the Securities under Sections
1(d), 2, 4(a), 5, 6, 7(a), 7(b) and 9 of this Agreement and paragraphs 3, 4(a),
9 (insofar as it relates to Sections 7(a) and 7(b) of this Agreement), 10 and 11
of the Securities and (iii) this Section 14. Subject to compliance with this
Section 14, the Issuer may exercise its option under this Section 14(b)
notwithstanding the prior exercise of its option under Section 14(c).
(c) Covenant Defeasance. Upon the Issuer's exercise of
the option provided in Section 14(a) applicable to this Section 14(c), the
Issuer shall be released from its obligations under paragraphs 6(c), 7, and
8(a)(iii) of the Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of the Issuer's obligations shall be unaffected thereby.
(d) Conditions to Defeasance and Covenant Defeasance. The
following shall be the conditions to application of either Section 14(b) or
Section 14(c) to the then Outstanding Securities:
(i) The Issuer shall irrevocably have deposited or caused to be deposited with a trustee, who may be the Fiscal Agent and who shall agree to comply with the provisions of this Section 14 applicable to it (the "Defeasance Trustee"), as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities, (A) money in an amount, or (B) U.S. Government Obligations and/or Eligible Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certifi- cation thereof delivered to the Defeasance Trustee, to pay and discharge, and which shall be applied by the Defeasance Trustee to pay and discharge, the principal of and each installment of interest on the Securities not later than one day before the stated maturity of such principal or install- ment of interest in accordance with the terms of this Agree- ment and of the Securities. For this purpose; "U.S. Government Obligations" means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit are pledged or (y) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Act) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt; and "Eligible Obligations" means interest bearing obligations as a result of the deposit of which the Securities are rated in the highest generic long-term debt rating category assigned to legally defeased debt by one or more nationally recognized rating agencies.
(ii) In the case of an election under Section 14(b), the Issuer shall have delivered to the Defeasance Trustee an opinion of counsel stating that (x) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (y) since the date of this Agreement there has been a change in the applicable U.S. Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the Outstanding Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. Federal income tax
on the same amount, in the same manner and at the same times as would have been the case if such deposit defeasance and discharge had not occurred.
(iii) In the case of an election under Section 14(c), the Issuer shall have delivered to the Defeasance Trustee an opinion of counsel to the effect that the holders of the Outstanding Securities will not recognize gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred.
(iv) No event of default under paragraph 6 of the Securities or
event which with notice or lapse of time or both would become
such an event of default shall have occurred and be continuing
on the date of such deposit or, insofar as paragraphs 6(d) and
(e) of the Securities are concerned, at any time during the
period ending on the 121st day after the date of such deposit
(it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(v) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Issuer is a party or by which it is bound.
(vi) The Issuer shall have delivered to the Fiscal Agent and the Defeasance Trustee an Officers' Certificate and an opinion of counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 14(b) or the covenant defeasance under Section 14(c) (as the case may be) have been complied with.
(vii) Such defeasance or covenant defeasance shall not result in the trust arising from such deposit constituting an investment company as defined in the Investment Company Act of 1940, as amended, or such trust shall be qualified under such act or exempt from regulation thereunder.
(e) Deposit in Trust: Miscellaneous. All money, U.S. Government Obligations and Eligible Obligations (including the proceeds thereof) deposited with the Defeasance Trustee pursuant to Section 14(d) in respect of the Securities shall be held in trust and applied by the Defeasance Trustee, in accordance with the provisions of the Securities and this Agreement, to the payment, either directly or through any Paying Agent as the Defeasance Trustee may determine, to the holders of the Securities, of all sums due and to become due thereon in respect of principal and any interest, but such money need not be segregated from other funds except to the extent required by law. Any money deposited with the Defeasance Trustee for the payment of the principal of or any interest on any Security and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Issuer upon Order, and the holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Defeasance Trustee with respect to such trust money shall thereupon cease.
The Issuer shall pay and indemnify the Defeasance Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations or Eligible Obligations deposited pursuant to Section 14(d) or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the holders of the Outstanding Securities.
Anything in this Section 14 to the contrary notwithstanding, the Defeasance Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money, U.S. Government Obligations or Eligible Obligations held by it as provided in Section 14(d) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Defeasance Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance.
(f) Reinstatement. If the Defeasance Trustee is unable to
apply any money in accordance with Section 14(b) or 14(c) by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's obligations under this
Agreement and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Section 14 until such time as the
Defeasance Trustee is permitted to apply all such money in accordance with
Section 14(b) or 14(c); provided, however, that if the Issuer makes any payment
of principal of or interest on any Security following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the holders of such
Securities to receive such payment from the money held by the Defeasance
Trustee.
15. Headings.
The section headings herein are for convenience only and shall not affect the construction hereof.
16. Counterparts.
This Agreement may be executed in one or more counterparts, and by each party separately on a separate counterpart, and each such counterpart when executed and delivered shall be deemed to be an original. Such counterparts shall together constitute one and the same instrument.
17. Successors and Assigns.
All covenants and agreements in this Agreement by the Issuer shall bind its respective successors and assigns, whether so expressed or not.
18. Separability Clause.
In case any provision in this Agreement or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
NORTHERN NATURAL GAS COMPANY
By: /s/ George P. Fastuca
---------------------
Name: George P. Fastuca
Title: Vice President, Finance and
Accounting
|
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Fiscal Agent
By: /s/ Ronda L. Parman
-------------------
Authorized Signatory
|
EXHIBIT A
FORM OF SECURITY
[Form of Face
of Security]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH THE FISCAL AGENCY AGREEMENT, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE FISCAL AGENT. THE EXEMPTION PROVIDED BY RULE 144A UNDER THE ACT MAY BE AVAILABLE TO PERMIT SALE OR TRANSFER OF THIS SECURITY TO QUALIFIED INSTITUTIONAL BUYERS (WITHIN THE MEANING OF RULE 144A) WITHOUT REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT (A) SUCH
HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY (WITHOUT CONSENT OF THE
ISSUER) PRIOR TO TWO YEARS FROM THE LATER OF MAY 27, 1999 OR THE DATE ON WHICH
THIS SECURITY WAS LAST HELD BY AN AFFILIATE OF THE ISSUER OTHER THAN (I) TO A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (II) TO
A NON-U.S. PERSON IN A TRANSACTION COMPLYING WITH REGULATION S UNDER THE ACT,
(III) FOLLOWING ONE YEAR FROM SUCH TIME, IN A TRANSACTION COMPLYING WITH RULE
144 UNDER THE ACT, OR (IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT (IT BEING UNDERSTOOD THAT AS A CONDITION TO THE
REGISTRATION OF TRANSFER OF THIS SECURITY, THE ISSUER OR THE FISCAL AGENT MAY,
IN CIRCUMSTANCES THEY BELIEVE APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE
WITH ANY SUCH EXEMPTION) AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 55 WATER STREET, 49TH FLOOR, NEW YORK, NEW YORK 10041-0099, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DEPOSITORY TRUST COMPANY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE FOREGOING LEGENDS MAY BE REMOVED FROM THE SECURITIES ON THE
CONDITIONS SPECIFIED IN THE FISCAL AGENCY AGREEMENT.
No. RA-.......... [Denomination]
NORTHERN NATURAL GAS COMPANY
7.00% Senior Notes due June 1, 2011
NORTHERN NATURAL GAS COMPANY, a corporation duly organized under the laws of the State of Delaware (herein called the "Issuer"), for value received, hereby promises to pay to __________________________ or registered assigns, the principal sum of ________________ on ___________________ and to pay interest thereon from May 27, 1999, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on June 1 and December 1 in each year, commencing December 1, 1999 (each an "Interest Payment Date"), at the rate of 7.00% per annum, until the principal hereof is paid or made available for payment and (to the extent that the payment of such interest shall be legally enforceable) at the rate per annum equal to the above rate plus 1% per annum on any overdue principal and on any overdue installment of interest. Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Fiscal Agency Agreement hereinafter referred to, be paid to the person (the "registered holder") in whose name this Security (or one or more predecessor Securities) is registered at the close of business on May 15 or November 15 (whether or not a business day), as the case may be (each a "Regular Record Date"), next preceding such Interest Payment Date. Any such interest no so punctually paid or duly provided for will forthwith cease to be payable to the registered holder on such Regular Record Date and shall be paid to the person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on a special record date for the payment of such interest to be fixed by the Issuer, notice whereof shall be given to registered holders of Securities not less than 10 days prior to such special record date.
Principal of this Security shall be payable against surrender hereof at the corporate trust office or office of an agent of the Fiscal Agent hereinafter referred to or at such other offices or agencies as the Issuer may designate and at the offices of such other Paying Agents as the Issuer shall have appointed pursuant to the Fiscal Agency Agreement. Payments of principal shall be made against surrender of this Security, and payments of interest on this Security shall be made, in accordance with the foregoing and subject to applicable laws and regulations, by check mailed on or before the due date for such payment to the person entitled thereto at such person's address appearing on the aforementioned register or, in the case of payments of principal to such other address as the registered holder may specify upon such surrender; provided however, that any payments shall be made, in the case of a registered holder of at least $1,000,000 aggregate principal amount of Securities, by transfer to an account maintained by the payee with a bank if such registered holder so elects by giving notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date of the payments to be obtained, of such election and of the account to which payments are to be made. The Issuer covenants that until this Security has been delivered to the Fiscal Agent for cancellation, or monies sufficient to pay the principal of and interest on this Security have been made available for payment and either paid or returned to the Issuer as provided herein, it will at all times maintain
an established place of business or agency in the Borough of Manhattan, The City of New York for the payment of the principal of and interest on the Securities as herein provided.
Reference is hereby made to the further provisions of this Security set forth on the following pages hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Fiscal Agent by manual signature, this Security shall not be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed and its corporate seal to be affixed hereto.
Date: NORTHERN NATURAL GAS COMPANY
By:_________________________________
George P. Fastuca
Vice President, Finance and
Accounting
[Corporate Seal]
|
Attest:
This is one of the Securities referred to in the within-mentioned Fiscal Agency Agreement.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION,
as Fiscal Agent
By:_________________________________
Date of Authentication: _________________
[Form of reverse of Security]
1. This Security is one of a duly authorized issue of securities of the Issuer designated as its 7.00% Senior Notes due June 1, 2011 (herein called the "Securities"), limited in aggregate principal amount to $250,000,000, issued and to be issued in accordance with a Fiscal Agency Agreement, dated as of May 24, 1999 (herein called the "Fiscal Agency Agreement"), between the Issuer and Chase Bank of Texas, National Association, as Fiscal Agent (herein called the "Fiscal Agent", which term includes any successor fiscal agent under the Fiscal Agency Agreement), copies of which Fiscal Agency Agreement are on file and available for inspection at the corporate trust office of the Fiscal Agent which at the date hereof is at 600 Travis Street, Suite 1150, Houston, Texas 77002.
The Securities are unsecured direct, unconditional and general obligations of the Issuer and will rank equally with all other unsecured and unsubordinated indebtedness of the Issuer:
2. The Securities are issuable only in fully registered form, without coupons, in minimum denominations of U.S. $100,000 and integral multiples of $1,000 above that amount.
3. The Issuer shall maintain in the Borough of Manhattan, The City of New York, an established place of business or agency where Securities may be surrendered for registration of transfer or exchange. The Issuer has initially appointed the Fiscal Agent acting through its corporate trust office in Houston, Texas and at its agent's office in the Borough of Manhattan, The City of New York, as their agent for such purpose and the Issuer has agreed to cause to be kept at such offices a register in which, subject to such reasonable regulations as it may prescribe, the Issuer will provide for the registration of Securities and of transfers of Securities. The Issuer reserves the right to vary or terminate the appointment of the Fiscal Agent as security registrar or of any Transfer Agent or to appoint additional or other registrars or Transfer Agents or to approve any change in the office through which any security registrar or any Transfer Agent acts, provided that there will at all times be a security registrar or agent thereof in the Borough of Manhattan, The City of New York. Registered holders of the Securities will receive notice of any such change.
The transfer of a Security is registrable on the aforementioned register upon surrender of such Security at the corporate trust office of the Fiscal Agent or the office of the agent of the Fiscal Agent or any Transfer Agent duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Fiscal Agent duly executed by, the registered holder thereof or such holder's attorney duly authorized in writing. Upon such surrender of this Security for registration of transfer, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities, dated the date of authentication thereof, of any authorized denominations and of a like aggregate principal amount.
At the option of the registered holder upon request confirmed in writing, Securities may be exchanged for Securities of any authorized denominations and of a like tenor, form and aggregate principal amount upon surrender of the Securities to be exchanged at the office of any Transfer Agent or at the corporate trust office of the Fiscal Agent or agent thereof. Whenever
any Securities are so surrendered for exchange, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver, the Securities which the registered holder making the exchange is entitled to receive. Any registration of transfer or exchange will be effected upon the Transfer Agent or the Fiscal Agent, as the case may be, being satisfied with the documents of title and identity of the person making the request and subject to such reasonable regulations as the Issuer may from time to time agree with the Transfer Agent and the Fiscal Agent.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations, of the Issuer evidencing the same debt, and entitled to the same benefits, as the Securities surrendered upon such registration of transfer or exchange. No service charge shall be made for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent may treat the person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, the Fiscal Agent nor any such agent shall be affected by notice to the contrary.
4. (a) The Issuer shall pay to the Fiscal Agent at its principal office in Houston, Texas on or prior to each Interest Payment Date and the maturity date of the Securities, in such amounts sufficient (with any amounts then held by the Fiscal Agent and available for the purpose) to pay the interest on and the principal of the Securities due and payable on such Interest Payment Date or maturity date, as the case may be in funds available on such date. The Fiscal Agent shall apply the amounts so paid to it to the payment of such interest and principal in accordance with the terms of the Securities. Any monies paid by the Issuer to the Fiscal Agent for the payment of the principal of or interest on any Securities and remaining unclaimed at the end of two years after such principal or interest shall have become due and payable (whether at maturity or otherwise) shall then be repaid to the Issuer upon its written request, and upon such repayment all liability of the Fiscal Agent with respect thereto shall cease, without, however, limiting in any way any obligation the Issuer may have to pay the principal of and interest on this Security as the same shall become due.
(b) In any case where the due date for the payment of the principal of or interest on any Security shall be at any place of payment a day on which banking instructions are authorized or obligated by law to close, then payment of principal or interest need not be made on such date at such place but may be made on the next succeeding day at such place which is not a day on which banking institutions are authorized or obligated by law to close, with the same force and effect as if made on the date for such payment and no interest shall accrue for the period after such date.
5. The Issue shall pay all stamp and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority of or in the foregoing with respect to the Fiscal Agency Agreement or the issuance of this Security. Except as otherwise provided in this Security, the Issuer shall not be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.
6. In the event of:
(i) default in the payment of any interest on any Security for a period of 30 days after the date when due; or
(ii) default in the payment of the principal of any Security when due (whether at maturity or otherwise); or
(iii) default in the performance or breach of any other covenant or agreement of the Issuer contained in the Securities or in the Fiscal Agency Agreement for a period of 60 days after the date on which written notice of such default requiring the Issuer to remedy the same and stating that such notice is a "Notice of Default" shall first have been given to the Issuer and the Fiscal Agent by the holders of at least 25% in principal amount of the Securities at the time Outstanding (as defined in the Fiscal Agency Agreement); or
(iv) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Issuer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or of any substantial part of the property of the Issuer, or ordering the winding up or liquidation of the affairs of the Issuer, and any such decree or order for relief or any such other decree or order shall continue unstayed and in effect for a period of 60 consecutive days; or
(v) commencement by the Issuer of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Issuer to the entry of a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer, or the filing by the Issuer of a petition or answer or consent seeking reorganization or relief under any such applicable Federal or State law, or the consent by the Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiving, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or of any substantial part of its property, or the making by the Issuer of an assignment for the benefit of creditors, or the taking of action by the Issuer in furtherance of any action;
the registered holder of this Security may, at such holder's option, declare the principal of this Security and the interest accrued hereon to be due and payable immediately by written notice to the Issuer and the Fiscal Agent at its corporate trust office, and unless all such defaults shall have been cured by the Issuer prior to receipt of such written notice, the principal of the Security and the interest accrued thereon shall become and be immediately due and payable. For purposes of the Securities, "Subsidiary" of the Issuer means a corporation all of the outstanding voting stock of which is owned, directly or indirectly, by the Issuer or by one or more other Subsidiaries. For the purposes
of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
7. So long as any of the Securities are Outstanding, the Issuer will not pledge, mortgage or hypothecate, or permit to exist, and will not cause, suffer or permit any Subsidiary of it to pledge, mortgage or hypothecate, or permit to exist, except in favor of the Issuer or any Subsidiary of it, any mortgage, pledge or other lien upon, any Principal Property (as hereinafter defined) at any time owned by it, to secure any Indebtedness (as hereinafter defined) of it, without making effective provision whereby the Outstanding Securities shall be equally and ratably secured with any and all such Indebtedness of the Company and with any other Indebtedness of it similarly entitled to be equally and ratably secured; provided, however, that this restriction shall not apply to or prevent the creation or existence of:
(i) undetermined or inchoate liens and charges incidental to construction, maintenance, development or operation;
(ii) any liens of taxes and assessments for the then current year;
(iii) any liens of taxes and assessments not at the time delinquent;
(iv) any liens of specified taxes and assessments which are delinquent but the validity of which is being contested in good faith at the time by the Issuer or any Subsidiary of it;
(v) any liens reserved in leases for rent and for compliance with the terms of the lease in the case of leasehold estates;
(vi) any obligations or duties, affecting the property of the Issuer or any Subsidiary of it, to any municipality or public authority with respect to any franchise, grant, license, permit or similar arrangement;
(vii) the liens of any judgments or attachments in an aggregate amount not in excess of $10,000,000, or the lien of any judgment or attachment the execution or enforcement of which has been stayed or which has been appealed and secured, if necessary, by the filing of an appeal bond;
(viii) any mortgage, pledge, lien or encumbrance on any property held or used by the Issuer or any Subsidiary of it in connection with the exploration for, development of or production of oil, gas, natural gas (including liquified gas and storage gas), other hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or other natural resources or synthetic fuels, such properties to include, but not be limited to, the interest of the Issuer or such Subsidiary in any mineral fee interests, oil, gas or other mineral leases, royalty, overriding royalty or net profits interests, production payments and other similar interests, wellhead production
equipment, tanks, field gathering lines, leasehold or field separation and processing facilities, compression facilities and other similar personal property and fixtures;
(ix) any mortgage, pledge, lien or encumbrance on oil, gas, natural gas (including liquefied gas and storage gas), and other hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or other natural resources or synthetic fuels produced or recovered from any property, an interest in which is owned or leased by the issuer or any Subsidiary of it;
(x) mortgages, pledges, liens or encumbrances upon any property heretofore or hereafter acquired, created at the time of acquisition or within 365 days thereafter to secure all or a portion of the purchase price thereof, or existing thereon at the date of acquisition, whether or not assumed by the Issuer or any Subsidiary of it, provided that every such mortgage, pledge, lien or encumbrance shall apply only to the property so acquired and fixed improvements thereon;
(xi) any extension, renewal or refunding, in whole or in part, of any mortgage, pledge, lien or encumbrance permitted by Section (x) above, if limited to the same property or any portion thereof subject to, and securing not more than the amount secured by, the mortgage, pledge, lien or encumbrance extended, renewed or refunded;
(xii) mortgages, pledges, liens or encumbrances upon any property heretofore or hereafter acquired by any corporation that is or becomes such a Subsidiary of the Issuer after the date of the Fiscal Agency Agreement ("Acquired Entity"), provided that every such mortgage, pledge, lien or encumbrance (1) shall either (a) exist prior to the time the Acquired Entity becomes such a Subsidiary or (b) be created at the time the Acquired Entity becomes such a Subsidiary or within 365 days thereafter to secure all or a portion of the acquisition price thereof and (2) shall only apply to those properties owned by the Acquired Entity at the time it becomes such a Subsidiary or thereafter acquired by it from sources other than the Issuer or any other Subsidiary of it;
(xiii) the pledge of current assets, in the ordinary course of business, to secure current liabilities;
(xiv) mechanics' or materialmen's liens, any liens or charges arising by reason of pledges or deposits to secure payment of workmen's compensation or other insurance, good faith deposits in connection with tenders, leases of real estate, bids or contracts (other than contracts for the payment of money), deposits to secure duties or public or statutory obligations, deposits to secure, or in lieu of, surety, stay or appeal bonds, and deposits as security for the payment of taxes or assessments or similar charges;
(xv) any lien arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulation for any purpose at any time in connection with the financing of the acquisition or construction of property to be used in the business of the Issuer or
any Subsidiary of it or as required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege or license, or to enable the Issuer or any such Subsidiary to maintain self-insurance or to participate in any funds established to cover any insurance risks or in connection with workmen's compensation, unemployment insurance, old age pensions or other social security, or to share in the privileges or benefits required for companies participating in such arrangements;
(xvi) any lien to secure Indebtedness of the Issuer other than Funded Debt (as hereinafter defined);
(xvii) any mortgage, pledge, lien or encumbrance of or upon any office equipment, data processing equipment (including, without limitation, computer and computer peripheral equipment), or transportation equipment (including without limitation, motor vehicles, tractors, trailers, marine vessels, barges, towboats, rolling stock and aircraft);
(xviii) any mortgage, pledge, lien or encumbrance created or assumed by the Issuer or any Subsidiary of it in connection with the issuance of debt securities the interest on which is excludable from gross income of the holder of such security pursuant to the Internal Revenue Code of 1986, as amended, for the purpose of financing, in whole or in part, the acquisition or construction of property to be used by the Issuer or any such Subsidiary; or
(xix) the pledge or assignment of accounts receivable, or the pledge or assignment of conditional sales contracts or chattel mortgages and evidences of indebtedness secured thereby, received in connection with the sale by the Issuer or any Subsidiary of it of goods or merchandise to customers of the Issuer or any Subsidiary.
In case the Issuer or any Subsidiary of it shall propose to pledge, mortgage or hypothecate any Principal Property at any time owned by it to secure any of its Indebtedness, other than as permitted by subdivisions (i) to (xix), inclusive, of this Paragraph 7, the Issuer will prior thereto give written notice thereof to the Fiscal Agent, and the Issuer will, or will cause such Subsidiary to, prior to or simultaneously with such pledge, mortgage or hypothecation, effectively secure all the Securities equally and ratably with such Indebtedness.
Notwithstanding the foregoing provisions of this Paragraph 7, the Issuer or any Subsidiary of it may issue, assume or guarantee Indebtedness secured by a mortgage which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other Indebtedness of the Issuer or a Subsidiary of it secured by a mortgage which (if originally issued, assumed or guaranteed at such time) would otherwise be subject to the foregoing restrictions (not including Indebtedness permitted to be secured under clauses (i) through (xix) above), does not at the time exceed 10% of the Consolidated Net Tangible Assets of the Issuer as shown on its audited consolidated financial statements as of the end of the fiscal year preceding the date of determination.
For purposes of the Securities,
"Consolidated Net Tangible Assets" of any corporation means total assets less (a) total current liabilities (excluding indebtedness due within 365 days) and (b) goodwill, patents and trademarks, all as reflected in such corporation's audited consolidated balance sheet preceding the date of a determination under the immediately preceding paragraph of this Paragraph 7.
"Funded Debt" as applied to any corporation means all Indebtedness incurred, created, assumed or guaranteed by such corporation, or upon which it customarily pays interest charges, which matures, or is renewable by such corporation to a date, more than one year after the date as of which Funded Debt is being determined; provided, however, that the term "Funded Debt" shall not include (i) Indebtedness incurred in the ordinary course of business representing borrowings, regardless of when payable, of such corporation from time to time against, but not in excess of the face amount of, its installment accounts receivable for the sale of appliances and equipment sold in the regular course of business or (ii) advances for construction and security deposits received by such corporation in the ordinary course of business.
"Indebtedness" as applied to any corporation, shall mean bonds, debentures, notes and other instruments representing obligations created or assumed by any such corporation for the repayment of money borrowed (other than unamortized debt discount or premium). All Indebtedness secured by a lien upon property owned by any corporation and upon which Indebtedness any such corporation customarily pays interest, although any such corporation has not assumed or become liable for the payment of such Indebtedness, shall for all purposes of the Securities be deemed to be Indebtedness of any such corporation. All Indebtedness for money borrowed incurred by other persons which is directly guaranteed as to payment of principal by any corporation shall for all purposes of the Securities be deemed to be Indebtedness of such corporation, but no other contingent obligation of such corporation in respect of Indebtedness incurred by other persons shall for any purpose be deemed Indebtedness of such corporation. Indebtedness of any corporation shall not include: (i) amounts which are payable only out of all or a portion of the oil, gas, natural gas, helium, coal, metals, minerals, steam, timber, hydrocarbons, or geothermal or other natural resources produced, derived, or extracted from properties owned or developed by such corporation; (ii) any amount representing capitalized lease obligations; (iii) any indebtedness incurred to finance oil, gas, natural gas, helium, coal, metal, mineral, steam, timber, hydrocarbons, or geothermal or other natural resources or synthetic fuel exploration or development, payable with respect to principal and interest, solely out of the proceeds of oil, gas, natural gas, helium, coal, metals, minerals, steam, timber, hydrocarbons, or geothermal or other natural resources or synthetic fuel to be produced, sold, and/or delivered by any such corporation; (iv) indirect guarantees or other contingent obligations in connection with the Indebtedness of others, including agreements, contingent or otherwise, with such other persons or with third persons with respect to, or to permit or ensure the payment of, obligations of such other persons, including, without limitation, agreements to purchase or repurchase obligations of such other persons, agreements to advance or supply funds to or to invest in such other persons, or agreements to pay for property, products, or services of such other persons (whether or not conferred, delivered or rendered), and any demand charge, throughput, take-or-pay, keep-well, make-whole, cash deficiency, maintenance of working capital or earnings or similar agreements; and (v) any guarantees with respect to lease or other similar periodic payments to be made by other persons.
"Principal Property" of the Issuer means any oil or gas pipeline, gas processing plant or chemical plant located in the United States, except any such pipeline, facility, station or plant that in the opinion of the Board of Directors of the Issuer is not of material importance to the total business conducted by the Issuer or its Subsidiaries. "Principal Property" shall not include any oil or gas property, the production or any proceeds of production
from an oil or gas producing property or the production or any proceeds of production of gas processing plants or oil or gas or petroleum products in any pipeline. "Principal Property" shall also include any gas storage facility or gas compressor station located in the United States, except any such facility or station that in the opinion of the Board of Directors of the Issuer is not of material importance to the total business conducted by the Issuer or its Subsidiaries, and "Principal Property" shall not include any liquefied natural gas plants and related storage facilities or any natural gas liquids processing plants.
8. (a) The Issuer shall not consolidate with or merge into any other person or convey, transfer or lease its properties and assets substantially as an entirety to any person, and the Issuer shall not permit any person to consolidate with or merge into the Issuer or convey, transfer or lease its properties and assets substantially as an entirety to the Issuer unless:
(i) in case the Issuer shall consolidate with or merge into another person or convey, transfer or lease its properties and assets substantially as an entirety to any person, the person formed by such consolidation or into which the Issuer is merged or the person which acquires by conveyance or transfer, or which leases, the properties and assets of the Issuer substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia (the "Successor Person") and shall expressly assume, by amendment to the Fiscal Agency Agreement signed by the Issuer and such Successor Person and delivered to the Fiscal Agent, the due and punctual payment of the principal of an interest on all the Securities and the performance or observance of every covenant hereof and of the Fiscal Agency Agreement on the part of the Issuer to be performed or observed;
(ii) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or any Subsidiary of it as a result of such transaction as having been incurred by the Issuer or any such Subsidiary at the time of such transaction, no event of default (as set forth in Paragraph 6), and no event which, with notice or lapse of time or both, would become such an event of default, shall have happened and be continuing;
(iii) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or any Subsidiary of it would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by Paragraph 7 hereof, the Issuer, or the Successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all Indebtedness secured by such mortgage, pledge, lien, security interest or other encumbrance; and
(iv) the Issuer has delivered to the Fiscal Agent an Officers' Certificate and a written opinion or opinions of counsel satisfactory to the Fiscal Agent (who may be counsel to the Issuer), stating that such consolidation, merger, conveyance, transfer or lease and such amendment to the Fiscal Agency Agreement comply with this Paragraph 8 and that all conditions precedent herein provided for relating to such transaction have been complied with.
(b) Upon any such consolidation or merger, or any conveyance, transfer or lease of the properties and assets of the Issuer substantially as an entirety in accordance with Paragraph 8(a), the Successor Person shall succeed to, and be substituted for, and may exercise every right and power of the Issuer under the Fiscal Agency Agreement and the Securities with the same effect as if the Successor Person had been named as the Issuer in the Fiscal Agency Agreement and the Securities, and thereafter the Issuer, except in the case of a lease of its properties and assets, shall be released from its liability as obligor on any of the Securities and under the Fiscal Agency Agreement.
9. Section 7 of the Fiscal Agency Agreement, which requires the Issuer
to provide registered holders of Securities or, in the case of clauses (a) and
(b) thereof, designated prospective purchasers of Securities with certain
information and an Officers' Certificate, is hereby incorporated mutatis
mutandis by reference herein.
10. Until the date that is two years from the date of original issuance of the Securities, the Issuer will not, and will not permit any of its "affiliates" (as defined under Rule 144 under the Act or any successor provision thereto) to, resell any Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
11. If any mutilated Security is surrendered to the Fiscal Agent, the Issuer shall execute, and the Fiscal Agent shall authenticate and deliver in exchange therefore, a new Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.
If there be delivered to the Issuer and the Fiscal Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of each of them harmless, then, in the absence of notice to the Issuer or the Fiscal Agent that such Security has been acquired by a bona fide purchaser, the Issuer shall execute, and upon its request the Fiscal Agent shall authenticate and deliver in lieu of any such destroyed, lost or stolen Security a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Upon the issuance of any new Security under this Paragraph, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and the expenses of the Fiscal Agent) connected therewith.
Every new Security issued pursuant to this Paragraph in lieu of any destroyed, lost or stolen Security, shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone.
Any new Security delivered pursuant to this Paragraph shall be so dated that neither gain nor loss in interest shall result from such exchange.
The Provisions of this Paragraph 11 are exclusive and shall preclude (to the extent lawful) all other nights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
12. Section 11 of the Fiscal Agency Agreement, which Section is hereby incorporated mutatis mutandis by reference herein, provides that, with certain exceptions as therein provided and by written consent of a majority in the principal amount of all Outstanding Securities, the Issuer and the Fiscal Agent may modify, amend or supplement the Fiscal Agency Agreement or the terms of the Securities or may give consents or waivers or take other actions with respect thereto. Any such modification, amendment, supplement, consent, waiver, or other action shall be conclusive and binding on the holder of this Security and on all future holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof, whether or not notation thereof is made upon this Security. The Fiscal Agency Agreement and the terms of the Securities may be modified or amended by the Issuer and the Fiscal Agent, without the consent of any holders of Securities, for the purpose of (i) adding to the covenants of the Issuer for the benefit of the holders of Securities, or (ii) surrendering any right or power conferred upon the Issuer, or (iii) securing the Securities pursuant to the requirements of the Securities or otherwise, or (iv) evidencing the succession of another corporation to the Issuer and the assumption by any such successor of the covenants and obligations of the Issuer in the Securities or in the Fiscal Agency Agreement pursuant to Paragraph 8 hereof, or (v) correcting or supplementing any defective provision contained in the Securities or in the Fiscal Agency Agreement, to all of which each holder of any Security, by acceptance thereof, consents.
13. No reference herein to the Fiscal Agency Agreement and no provision of this Security or of the Fiscal Agency Agreement shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
14. This Security is subject to the provisions of Section 14 of the Fiscal Agency Agreement (which are incorporated mutatis mutandis by reference herein) which provide for the defeasance at any time of (i) the entire indebtedness of this Security or (ii) certain covenants and events of default, in each case upon compliance with certain conditions set forth therein.
15. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXHIBIT 10.71
TRUST INDENTURE
dated as of September 10, 1999
between
CORDOVA FUNDING CORPORATION
and
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
Providing For the Issuance From Time to Time of Debt Securities in One or More Series
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; INDENTURE TO CONSTITUTE CONTRACT
SECTION 1.1 Definitions; Construction 2
SECTION 1.2 Indenture to Constitute Contract 2
SECTION 1.3 Compliance Certificates and Opinions 2
SECTION 1.4 Form of Documents Delivered to Trustee 3
SECTION 1.5 Conflict with Trust Indenture Act 4
SECTION 1.6 Agency 4
ARTICLE II
THE SECURITIES
SECTION 2.1 Authorization, Amount, Terms and Issuance of Securities 4
SECTION 2.2 Authorization and Terms of the Initial Securities 5
SECTION 2.3 Additional Securities 6
SECTION 2.4 Record Dates 12
SECTION 2.5 Form; Transfer and Exchange 13
SECTION 2.6 Execution 18
SECTION 2.7 Authentication 19
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Securities 19
SECTION 2.9 Temporary Securities 20
SECTION 2.10 Cancellation and Destruction of Surrendered Securities 20
SECTION 2.11 Disposition of Net Proceeds of Initial Securities 20
ARTICLE III
REDEMPTION OF SECURITIES
SECTION 3.1 Optional Redemption 20
SECTION 3.2 Election or Requirement to Redeem; Notice to Trustee 21
SECTION 3.3 Mandatory Redemption; Redemption at the Option of the
Holders; Selection of Securities to Be Redeemed 22
SECTION 3.4 Notice of Redemption 25
SECTION 3.5 Securities Payable on Redemption Date 26
SECTION 3.6 Securities Redeemed in Part 26
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Principal of and Interest on Securities 27
SECTION 4.2 Reporting Requirements 27
SECTION 4.3 Corporate Existence 28
SECTION 4.4 Compliance with Laws 28
SECTION 4.5 Governmental Approvals 28
SECTION 4.6 Payment of Taxes and Claims 28
SECTION 4.7 Books and Records 29
SECTION 4.8 Use of Proceeds 29
SECTION 4.9 Indebtedness 29
SECTION 4.10 Business Activities 32
SECTION 4.11 Liens 32
SECTION 4.12 Fundamental Changes 33
SECTION 4.13 Transactions with Affiliates 33
SECTION 4.14 Amendments to the Cordova Energy Credit Agreement and
Cordova Energy Project Note 33
SECTION 4.15 Non-Consolidation 33
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1 Events of Default Defined 34
SECTION 5.2 Enforcement of Remedies 36
SECTION 5.3 Specific Remedies 41
SECTION 5.4 Judicial Proceedings Instituted by Trustee 41
SECTION 5.5 Holders May Demand Enforcement of Rights by Trustee 44
SECTION 5.6 Control by Holders 44
SECTION 5.7 Waiver of Past Defaults or Events of Default 44
SECTION 5.8 Holder May Not Bring Suit Under Certain Conditions 45
SECTION 5.9 Undertaking to Pay Court Costs 46
SECTION 5.10 Right of the Holders to Receive Payment Not to be Impaired 46
SECTION 5.11 Application of Moneys Collected by Trustee 46
SECTION 5.12 Securities Held by Certain Persons Not to Share in
Distribution 47
SECTION 5.13 Waiver of Appraisement, Valuation, Stay, Right to
Marshalling 47
SECTION 5.14 Limitation on Holders' Bankruptcy Rights 48
SECTION 5.15 Remedies Cumulative; Delay or Omission Not a Waiver 48
SECTION 5.16 The Intercreditor Agreement 48
SECTION 5.17 The Depositary Agreement 48
ARTICLE VI
ACTS OF HOLDERS
SECTION 6.1 Acts of Holders 49
SECTION 6.2 Purposes for Which Holders' Meeting May Be Called 50
SECTION 6.3 Call of Meetings by Trustee 50
SECTION 6.4 The Funding Corporation and Holders May Call Meeting 51
SECTION 6.5 Persons Entitled to Vote at Meeting 51
SECTION 6.6 Determination of Voting Rights; Conduct and Adjournment
of Meeting 51
SECTION 6.7 Counting Votes and Recording Action of Meeting 52
SECTION 6.8 Evidence of Action Taken by Holders 52
SECTION 6.9 Proof of Execution of Instruments and of Holding of
Securities 53
SECTION 6.10 Securities Owned by the Funding Corporation Deemed Not
Outstanding 54
SECTION 6.11 Right of Revocation of Action Taken 54
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ARTICLE VII
AMENDMENTS AND SUPPLEMENTS
SECTION 7.1 Amendments and Supplements to Indenture without Consent
of Holders 55
SECTION 7.2 Amendments and Supplements to Indenture with Consent
of Holders 56
SECTION 7.3 Amendment of the Credit Agreements or Project Notes 56
SECTION 7.4 Trustee Authorized to Join in Amendments and Supplements;
Reliance on Counsel 56
SECTION 7.5 Effect of Supplemental Indentures 56
SECTION 7.6 Conformity with Trust Indenture Act 57
SECTION 7.7 Reference in Securities to Supplemental Indentures 58
SECTION 7.8 Conformity with Trust Indenture Act 58
SECTION 7.9 Reference in Securities to Supplemental Indentures 58
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ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 Satisfaction and Discharge of Securities 58
SECTION 8.2 Satisfaction and Discharge of Indenture 59
SECTION 8.3 Application of Trust Money 60
ARTICLE IX
DEFEASANCE
SECTION 9.1 Funding Corporation's Option to Effect Defeasance or
Covenant Defeasance 60
SECTION 9.2 Defeasance and Discharge 61
SECTION 9.3 Covenant Defeasance 61
SECTION 9.4 Conditions to Defeasance or Covenant Defeasance 61
SECTION 9.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions 63
SECTION 9.6 Reinstatement 63
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ARTICLE X
THE TRUSTEE AND DTC
SECTION 10.1 Certain Duties and Responsibilities of the Trustee 64
SECTION 10.2 Notice of Defaults 65
SECTION 10.3 Certain Rights of Trustee 66
SECTION 10.4 Not Responsible for Recitals or Issuance of Securities 67
SECTION 10.5 May Hold Securities 67
SECTION 10.6 Money Held in Trust 67
SECTION 10.7 Compensation; Reimbursement; Indemnification 67
SECTION 10.8 Eligibility 67
SECTION 10.9 Resignation and Removal; Appointment of Success 68
SECTION 10.10 Acceptance of Appointment by Successor 69
SECTION 10.11 Merger, Conversion, Consolidation or Succession to
Business 69
SECTION 10.12 Maintenance of Offices and Agencies 70
SECTION 10.13 Disqualification; Conflicting Interests 72
SECTION 10.14 The Depository Trust Company 72
ARTICLE XI
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND THE FUNDING CORPORATION
SECTION 11.1 The Funding Corporation to Furnish to the Trustee Names
and Addresses of the Holders 73
SECTION 11.2 Trustee to Furnish Other Information 73
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1 Deposit of Funds for Payment of Securities 74
SECTION 12.2 Third Party Beneficiaries; No Rights Conferred on Others 74
SECTION 12.3 Illegal Provisions Disregarded 74
SECTION 12.4 Substitute Notice 74
SECTION 12.5 Notice to Rating Agencies 74
SECTION 12.6 Notices 74
SECTION 12.7 Successors and Assigns 76
SECTION 12.8 Headings for Convenience Only 76
SECTION 12.9 Counterparts 76
SECTION 12.10 APPLICABLE LAW 76
SECTION 12.11 Holidays 76
SECTION 12.12 Limitation of Liability 76
SCHEDULE I - Schedule of Amortization of Principal on the Securities SCHEDULE II
- Schedule of Major Maintenance Reserve Requirement
EXHIBIT A - Definitions
EXHIBIT B - Form of Bond
EXHIBIT C - Form of Certificate
EXHIBIT D - Form of Transferor Certificate
EXHIBIT E - Form of Institutional Accredited Investor Transferee
Compliance Letter
EXHIBIT F - Terms of Subordination
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Cross-reference sheet showing the location in this Indenture of the provisions inserted pursuant to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Section Indenture Section
Section 310 (a) (1) 11.8
(a) (2) 11.8
(a) (3) Not Applicable
(a) (4) Not Applicable
(a) (5) 11.8
(b) 11.9
(c) Not Applicable
Section 311 (a) 6.4(d)
(b) 6.4(d)
(c) Not Applicable
Section 312 (a) 2.6(b), 12.1
(b) 1.5
(c) 1.5
Section 313 (a) 12.2
(b) 12.2
(c) 12.2(b), 13.6(b)
(d) 12.2
Section 314 (a) 5.2, 5.10
(b) (1) Not Applicable
(b) (2) Not Applicable
(c) (1) 1.3
Trust Indenture Act Section Indenture Section
(c) (2) 1.3
(c) (3) Not Applicable
(d) Not Applicable
(e) 1.3
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(f) Not Applicable
Section 315 (a) 11.1(a)
(b) 6.2, 12.2
(c) 11.1(b)
(d) (1) 11.1(c)
(d) (2) 11.1(c)(2)
(d) (3) 11.1(c)(3)
(e) 6.9
Section 316 (a) (1) (A) 6.6
(a) (1) (B) 6.7
(a) (2) 6.7
(b) 6.10
(c) 2.4
Section 317 (a) (1) 6.4(a)
(a) (2) 6.4(d)
(b) 11.12
Section 318 1.5
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TRUST INDENTURE
This TRUST INDENTURE, dated as of September 10, 1999 (this "Indenture"), is by and between CORDOVA FUNDING CORPORATION, a corporation organized under the laws of the state of Delaware (the "Funding Corporation"), and CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION, a banking association organized under the federal laws of the United States of America, as Trustee (together with its successors in such capacity, the "Trustee").
W I T N E S S E T H:
WHEREAS, the Funding Corporation was formed for the sole purpose of issuing its bonds, debentures, promissory notes or other evidences of indebtedness under this Indenture;
WHEREAS, the Funding Corporation has duly authorized the creation of an issue of senior secured bonds to be issued up to such principal amount authorized in accordance with the terms of this Indenture, and the Funding Corporation has duly authorized the execution and delivery of this Indenture to secure the Securities and to provide for the authentication and delivery thereof by the Trustee;
WHEREAS, the Funding Corporation has authorized the issuance of its Series A Senior Secured Bonds (the "Initial Securities") and will use the proceeds of the Initial Securities to make loans from time to time to Cordova Energy Company LLC, a Delaware limited liability company ("Cordova Energy"), pursuant to the Credit Agreement, dated as of the date hereof, between the Funding Corporation and Cordova Energy (the "Cordova Energy Credit Agreement");
WHEREAS, the Cordova Energy Credit Agreement provides for the payment by Cordova Energy of amounts sufficient to enable the Funding Corporation to pay the principal of, premium (if any), and interest on all Initial Securities at any time issued and outstanding under this Indenture according to their tenor and to pay other costs of the Funding Corporation and the Trustee incurred in connection with the Initial Securities, this Indenture, the Cordova Energy Credit Agreement and the other Financing Documents; and
WHEREAS, Cordova Energy has guaranteed to the Trustee the payment of principal, premium (if any), interest and other amounts due from the Funding Corporation under this Indenture with respect to the Securities.
NOW, THEREFORE, that, for and in consideration of the premises and of the covenants herein contained and of the purchase of the Securities by Holders thereof, it is mutually covenanted and agreed, for the benefit of the parties hereto and the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS; INDENTURE TO CONSTITUTE CONTRACT
SECTION 1.1 Definitions; Construction. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Exhibit A attached hereto, which Exhibit A is hereby incorporated by reference herein, and shall include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(d) all references in this Indenture to designated "Articles," "Sections," "Exhibits" and other subdivisions are to the designated Articles, Sections, Exhibits and other subdivisions of this Indenture;
(e) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, Exhibit or other subdivision;
(f) unless otherwise expressly specified, any agreement, contract or document defined or referred to herein shall mean such agreement, contract or document as in effect as of the date hereof, as the same may thereafter be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and of this Indenture and the other Financing Documents and including any agreement, contract or document in substitution or replacement of any of the foregoing;
(g) unless the context clearly intends to the contrary, pronouns having a masculine or feminine gender shall be deemed to include the other gender; and
(h) any reference to any Person shall include its successors and assigns, and in the case of any Governmental Authority, any Person succeeding to its functions and capacities.
SECTION 1.2 Indenture to Constitute Contract. In consideration of the purchase and acceptance of any or all of the Securities by those who shall hold the same from time to time, the provisions of this Indenture shall be part of the contract of the Funding Corporation with Holders of the Securities, and shall be deemed to be and shall constitute contracts between the Funding Corporation, the Trustee and Holders from time to time of the Securities. The provisions, covenants and agreements herein set forth to be performed by or on behalf of the Funding Corporation shall be for the equal benefit, protection and security of the Holders of any and all of the Securities. All of the Securities, regardless of the time or times of their issuance or maturity, shall be of equal rank without preference, priority or distinction of any of the Securities over any other thereof except as expressly provided in or pursuant to this Indenture.
SECTION 1.3 Compliance Certificates and Opinions. Except as otherwise expressly provided by this Indenture, upon any application or request by the Funding Corporation to the Trustee that the Trustee take any action under any provision of this Indenture, the Funding Corporation shall furnish to the Trustee an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except that in the case of any particular application or request as to which the furnishing of documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. The Trustee may conclusively rely, and shall be fully protected in relying, on any such Officer's Certificate.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
such examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such covenant or
condition has been complied with;
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with; and
(e) in the case of an Officer's Certificate of the Funding Corporation, a statement that no Default or Event of Default under this Indenture has occurred and is continuing (unless such Officer's Certificate relates to a Default or an Event of Default).
SECTION 1.4 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Funding Corporation may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows or has reason to believe that the certificate or opinion or representations with respect to the matters upon which such Officer's Certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon an Authorized Representative of the Funding Corporation stating that the information with respect to such factual matters is in the possession of the Funding Corporation, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 1.5 Conflict with Trust Indenture Act. If any provision hereof, including without limitation, Section 5.16 or 5.17 hereof, limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply in this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.6 Agency. In executing the Securities and this Indenture, the Funding Corporation will be acting both as principal and as agent for Cordova Energy and any Additional Guarantor to the extent of Cordova Energy's or such Additional Guarantor's, as the case may be, obligations under the Securities. As used in this Indenture, references to the "Funding Corporation" shall be interpreted to include the Funding Corporation in its capacity as principal and the Funding Corporation in its capacity as agent pursuant to the Agency Agreement with Cordova Energy or any Additional Guarantor, as the case may be, with respect to Cordova Energy's or such Additional Guarantor's, as the case may be, obligations under this Indenture.
ARTICLE II
THE SECURITIES
SECTION 2.1 Authorization, Amount, Terms and Issuance of
Securities. (a) Securities may be issued hereunder from time to time. No
Securities may be issued under this Indenture except in accordance with this
Article II. The maximum principal amount of Securities which may be issued
hereunder is not limited. The Securities (i) shall be designated "Cordova
Funding Corporation Senior Secured Bonds" and (ii) shall be issued in Authorized
Denominations. The Securities may have notations, legends or endorsements
required by Law or usage satisfactory to the Trustee. The Initial Securities
shall contain substantially the terms recited in the form of Security set forth
in Exhibit B.
(b) Private placement numbers issued by S&P's CUSIP Service Bureau (in cooperation with the Securities Valuation Office of the National Association of Insurance Commissioners) or "CUSIP" numbers may be printed on the Securities. Neither the Funding Corporation nor the Trustee shall have any responsibility for any defect in the private placement number or CUSIP number, as the case may be, that appears on any bond, check, advice of payment or redemption notice, and any such document may contain a statement to the effect that private placement numbers or CUSIP numbers, as the case may be, have been assigned by an independent service for convenience of reference and that neither the Funding Corporation nor the Trustee shall be liable for any inaccuracy in such numbers. The Securities may bear such endorsements or legends satisfactory to the Trustee as may be required to conform to usage or law with respect thereto.
SECTION 2.2 Authorization and Terms of the Initial Securities.
(a) The Initial Securities to be issued under this Indenture are hereby created.
The Funding Corporation may issue the Initial Securities from time to time in
accordance with the Bond Purchase Agreement, substantially in the form of
Exhibit B, upon the execution of this Indenture. The Trustee shall, at the
Funding Corporation's written request, authenticate the Initial Securities and
deliver them as specified in such request.
(b) The Initial Securities shall be issued in five separate series (each, a "Series"), designated A-1 through A-5, respectively, on five different closing dates, in each case in accordance with the Bond Purchase Agreement. Each Series of Initial Securities shall be dated the date of issuance thereof (the "Applicable Closing Date" for such Series) and shall be in an aggregate principal amount determined for such Series as provided in the Bond Purchase Agreement.
(c) Each Series of Initial Securities shall have a final
maturity date of December 15, 2019 (the "Series A Final Maturity Date") and
shall bear interest at the rate determined for such Series in accordance with
Section 1 of the Bond Purchase Agreement. The Series A-2 through A-5 Securities
shall be dated as of the date of authentication thereof. The Funding Corporation
shall deliver to the Trustee an Officer's Certificate specifying the date of
issuance of such Initial Securities, the aggregate principal amount of the
Initial Securities being issued on such date and the interest rate for such
Series of Initial securities being issued.
(d) The principal of, premium (if any) and interest on, the Initial Securities shall be payable in any coin or currency of the United States of America which, at the respective dates of payment thereof, is legal tender for the payment of public and private debts. Payment of principal of and interest on the Initial Securities shall be made (i) by check or draft mailed on the Scheduled Payment Date to the registered owner as of the close of business on the Record Date immediately preceding the Scheduled Payment Date, at his address as it appears on the registration books of the Trustee or (ii) by wire transfer to such registered owner as of the close of business on such Record Date upon written notice of such wire transfer address in the continental United States given not less than fifteen (15) days prior to such Record Date; provided, however, that if and to the extent that there shall be a default in the payment of the interest or principal due on such Scheduled Payment Date,
such defaulted interest and/or principal shall be paid to the Holder in whose name any such Initial Security is registered at the close of business on the day determined by the Trustee as provided in Section 2.4 hereof.
(e) Interest on each Series of Initial Securities shall be paid in arrears on each June 15 and December 15, commencing on the Scheduled Payment Date next succeeding the Applicable Closing Date for such Series and concluding on the Series A Final Maturity Date. Interest on the Initial Securities shall be computed upon the basis of a 360-day year, consisting of twelve (12) thirty (30) day months.
(f) Principal of each Series of Initial Securities shall be paid in an amount, and on the Scheduled Payment Dates, as set forth with respect to such Series on Schedule I hereto.
(g) Final payment or prepayment in full of the Initial Securities shall be made to the Holders thereof upon presentation and surrender of such Initial Securities at the office of the Trustee as indicated in Section 10.12 hereof. Prior to final payment of principal on any Initial Security, the principal amount outstanding on an Initial Security will be automatically reduced by the amount of any principal payment made to a registered Holder.
SECTION 2.3 Additional Securities.
(a) Additional Securities may, upon the satisfaction of the conditions set forth in this Section 2.3, be issued in the amounts and for the purposes permitted herein. All Additional Securities shall rank pari passu with the Initial Securities, shall be secured by the Funding Corporation Collateral and guaranteed pursuant to the Guarantees and shall have such date or dates, bear such interest rate or rates, have such maturity dates, redemption dates and redemption premiums, be in such form and be issued at such prices as shall be approved in writing by the Funding Corporation.
(b) Upon (i) the satisfaction of the applicable conditions set forth in paragraph (c) and (d) of this Section, (ii) the execution and delivery of (x) an appropriate Supplemental Indenture in compliance with Section 2.3(e) and Article VII of this Indenture, and (y) appropriate supplements or amendments to the Credit Agreements, the Security Documents and the Project Notes, (iii) receipt of a consent in writing by the Guarantors confirming that the Guarantees apply to such Additional Securities, and (iv) receipt by the Securities Intermediary of an Officer's Certificate confirming that Moneys on deposit in the Debt Service Reserve Account or otherwise available to be drawn on any Debt Service Reserve Letter of Credit or Debt Service Reserve Guarantee shall, in the aggregate, after giving effect to the issuance of such Additional Securities, be equal to the then current Debt Service Reserve Required Balance (as defined in the Depositary Agreement), and, if a Debt Service Reserve Letter of Credit or Debt Service Reserve Guarantee is to be available for amounts payable in respect of Additional Securities, the consent of the Debt Service Reserve LOC Provider or the Debt Service Reserve Guarantor and the requisite amount of financial institutions under any Debt Service Reserve LOC Reimbursement Agreement, if so required under any Debt Service Reserve LOC Reimbursement Agreement for such availability, shall have been obtained and be in full force and effect, as provided in the Debt Service Reserve Letter of Credit or Debt Service Reserve
Guarantee and/or the Depositary Agreement, as the case may be, the Funding Corporation shall execute Additional Securities and deliver them to the Trustee, and the Trustee upon the written request of the Funding Corporation shall authenticate such Additional Securities and deliver them to the purchasers thereof as may be directed by the Funding Corporation; provided, however, that notwithstanding anything to the contrary contained herein, no Additional Securities may be issued hereunder (x) without the prior written consent of the Funding Corporation, and (y) except with respect to clause (c)(i) below, at any time when a Default or an Event of Default shall have occurred and be continuing or if such issuance would, upon notice or the passage of time, cause a Default or an Event of Default. Upon the issuance of any Additional Securities, the Funding Corporation shall promptly provide the Trustee with a revised Schedule I to this Indenture that will provide for the payment of principal of such Additional Securities.
(c) Additional Securities may be issued by the Funding Corporation; provided that except with respect to clause (c)(i) below, no Default or Event of Default exists at time of the issuance of the Additional Securities, before and after giving effect to such issuance, and an Authorized Officer of the Funding Corporation so certifies to the Trustee; and provided, further, that all of the net proceeds of such Additional Securities must be loaned by the Funding Corporation to Cordova Energy and/or one or more Additional Guarantors pursuant to the Cordova Energy Credit Agreement and/or one or more Additional Credit Agreements, or supplement thereto, and such proceeds must be used by Cordova Energy and/or such Additional Guarantors for one or more of the following purposes, as certified at the time of authentication of such Additional Securities to the Trustee by an Authorized Officer of the Funding Corporation:
(i) to finance Required Modifications, so long as either:
(A) the Independent Engineer confirms (with customary assumptions and qualifications) as reasonable a certification from an Authorized Officer of the Funding Corporation to the Trustee (with customary assumptions and qualifications) that the minimum annual projected Debt Service Coverage Ratio during the remaining term of the Securities, after taking into account the issuance of such Additional Securities, is reasonably expected to be equal to or greater than:
(1) 1.2 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be 100%,
(2) 1.25 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 75% but less than 100%,
(3) 1.35 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 50% but less than 75%,
(4) 1.40 to 1.0, if the PPA Factor
during the remaining term of the
Securities is reasonably
expected to be equal to or
greater than 25% but less than
50%, and
(5) 1.5 to 1.0, if the PPA Factor
during the remaining term of the
Securities is reasonably
expected to be less than 25%, or
(B) the Funding Corporation obtains a
Ratings Reaffirmation with respect to
the issuance of such Additional
Securities;
(ii) to finance Optional Modifications, so long as:
(A) the Independent Engineer confirms (with
customary assumptions and qualifica-
tions) as reasonable a certification
from an Authorized Officer of the
Funding Corporation to the Trustee
(with customary assumptions and
qualifications) that (x) the minimum
annual projected Debt Service Coverage
|
Ratio during the remaining term of the Securities, after taking into account the issuance of such Additional Securities, is reasonably expected to be equal to or greater than:
(1) 1.4 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be 100%,
(2) 1.55 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 75% but less than 100%,
(3) 1.7 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 50% but less than 75%,
(4) 1.85 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 25% but less than 50%, and
(5) 2.0 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be less than 25%,
and (y) the average annual projected Debt Service Coverage Ratio during the remaining term of the Securities, after taking into account the issuance of such Additional Securities, is reasonably expected to be equal to or greater than:
(1) 1.4 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be 100%,
(2) 1.6 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 75% but less than 100%,
(3) 1.8 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 50% but less than 75%,
(4) 2.0 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 25% but less than 50%, and
(5) 2.25 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be less than 25%; and
(B) the Funding Corporation obtains a Ratings Reaffirmation with respect to the issuance of such Additional Securities;
(iii) to finance Expansion Modifications, so long as the Funding Corporation obtains a Ratings Reaffirmation with respect to the issuance of such Additional Securities;
(iv) to finance the construction, development,
acquisition, reconstruction, repowering,
improvement, start-up or operation of any
Additional Project, so long as after giving
effect to the issuance of such Additional
Securities, the Securities are rated at
least the higher of (a) "Baa3" by Moody's
(or the equivalent from another Rating
Agency if Moody's is not then providing
credit ratings) and "BBB-" by S&P (or the
equivalent from another Rating Agency if S&P
is not then providing credit ratings) and
(b) the then current Ratings of the
Securities;
(v) for working capital purposes in an
outstanding amount not to exceed at any one
time, when aggregated with any outstanding
Indebtedness incurred pursuant to Section
4.9(g), $5,000,000 (such amount to be
escalated annually in accordance with
increases in the Consumer Price Index);
(vi) for any purpose in an outstanding amount not
to exceed at any one time, when aggregated
with any outstanding Indebtedness incurred
pursuant to Section 4.9(j), $20,000,000
(such amount to be escalated annually in
accordance with increases in the Consumer
Price Index); or
(vii) for any purpose, so long as, after giving
effect to the incurrence of such Indebted-
ness, the Funding Corporation receives
confirmation that the Securities are rated
at least "Baa3" by Moody's (or the
equivalent from another Rating Agency if
Moody's is not then providing credit
ratings) and at least "BBB-" by S&P (or
the equivalent from another Rating Agency
if S&P is not then providing credit
|
ratings); provided that any Additional Securities issued for the purpose described in clause (iv) above shall satisfy the conditions set forth in such clause (iv).
(d) There shall have been delivered to the Trustee the certification and other information, if any, required by Section 2.3(c) hereof. The Trustee may conclusively rely on any certification or information so received.
(e) There shall be established in one or more Supplemental Indentures, prior to the issuance of Additional Securities of any series:
(i) the title of the Securities of such series (which shall distinguish the Securities of such series from all other Securities) and the form or forms of Securities of such series;
(ii) any limit upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series and except for Securities that are deemed never to have been authenticated and delivered hereunder);
(iii) the date or dates on which the principal of the Securities of such series is payable, the amounts of principal payable on such date or dates and the Record Date for the determination of the Holders to whom principal is payable; and the date or dates on or as of which the Securities of such series shall be dated;
(iv) the rate or rates at which the Securities of such series shall bear interest, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the Record Date for the determination of the Holders to whom interest is payable, and the basis of computation of interest;
(v) the place or places where (x) the principal
of, premium, if any, and interest on
Securities of such series shall be payable,
(y) Securities of such series may be
surrendered for registration of transfer or
exchange and (z) notices and demands to or
upon the Funding Corporation in respect of
the Securities of such series and this
Indenture may be served;
(vi) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of such series may be redeemed, in whole or in part, at the option of the Funding Corporation;
(vii) the obligation, if any, of the Funding Corporation to redeem, purchase or repay Securities of such series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of such series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligations;
(viii) if other than denominations of $100,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities of such series shall be issuable;
(ix) the restrictions or limitations, if any, on the transfer or exchange of the Securities of such series;
(x) the obligation, if any, of the Funding Corporation to file a registration statement with respect to the Securities of such series or to exchange the Securities of such series for Securities registered pursuant to the Securities Act;
(xi) any other terms of such series (which terms shall not contravene the provisions of this Indenture); and
(xii) any trustees, authenticating or paying agents, warrant agents, transfer agents or registrars with respect to the Securities of such series.
SECTION 2.4 Record Dates. The Person in whose name any Security is registered at the close of business on any Record Date with respect to any Scheduled Payment Date shall be entitled to receive the interest and/or principal payable on such Scheduled Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the Record Date and prior to such Scheduled Payment Date; provided, however, that if and to the extent there is a default in the payment of the interest and/or principal due on such Scheduled Payment Date, such defaulted interest and/or principal shall be paid to the Persons in whose names Outstanding Securities are registered at the close of business on a subsequent Record Date established by notice mailed by the Trustee to the registered owners of the Securities not less than fifteen (15) days preceding such subsequent Record Date, such Record Date to be not less than five (5) days preceding the date of payment of such defaulted interest and/or principal.
SECTION 2.5 Form; Transfer and Exchange.
(a) The Initial Securities shall be issued as definitive Restricted Securities. Upon surrender for registration of transfer of an Initial Security at the office or agency of the Registrar, the Funding Corporation shall execute, and the Trustee shall authenticate and deliver, in the name of the transferee, one or more new definitive Initial Securities of any Authorized Denomination, in the same aggregate principal amount and of the same maturity which the registered owner is entitled to receive. The Initial Security being surrendered for registration of transfer shall be accompanied by the following additional information and documents, as applicable:
(i) if such Initial Security is being acquired for the account of such Holder, a certification from such Holder to that effect;
(ii) if such Initial Security is being transferred to a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) (a "QIB") in accordance with Rule 144A under the Securities Act or pursuant to an effective registration statement under the Securities Act, a certification to that effect;
(iii) if such Initial Security is being transferred to certain Persons in offshore transactions pursuant to an exemption from registration in accordance with Regulation S under the Securities Act, a certification to that effect; or
(iv) if such Initial Security is being trans- ferred to a Person in reliance on another exemption from the registration requirements of the Securities Act, a certification to that effect together with either (1) the prior written authorization of the Funding Corporation, which shall not be unreasonably withheld, or (2) an opinion of counsel addressed to the Funding Corporation and the Trustee and reasonably satisfactory to each of them to the effect that such transfer is exempt from the registration requirements of the Securities Act.
All Initial Securities delivered in transfer shall be dated, pursuant to Section 2.2(b), so that neither gain nor loss in interest shall result from the transfer or exchange. No service charge shall be made for any exchange or transfer, but the Funding Corporation or the Trustee, as the case may be, may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto.
(b) The Additional Securities sold within the United States may be issued (i) as definitive Securities or (ii) in the form of one or more Global Securities and registered in the name of DTC or its nominee, Cede & Co., and shall represent the beneficial interests of Persons purchasing such Additional Securities. The Funding Corporation may appoint DTC to act as depositary (together with its successors in such capacity, the "Depositary") with respect to Additional Securities issued in global form. In the event any Additional Securities are issued in a transaction under Rule 144A of the Securities Act, any Person purchasing such Additional Securities shall do so in transactions complying with Rule 144A under the Securities Act. The Trustee, as custodian ("Custodian"), will act as custodian of each Global Security for the Depositary or appoint a sub-custodian to act in such capacity. So long as the Depositary or its nominee is the registered owner of any Global Security, it shall be considered the Holder of the Securities represented thereby for all purposes hereunder and under such Global Security. Interests in Global Securities shall be transferred on the Depositary's book-entry settlement system.
Additional Securities may also be offered and sold in offshore transactions in reliance on Regulation S, and if so offered and sold may be issued in the form of one or more temporary global Securities in registered form substantially in the form as above recited (the "Temporary Offshore Global Securities") deposited with the Trustee, as custodian for the Depositary, duly executed by the Funding Corporation and authenticated by the Trustee as hereinafter provided. At any time beginning 40 days after the later of the commencement of the offering and the closing in connection with such Additional Securities (the "Offshore Securities Exchange Date"), upon receipt by the Trustee and the Funding Corporation of a certificate substantially in the form of Exhibit C hereto, one or more permanent global securities in registered form substantially in the form as above recited (the "Permanent Offshore Global Securities" and, together with the Temporary Offshore Global Securities, the "Offshore Global Securities") duly executed by the Funding Corporation and authenticated by the Trustee as hereinafter provided shall be deposited with the Trustee, as custodian for the Depositary, and the registrar shall reflect on its books and records the date and a decrease in the principal amount of the Temporary Offshore Global Securities in an amount equal to the principal amount of the beneficial interest in the Temporary Offshore Global Securities transferred.
(c) Additional Securities may also be offered and sold to
institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) in accordance with Regulation D under the
Securities Act and, if so offered and sold, shall be issued in the form of
definitive physical certificates and shall be Restricted Securities.
(d) The Funding Corporation shall cause books for the registration and transfer of the Initial Securities and any Additional Securities (the "Securities Register") to be kept at the principal office of the Trustee in San Francisco and hereby appoints the Trustee as registrar (the "Registrar") to keep such books.
(e) The transfer and exchange of Securities in global form shall be effected through the Depositary, in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor. Upon surrender for registration of transfer or exchange
of any definitive Security (including any definitive Security issued pursuant to
Section 2.5(h) or 2.5(i) hereof), at the office or agency of the Registrar, the
Funding Corporation shall execute, and the Trustee shall authenticate and
deliver, in the name of the Holder (in the case of exchanges) or the transferees
(in the case of transfers), one or more new definitive Securities of any
Authorized Denomination, in the same aggregate principal amount and of the same
maturity which the registered owner is entitled to receive; provided, however,
that in the case of the surrender for registration of transfer of any definitive
Restricted Security, such definitive Restricted Security shall be accompanied by
the following additional information and documents, as applicable:
(i) if such definitive Restricted Security is being acquired for the account of such Holder, without transfer, a certification from such Holder to that effect;
(ii) if such definitive Restricted Security is being transferred to a QIB in accordance with Rule 144A under the Securities Act or pursuant to an effective registration statement under the Securities Act, a certification to that effect;
(iii) if such definitive Restricted Security is being transferred to certain Persons in offshore transactions pursuant to an exemption from registration in accordance with Regulation S under the Securities Act, a certification to that effect; or
(iv) if such definitive Restricted Security is being transferred to a Person in reliance on another exemption from the registration requirements of the Securities Act, a certification to that effect together with either (1) the prior written authorization of the Funding Corporation, which shall not be unreasonably withheld, or (2) an opinion of counsel addressed to the Funding Corpora- tion and the Trustee and reasonably satis- factory to each of them to the effect that such transfer is exempt from the registra- tion requirements of the Securities Act.
All Securities delivered in connection with a transfer or exchange shall be dated, in accordance with Section 2.2(b), so that neither gain nor loss in interest shall result from the transfer or exchange. No service charge shall be made for any exchange or transfer, but the Funding Corporation or the Trustee, as the case may be, may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto.
(f) Each certificate evidencing the Securities in global form and the definitive Securities, if any (and all Securities issued in exchange therefor or substitution thereof), shall bear the legend in substantially the form set forth in the form of Security attached hereto as Exhibit B. Upon a
request for registration of any transfer of an Additional Security which is a Restricted Security (including any restricted Additional Security represented by a security in global form) pursuant to an effective registration statement under the Securities Act in accordance with a Registration Rights Agreement and any applicable securities laws of any State of the United States, the Registrar shall exchange any such Restricted Security for definitive Securities that do not bear the legend referenced above and rescind any restriction on the transfer of such Additional Security.
(g) Notwithstanding any other provision herein (other than the provisions set forth in paragraph (h) of this Section), a Security in global form may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(h) The beneficial interests represented by any Global
Security shall be issued as definitive Securities, without coupons, to Holders
or their nominees, rather than to Cede & Co. as nominee for the Depositary, if
(i) the Funding Corporation advises the Trustee in writing that the Depositary
is no longer willing or able to discharge properly its responsibilities as
Depositary with respect to such Global Security and the Funding Corporation is
unable to locate a qualified successor, (ii) the Funding Corporation, at its
option, elects to terminate the book-entry system through the Depositary with
respect to the Securities represented by such Global Security or (iii) after the
occurrence of an Event of Default, beneficial owners holding interests
representing an aggregate principal amount of Securities of not less than 51% of
the Securities represented by such Global Security advise the Trustee through
the Depositary in writing that the continuation of a book-entry system through
the Depositary with respect to the Securities represented by such Global
Security is no longer in such owners' best interests.
Upon the occurrence of any of the events in clauses (i) through (iii) of the preceding paragraph, the Trustee shall, upon receipt of written notice and a list of all Persons who hold a beneficial interest in the relevant Global Security from the Depositary, be required to notify, at the expense of the Funding Corporation, all Persons who hold a beneficial interest in such Global Security through participants in the Depositary or indirect participants through participants in the Depositary of the issuance of definitive Securities. Upon surrender by the Custodian of such Global Security and receipt from the Depositary of instructions for re-registration, the Funding Corporation will execute and the Trustee, upon the written instructions of the Funding Corporation in the case of an event in clause (i) or (ii) of the preceding paragraph and upon the written instructions of the beneficial owners holding interests representing an aggregate principal amount of Outstanding Securities of not less than 51% of the Securities represented by such Global Security in the case of an event in clause (iii) of the preceding paragraph, will authenticate and deliver the definitive Securities.
Definitive Securities issued in exchange for all or any portion of a Security in global form pursuant to this Section 2.5 shall be registered in such names and in such Authorized Denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall make available for delivery such definitive Securities to the Persons in whose names such Securities are so registered.
(i) Upon satisfaction of the requirements of this paragraph
(i), any Person having a beneficial interest in Securities in global form may
upon request exchange its interest in the Securities in global form for a
definitive Security or cause a definitive Security to be issued upon transfer of
such beneficial interest. Upon receipt by the Trustee of (1) written or
electronic instructions from the Depositary or its nominee on behalf of any
Person having a beneficial interest in Securities in global form, (2) a written
order of the Depositary or its nominee containing instructions with respect to
the registration of transfer or exchange, and (3) in the case of Restricted
Securities only, the following additional information and documents, as
applicable:
(i) if such Restricted Security is being acquired for the account of such Person, without transfer, a certification to that effect; or
(ii) if such Restricted Security is being transferred to a QIB in accordance with Rule 144A under the Securities Act or pursuant to an effective registration statement under the Securities Act, a certification to that effect; or
(iii) if such Restricted Security is being trans- ferred to a Person in reliance on another exemption from the registration requirements of the Securities Act, a certification to that effect together with either (1) the prior written authorization of the Funding Corporation, which shall not be unreasonably withheld, or (2) an opinion of counsel addressed to the Funding Corporation and the Trustee and reasonably satisfactory to each of them to the effect that such transfer is exempt from the registration requirements of the Securities Act;
the Trustee, or the Custodian at the direction of the Trustee, will cause, in accordance with the standing instructions and procedures existing between the Depositary and the Custodian, the aggregate principal amount of the Securities in global form to be reduced by the principal amount of Securities for which issuance of definitive Securities has been requested and for which the requirements of this paragraph have been satisfied and, following such reduction, the Funding Corporation will execute and the Trustee will authenticate and deliver to such person or the transferee, as the case may be, a definitive Security in the principal amount by which the Securities in global form have been so reduced.
Upon satisfaction of the requirements of this Section 2.5, any holder of a definitive Security other than an Initial Security may exchange such definitive Security for an interest in the Security in global form. Upon receipt by the Trustee of a definitive Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee, together with (a) a certification from the Holder that such definitive Security is being transferred to a QIB in accordance with Rule 144A under the Securities Act, and (b) written instructions from the Holder that the Security so transferred shall be registered in the name of DTC or its nominee, the Trustee shall cancel such definitive Security and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Custodian, the aggregate principal amount of Securities represented by the Security in global form to be increased accordingly.
(j) At such time as all interests in a Security in global form have been exchanged for definitive Securities or cancelled, such Security in global form shall be cancelled by the Trustee. At any time prior to such cancellation, if (i) any interest in a Global Security is exchanged for definitive Securities or cancelled, the principal amount of Securities represented by such Security in global form shall be reduced by the principal amount of Securities exchanged for definitive Securities, and an endorsement shall be made on such Security in global form by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or (ii) any definitive Security is exchanged for an interest in a Global Security, the principal amount of Securities represented by such Global Security shall be increased by the principal amount of definitive Securities exchanged for an interest in such Global Security, and an endorsement shall be made on such Global Security by the Trustee or the Custodian, at the direction of the Trustee, to reflect such increase.
(k) New Securities delivered upon any transfer or exchange shall be valid obligations of the Funding Corporation, evidencing the same debt as the Securities surrendered, shall be secured by this Indenture and shall be entitled to all of the security and benefits of the Indenture to the same extent as the Securities surrendered.
(l) Any Additional Securities which are presented to the Registrar for exchange pursuant to an Exchange Offer shall be exchanged for Exchange Securities of the same series and of equal principal amount upon surrender to the Registrar of the Securities to be exchanged; provided, however, that the Additional Securities so surrendered for exchange shall be duly endorsed and accompanied by a letter of transmittal or written instrument of transfer in form satisfactory to the Funding Corporation and the Registrar, duly executed by the Holder thereof or its attorney who shall be duly authorized in writing to execute such document. Whenever any Additional Securities are so surrendered for exchange, the Funding Corporation shall execute, and the Trustee shall authenticate and deliver to the Registrar, the same aggregate principal amount of Exchange Securities of the same series that have been surrendered.
SECTION 2.6 Execution. The Securities shall be executed by the manual or facsimile signature of the Chairman of the Board, the Chief Executive Officer, the President or any Vice President of the Funding Corporation.
(b) Securities executed as provided above may be issued and shall be authenticated by the Trustee, notwithstanding that any officer signing such Securities or whose facsimile signature appears thereon shall have ceased
to hold office at the time of issuance or authentication or shall not have held office at the date of such Securities.
SECTION 2.7 Authentication. No Security shall be valid for any purpose until the certificate of authentication shall have been duly executed by the Trustee. Such authentication shall be conclusive proof that such Security has been duly authenticated and delivered under this Indenture and that the Holder thereof is entitled to the benefit of the trust hereby created. The Trustee shall, at the written request of the Funding Corporation, authenticate the Securities at the initial issuance thereof and deliver them to the purchaser thereof upon payment to the Funding Corporation of the purchase price therefor. Any Securities subsequently issued under this Indenture may be authenticated by the Trustee or any authenticating agent appointed by the Trustee, and such authentication shall, for all purposes of this Indenture, be deemed to be the authentication of and delivery by the Trustee.
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Securities.
(a) If any Security shall become mutilated, the Funding Corporation shall execute, and the Trustee shall thereupon authenticate and deliver, a new Security of like tenor, maturity and denomination in exchange and substitution for the Security so mutilated, but only upon surrender to the Trustee of such mutilated Security for cancellation, and the Funding Corporation or the Trustee may require reasonable indemnity therefor. If any Security shall be reported lost, stolen or destroyed, evidence as to the ownership thereof and the loss, theft or destruction thereof shall be submitted to the Trustee. If such evidence shall be satisfactory to both the Trustee and the Funding Corporation and indemnity satisfactory to both shall be given, the Funding Corporation shall execute, and thereupon the Trustee shall authenticate and deliver, a new Security of like tenor, maturity and denomination. The cost of providing any substitute Security under the provisions of this Section shall be borne by the Holder for whose benefit such substitute Security is provided. If any such mutilated, lost, stolen or destroyed Security shall have matured or be about to mature, the Funding Corporation may, with the consent of the Trustee, pay to the Holder the principal amount of such Security upon the maturity thereof and the compliance with the aforesaid conditions by such Holder, without the issuance of a substitute Security therefor, and likewise pay to the Holder the amount of the unpaid interest, if any, which would have been payable on a substitute Security had one been issued. Notwithstanding the foregoing provisions of this Section 2.8(a) with respect to evidence of ownership of a mutilated, lost or stolen Security and provision by the Holder thereof of indemnity, if the Holder of such Security is an insurance company with a net worth of more than $100,000,000 (or, in either such case, a nominee or affiliate thereof if the obligations as contemplated hereunder are guaranteed by such insurance company), such Holder's statement as to ownership and an unsecured agreement of indemnity shall, for purposes of this Section 2.8(a), be deemed satisfactory.
(b) Every substitute Security issued pursuant to this Section 2.8 shall constitute an additional contractual obligation of the Funding Corporation, whether or not the Security alleged to have been destroyed, lost or stolen shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
(c) All Securities shall be held and owned upon the express condition that the foregoing provisions are, to the extent permitted by Law, exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude any and all other rights or remedies.
SECTION 2.9 Temporary Securities. Pending preparation of definitive Securities, the Funding Corporation may issue, and, upon its written request, the Trustee shall authenticate, in lieu of definitive Securities, one or more temporary printed or typewritten Securities in the form recited in this Indenture, in any Authorized Denomination. Upon written request of the Funding Corporation, the Trustee shall authenticate definitive Securities in exchange for, and upon surrender of an equal principal amount of, temporary Securities. Until so exchanged, temporary Securities shall have the same rights, remedies and security hereunder as definitive Securities.
SECTION 2.10 Cancellation and Destruction of Surrendered Securities. Securities surrendered for payment, or exchanged and surrendered to the Trustee for cancellation by the Funding Corporation, shall be cancelled and destroyed by the Trustee.
SECTION 2.11 Disposition of Net Proceeds of Initial Securities. Upon receipt of the net proceeds from the sale of each Series of Initial Securities, the Trustee shall apply such proceeds to the account of the Funding Corporation for loan by the Funding Corporation to Cordova Energy pursuant to the Cordova Energy Credit Agreement.
ARTICLE III
REDEMPTION OF SECURITIES
SECTION 3.1 Optional Redemption.
(a) Outstanding Initial Securities may be redeemed prior to maturity, as a whole or in part, at any time on any Business Day, at the option of the Funding Corporation, subject to the conditions and at the Redemption Price (which will include the Standard Make-Whole Premium) specified in the form of Security attached hereto as Exhibit B.
(b) The Funding Corporation, at its option, may elect, at any
time on any Business Day, to redeem a principal amount of the Outstanding
Initial Securities constituting the Guaranteed Payment at the Redemption Price
(which will include the Special Make-Whole Premium) specified in the form of
Security attached hereto as Exhibit B. For the avoidance of doubt, (x) the
portion of the Outstanding Initial Securities redeemed pursuant to this clause
(b) shall be deemed to be the Guaranteed Payment and (y) this clause (b) shall
not be deemed to require the redemption of any portion of the Outstanding
Initial Securities other than the Guaranteed Payment.
Upon the occurrence of any such redemption pursuant to this
Section 3.1(b), the Trustee shall, in accordance with the terms of the
MidAmerican Holdings Guarantee, release the Guarantors (as defined in the
MidAmerican Holdings Guarantee) from all of their obligations under the MidAmerican Holdings Guarantee. The Trustee shall take all actions reasonably requested by the Funding Corporation in connection with such release. The Trustee may rely on an Officer's Certificate from the Funding Corporation as to principal amount to be redeemed under this Section 3.1(b) and the calculation of the Standard Make-Whole Premium to be applied to such redemption.
(c) If the Cordova Energy Project has not achieved Substantial Performance Tests Completion, the Funding Corporation may elect to redeem Outstanding Initial Securities, as a whole or in part, at any time on any Business Day, at a redemption price equal to the principal amount of the Initial Securities being redeemed with interest on the principal amount of the Initial Securities being redeemed accrued to but not including the Redemption Date. If any such redemption shall occur, and the Initial Securities shall then have Ratings which are equivalent to or better than the ratings assigned to the Initial Securities on the initial Closing Date, Substantial Completion of the Cordova Energy Project shall be deemed to have occurred as of the date on which the Funding Corporation shall have deposited the required amount of funds in the Mandatory Redemption Fund in connection with such redemption, notwithstanding the failure of the Cordova Energy Project to achieve Substantial Performance Tests Completion, if, after giving effect to such redemption and any redemption made pursuant to Section 3.3(a)(i), the minimum annual projected Debt Service Coverage Ratio during the remaining term of the Initial Securities is reasonably expected to be equal to or greater than (i) 1.4 to 1.0 during the term of the Power Purchase Agreement or any Acceptable Power Purchase Agreement and (ii) 2.25 to 1.0 during any other period.
(d) All proceeds received by the Trustee from or on behalf of the Funding Corporation which are identified as proceeds for an optional redemption of the Outstanding Initial Securities under this Section 3.1 shall be applied by the Trustee to the redemption of such Securities on the Redemption Date therefor.
(e) Any redemption of Outstanding Initial Securities pursuant to this Section 3.1 shall be pro rata among all Series of Outstanding Initial Securities.
SECTION 3.2 Election or Requirement to Redeem; Notice to
Trustee. If the Funding Corporation elects or is required to redeem any
Securities pursuant to this Indenture or otherwise, it shall, except to the
extent that the Trustee is required to select the Redemption Date pursuant to
Section 3.3(a), (b) or (c), at least forty-five (45) days prior to the date upon
which notice of redemption is required to be given to Holders pursuant to
Section 3.4 hereof (unless a shorter notice period shall be satisfactory to the
Trustee), deliver to the Trustee and the Securities Intermediary an Officer's
Certificate, or a determination of a Redemption Date by the Trustee pursuant to
Section 3.3(a), (b) or (c), specifying the date on which such redemption shall
occur (the "Redemption Date"), as determined in accordance with this Article III
and the series and principal amount of Securities to be redeemed. Upon receipt
of any such Officer's Certificate, the Trustee shall establish a non-interest
bearing special purpose trust fund (the "Mandatory Redemption Fund") into which
shall be deposited by the Funding Corporation, the Securities Intermediary, the
Collateral Agent or any other Person, as the case may be, not later than one
Business Day prior to the Redemption Date, immediately available amounts to be
held by the Trustee and applied to the redemption of such Securities on the Redemption Date. The Mandatory Redemption Fund shall at all times be in the exclusive possession of, and under the exclusive dominion and control of, the Trustee.
SECTION 3.3 Mandatory Redemption; Redemption at the Option of the Holders; Selection of Securities to Be Redeemed.
(a) Outstanding Initial Securities shall be redeemed, pro rata among all Series of all Outstanding Securities, in whole or in part, prior to maturity, at a redemption price equal to the principal amount of the Outstanding Initial Securities being redeemed, together with the interest on the principal amount of the Outstanding Initial Securities being redeemed accrued to but not including the Redemption Date, if:
(i) Cordova Energy and/or the Collateral Agent
receives Performance Liquidated Damages in
excess of $5,000,000 (after subtracting
(x) the amount of any refunds of Performance
Liquidated Damages made to the EPC
Contractor in accordance with Section
3.7.4(a) of the Depositary Agreement and
(y) the amount of such Performance
Liquidated Damages used by Cordova Energy to
complete the Cordova Energy Project in
accordance with an Approved Completion
Plan), such Performance Liquidated Damages
less (x) the amount of any refunds of
Performance Liquidated Damages made to the
EPC Contractor in accordance with Section
3.7.4(a) of the Depositary Agreement and (y)
the amount of such Performance Liquidated
Damages used by Cordova Energy to complete
the Cordova Energy Project in accordance
with an Approved Completion Plan shall be
available for such redemption; provided,
however, that the Funding Corporation will
not be required to redeem Outstanding
Initial Securities as described in this
clause (i) if a Ratings Reaffirmation is
|
issued with respect to the event triggering the obligation to redeem Outstanding Initial Securities under this subclause (i).
The Funding Corporation and Cordova Energy
will be permitted to take such actions as
requested by the Rating Agencies (including,
without limitation, the redemption of a
lesser amount of Outstanding Initial
Securities than as described in this clause
(i)) to obtain such Ratings Reaffirmation; or
(ii) Cordova Energy and/or the Collateral Agent receives an El Paso Termination Payment, then the total amount of such El Paso Termination Payment shall be used for such redemption.
(b) Outstanding Securities shall be redeemed, pro rata among all series of Outstanding Securities in whole or in part, prior to maturity, at a redemption price equal to the principal amount of the Outstanding Securities being redeemed, together with interest on the principal amount of the Outstanding Securities being redeemed accrued to but not including the Redemption Date, if:
(i) Cordova Energy and/or the Collateral Agent receives more than $5,000,000 of Loss Proceeds because of a single Loss Event and Cordova Energy determines not to use such Loss Proceeds to rebuild, repair or restore the Cordova Energy Project, then such Loss Proceeds shall be available for such redemption;
(ii) Cordova Energy and/or the Collateral Agent receives Loss Proceeds because of a single Loss Event and more than $5,000,000 of such Loss Proceeds remain after Cordova Energy uses a portion of such Loss Proceeds to rebuild, repair or restore the Cordova Energy Project, such remaining Loss Proceeds shall be available for such redemption;
(iii) Cordova Energy and/or the Collateral Agent receives more than $5,000,000 of Title Insurance Proceeds because of a single Title Defect and Cordova Energy determines not to use such Title Insurance Proceeds to correct such Title Defect, then such Title Insurance Proceeds shall be made available for such redemption; or
(iv) Cordova Energy and/or the Collateral Agent receives Title Insurance Proceeds because of a single Title Defect and more than $5,000,000 of such Title Insurance Proceeds remain after Cordova Energy uses a portion of such Title Insurance Proceeds to correct such Title Defect, then such remaining Title Insurance Proceeds shall be available for such redemption;
provided, however, that the Funding Corporation will not be required to redeem
Outstanding Securities as described in clauses (i) through (iv) of this Section
3.3(b) if a Ratings Reaffirmation is issued with respect to the event triggering
the obligation to redeem Outstanding Securities. The Funding Corporation and
Cordova Energy will be permitted to take such actions as requested by the Rating
Agencies (including, without limitation, the redemption of a lesser amount of
Outstanding Securities than as described in clauses (i) through (iv) of this
Section 3.3(b)) to obtain such Ratings Reaffirmation.
(c) The amounts available for redemption described in clauses
(i) and (ii) of Section 3.3(a) and clauses (i) through (iv) of Section 3.3(b)
shall be subject to reduction by the amount of distributions made by the
Securities Intermediary for purposes other than any such redemption, acting upon
instructions from the Collateral Agent, in accordance with clauses (i), (ii) and
(iii) of Section 3 of the Intercreditor Agreement. All monies received by the
Trustee from the Securities Intermediary for any such redemption pursuant to
clauses (ii) and (iii) of Section 3 of the Intercreditor Agreement shall be
deposited in the Mandatory Redemption Fund and applied by the Trustee to the
redemption of Outstanding Securities as and to the extent provided in this
Article III, the Intercreditor Agreement and the Depositary Agreement.
(d) The Redemption Date for any redemption made pursuant to
Section 3.3(a) or 3.3(b) shall be any date selected by the Trustee during the
45-day period following the receipt by the Trustee of a distribution from the
Securities Intermediary for any such redemption pursuant to Section 3 of the
Intercreditor Agreement.
(e) If requested in writing to the Trustee and the Funding Corporation by any Holder within twenty (20) days of receipt by such Holder of a notice of a Change of Control pursuant to the last sentence of this clause (e), the Outstanding Securities owned by such Holder shall be redeemed prior to maturity, as a whole or in part, at a Redemption Price equal to 101% of the principal amount of the Outstanding Securities being redeemed plus accrued and unpaid interest on the principal amount of the Outstanding Securities being redeemed to but not including the Redemption Date. Within thirty (30) Business Days after any such request by a Holder, the Funding Corporation shall pay to the Trustee for deposit in the Mandatory Redemption Fund an amount of funds sufficient to redeem the Outstanding Securities subject to such request. The Trustee shall apply all such funds received by it to the redemption of the Outstanding Securities pursuant to this Section 3.3(e) as soon as practicable after the receipt by the Trustee of such funds in accordance with written allocation instructions from the Funding Corporation provided to the Trustee in accordance with the notice provisions set forth in this Article III. Within thirty (30) days of the occurrence of any Change of Control, the Funding Corporation shall provide notice of such Change of Control to the Trustee and the Trustee shall provide a notice of such Change of Control to Holders in accordance with the terms of this Indenture.
(f) Upon any mandatory redemption of the Securities of any series in accordance with this Section 3.3, the scheduled principal amortization of the Securities of such series as set forth on Schedule I hereto shall be reduced by an amount equal to the product of (x) the scheduled principal amortization of the Securities of such series then in effect, multiplied by (y) a fraction, the numerator of which is equal to the principal amount of the Outstanding Securities of such series to be redeemed and the denominator of which is the principal amount of the Outstanding Securities of such series immediately prior to such redemption.
(g) Except as otherwise specified herein or in the Supplemental Indenture relating thereto, if less than all the Securities of a series are to be redeemed pursuant to this Section 3.3, the Securities of such
series shall be redeemed ratably by the Trustee from the Outstanding Securities of such series not previously called for redemption in whole, by such method as the Trustee shall deem appropriate.
(h) The Trustee shall promptly notify the Funding Corporation in writing of the Securities selected for redemption and, in the case of any Securities to be redeemed in part, the principal amount thereof to be redeemed.
(i) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities that has been or is to be redeemed.
SECTION 3.4 Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 12.6 hereof to Holders of Securities
of the series to be redeemed at least thirty (30) days but not more than sixty
(60) days prior to the Redemption Date. All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of Securities to be redeemed in part, the principal amount of such Securities to be redeemed and that after the Redemption Date upon surrender of any such Securities, new Securities in the aggregate principal amount equal to the unredeemed portion thereof will be issued;
(e) that, except in the case of partial redemption of any Initial Security, Securities called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that (unless the Funding Corporation shall default in payment of the Redemption Price) interest thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered for payment of the Redemption Price;
(h) that the availability in the Mandatory Redemption Fund on the Redemption Date of an amount of immediately available funds to pay the Redemption Price in full is a condition precedent to the redemption;
(i) the paragraph of the Securities pursuant to which the Securities are being redeemed; and
(j) the private placement number or CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the election of the Funding Corporation shall be given by the Funding Corporation or, at the Funding Corporation's written request, by the Trustee in the name and at the expense of the Funding Corporation. Notice of a mandatory redemption of the Securities shall be given by the Trustee, in the name and at the expense of the Funding Corporation.
With respect to mandatory redemption pursuant to Section 3.3 hereof, notice of redemption may be given by the Trustee prior to receipt of funds sufficient to pay the Redemption Price.
The notice if mailed in the manner herein provided shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.
SECTION 3.5 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, and the conditions, if any, set forth in such notice having been satisfied, the Securities or portions thereof so to be redeemed shall, on the Redemption Date, become due and payable, and from and after such date such Securities or portions thereof shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with such notice, an amount in respect of such Security or portion thereof shall be paid as provided therein; provided, however, that any payment of interest on any Security the Scheduled Payment Date of which is on or prior to the Redemption Date shall be payable to the Holder of such Security registered as such at the close of business on the related Record Date according to the terms of such Security.
SECTION 3.6 Securities Redeemed in Part. Except in the case of the Initial Securities, any Security that is to be redeemed only in part shall be surrendered at the place of payment therefor (with, if the Funding Corporation or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Funding Corporation and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Funding Corporation shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities of the same series, of any Authorized Denomination requested by such Holder and of like tenor and in aggregate principal amount equal to and in exchange for the remaining unpaid principal amount of the Security so surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Principal of and Interest on Securities. The Funding Corporation shall promptly pay or cause to be paid the principal of, premium (if any) and interest on every Security issued hereunder according to the terms hereof and thereof.
SECTION 4.2 Reporting Requirements. The Funding Corporation
shall furnish to the Trustee, the Rating Agencies and, in the case of clauses
(a) and (b) of this Section 4.2, any Holder or any owner of a beneficial
interest in an Initial Security upon request (which request may indicate that it
is a Continuing Request):
(a) within 60 days after the end of the first, second and third fiscal quarters of the Funding Corporation and Cordova Energy (commencing with the quarter ending March 31, 2000, an unaudited balance sheet of each of the Funding Corporation and Cordova Energy as of the end of such quarter and the related statements of operations, income, cash flows and changes in shareholder's equity for such quarter and for the portion of the fiscal year ending with the last day of such quarter (prepared on a basis consistent (other than with respect to changes in the accounting methods of the Funding Corporation or Cordova Energy, as the case may be) with that used in the preparation of corresponding figures for the preceding fiscal year), setting forth in each case in comparative form corresponding unaudited figures from the preceding fiscal year and accompanied by an Officer's Certificate to the effect that such financial statements fairly present the financial condition and results of operations of the Funding Corporation and Cordova Energy on the dates and for the periods indicated in accordance with GAAP;
(b) within 120 days after the end of each fiscal year of the Funding Corporation and Cordova Energy (commencing with the fiscal year ended December 31, 1999), a balance sheet of each of the Funding Corporation and Cordova Energy as of the end of such year and the related statements of operations, income, cash flows and changes in shareholder's equity for such fiscal year (prepared on a basis consistent (other than with respect to changes in the accounting methods of the Funding Corporation or Cordova Energy, as the case may be) with that used in the preparation of corresponding figures for the preceding fiscal year) setting forth in each case in comparative form corresponding figures from the preceding fiscal year and accompanied by (i) an audit opinion thereon by Deloitte & Touche LLP or another firm of independent public accountants of recognized national standing, which opinion shall state that said financial statements of the Funding Corporation and Cordova Energy present fairly, in all material respects, the financial position of the Funding Corporation and Cordova Energy at the end of, and for, such fiscal year in accordance with GAAP, and (ii) an Officer's Certificate stating that no Default or Event of Default has occurred and is continuing, or that if a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof;
(c) promptly and in any event within 15 Business Days after a Responsible Officer of Funding Corporation receives actual knowledge thereof, written notice of the occurrence of any event or condition which constitutes an Event of Default, specifically stating that such event or condition has occurred and describing it and any action being, or proposed to be, taken with respect thereto; and
(d) promptly and in any event within 15 Business Days after delivery to the Funding Corporation of a notice of any Credit Agreement Event of Default, a copy of such notice.
SECTION 4.3 Corporate Existence. The Funding Corporation shall, subject to Section 4.12:
(a) maintain its existence as a corporation in good standing in the State of Delaware, and
(b) maintain its rights, powers and privileges that are necessary for the issuance of the Securities, except in each case where the failure to do so would not reasonably be expected to result in a Material Adverse Effect;
provided that the Funding Corporation may change its form of organization if the entity in its new form assumes all of the obligations of the Funding Corporation under the Financing Documents and the change does not increase the Indebtedness of the Funding Corporation.
SECTION 4.4 Compliance with Laws. The Funding Corporation shall comply with all valid and applicable Laws (including Environmental Laws) relating to the Funding Corporation's issuance of the Securities and the performance of its obligations hereunder, except (x) where the failure to so comply would not reasonably be expected to result in a Material Adverse Effect, or (y) where such compliance is being diligently contested in good faith by appropriate proceedings and adequate reserves have been established in connection therewith in accordance with GAAP.
SECTION 4.5 Governmental Approvals. The Funding Corporation
shall obtain, maintain and comply with all material Governmental Approvals which
are required for the conduct of its business, except (x) where the failure to do
so would not reasonably be expected to result in a Material Adverse Effect or
(y) where such compliance is being diligently contested in good faith by
appropriate proceedings and adequate reserves have been established in
connection therewith in accordance with GAAP.
SECTION 4.6 Payment of Taxes and Claims. The Funding Corporation shall, prior to the time penalties shall attach thereto, pay and discharge or cause to be paid and discharged all taxes lawfully imposed upon it; provided that the Funding Corporation shall not be required to pay any such obligation (x) if the same is being diligently contested in good faith by appropriate proceedings and adequate reserves are established in accordance with GAAP or (y) the nonpayment of which would not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.7 Books and Records. The Funding Corporation shall at all times keep proper books and records of all of its business and financial affairs in accordance with GAAP.
SECTION 4.8 Use of Proceeds. The Funding Corporation shall use the proceeds from the sale of Securities solely to make one or more loans to one or more Guarantors pursuant to one or more Credit Agreements, or supplements thereto, as the case may be, except to the extent otherwise permitted under this Indenture.
SECTION 4.9 Indebtedness. The Funding Corporation shall not incur any Indebtedness other than the following ("Permitted Funding Debt"):
(a) the Initial Securities and any Exchange Securities;
(b) Indebtedness outstanding on the Closing Date;
(c) any Additional Securities issued in accordance with the provisions of Section 2.3 hereof and related Exchange Securities;
(d) surety bonds, performance bonds or similar arrangements with third-party sureties, indemnitors or similar persons obtained or made in connection with a good faith contest;
(e) Indebtedness incurred under any Debt Service Reserve LOC Reimbursement Agreement;
(f) Subordinated Indebtedness issued by an Affiliate of the Funding Corporation;
(g) Indebtedness incurred under any Working Capital Facility in an aggregate outstanding amount not to exceed $5,000,000 at any one time (such amount to be escalated annually in accordance with increases in the Consumer Price Index);
(h) Indebtedness incurred under Interest Rate Protection Agreements entered into in order to provide a hedge against changes in the rates of interest on Permitted Funding Debt which accrues interest at a floating or variable rate; provided that the notional amount of the obligations subject to any such Interest Rate Protection Agreement shall at no time exceed the aggregate principal amount of Permitted Funding Debt which accrues interest at a floating or variable rate;
(i) obligations incurred in connection with Permitted Hedging Transactions;
(j) Indebtedness in an outstanding amount not to exceed $20,000,000 at any one time (such amount to be escalated annually in accordance with increases in the Consumer Price Index);
(k) guarantees of Permitted Funding Debt, Permitted Cordova Energy Debt or any Indebtedness of an Additional Guarantor which is permitted to be incurred by such Additional Guarantor under an Additional Credit Agreement entered into by such Additional Guarantor;
(l) Indebtedness incurred to finance Required Modifications, so long as either:
(i) the Independent Engineer confirms (with customary assumptions and qualifications) as reasonable a certification from an Athorized Officer of the Funding Corporation to the Trustee (with customary assumption and quali- fications) that the minimum annual projected Debt Service Coverage Ratio during the remaining term of the Securities, after taking into account the incurrence of such Indebtedness, is reasonably expected to be equal to or greater than:
(1) 1.2 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be 100%,
(2) 1.25 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 75% but less than 100%,
(3) 1.35 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 50% but less than 75%,
(4) 1.40 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 25% but less than 50%, and
(5) 1.5 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be less than 25%; or
(ii) the Funding Corporation obtains a Ratings Reaffirmation with respect to the incurrence of such Indebtedness;
(m) Indebtedness incurred to finance Optional Modifications, so long as:
(i) the Independent Engineer confirms (with customary assumptions and qualifications) as reasonable a certification from an Authorized Officer of the Funding Corporation to the Trustee (with customary assumptions and qualifications) that:
(x) the minimum annual projected Debt Service Coverage Ratio during the remaining term of the Securities, after taking into account the incurrence of such Indebtedness, is reasonably expected to be equal to or greater than,
(1) 1.4 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be 100%,
(2) 1.55 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 75% but less than 100%,
(3) 1.7 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 50% but less than 75%,
(4) 1.85 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 25% but less than 50%, and
(5) 2.0 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be less than 25%; and
(y) the average annual projected Debt Service Coverage Ratio during the remaining term of the Securities, after taking into account the incurrence of such Indebtedness, is reasonably expected to be equal to or greater than:
(1) 1.4 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be 100%,
(2) 1.6 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 75% but less than 100%,
(3) 1.8 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 50% but less than 75%,
(4) 2.0 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be equal to or greater than 25% but less than 50%, and
(5) 2.25 to 1.0, if the PPA Factor during the remaining term of the Securities is reasonably expected to be less than 25%; and
(ii) the Funding Corporation obtains a Ratings Reaffirmation with respect to the incurrence of such Indebtedness;
(n) Indebtedness incurred to finance Expansion Modifications, so long as the Funding Corporation obtains a Ratings Reaffirmation with respect to the incurrence of such Indebtedness; provided that if an incurrence of Indebtedness falls within more than one of the categories of Permitted Funding Debt described above, the Funding Corporation may elect which category (or categories) of Permitted Funding Debt in which to include such issuance; and
(o) Indebtedness in addition to the foregoing, so long as, after giving effect to the incurrence of such Indebtedness, the Funding Corporation receives confirmation that the Securities are rated at least "Baa3" by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings) and at least "BBB-" by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings); provided that any Additional Securities issued for the purpose described in Section 2.3(c)(iv) shall satisfy the conditions set forth in such Section.
SECTION 4.10 Business Activities. The Funding Corporation shall not conduct any business other than the incurrence of Permitted Funding Debt and activities incidental thereto, except (a) as contemplated by the Transaction Documents and (b) Permitted Hedging Transactions.
SECTION 4.11 Liens. The Funding Corporation shall not create, suffer to exist or permit any Lien upon or with respect to any of its properties except for Permitted Liens.
SECTION 4.12 Fundamental Changes. The Funding Corporation
shall not consolidate or merge with or into any other Person, unless (a) the
Funding Corporation is the surviving corporation and (b) both immediately before
and after such transaction, no Default or Event of Default shall have occurred
and be continuing; provided that the Funding Corporation may merge or
consolidate with or transfer all or substantially all of its assets to an
Affiliate that has no significant assets or liabilities and was formed solely
for the purpose of changing the jurisdiction or form of organization of the
Funding Corporation, so long as (x) the amount of Indebtedness of the Funding
Corporation is not increased thereby, (y) such Affiliate assumes all obligations
of the Funding Corporation under the Financing Documents and (z) any such merger
or consolidation does not cause a significant modification of the Securities
(including any change in the obligor on the Securities) as determined under
Section 1001 of the Code.
SECTION 4.13 Transactions with Affiliates. The Funding Corporation shall not enter into any transaction or arrangement with any Affiliate, except (a) transactions or arrangements existing on the Closing Date or transactions or arrangements entered into in substitution therefor, (b) transactions or arrangements which are on terms that are no less favorable to the Funding Corporation than terms in a comparable arm's-length transaction by the Funding Corporation with a person that is not an Affiliate, or (c) Approved Regulated Affiliate Transactions.
SECTION 4.14 Amendments to the Cordova Energy Credit Agreement and Cordova Energy Project Note.
(a) The Funding Corporation shall not consent to, enter into or grant any amendment, waiver, consent, change or modification to the Cordova Energy Credit Agreement or the Cordova Energy Project Note, except as in compliance with Section 7.3.
(b) The Funding Corporation will enforce all of its rights under the Cordova Energy Credit Agreement and the Cordova Energy Project Note for the benefit of the Trustee and Holders. The Funding Corporation shall exercise all remedies under the Cordova Energy Credit Agreement and the Cordova Energy Project Note (including acceleration of the Cordova Energy Project Note) as directed by the Required Holders (or, in the case of an acceleration of the Securities following an Event of Default under Section 5.1(a), the Holders of at least 33" in aggregate principal amount of the Outstanding Securities), in accordance with the terms hereof and the Intercreditor Agreement.
SECTION 4.15 Non-Consolidation. If (a) the rating assigned to MidAmerican Holdings' long-term senior unsecured debt obligations by S&P is reduced to below "BBB-" or (b) Holders representing more than 50% of the Outstanding Securities shall instruct the Trustee to direct the Funding Corporation to take such action, and in each case the Funding Corporation shall determine in its sole discretion that (x) not taking such action would result in the Ratings then assigned to the Securities by S&P to be reduced to below "BBB-" or (y) taking such action would result in the Ratings then assigned to the Securities by S&P to be increased to "BBB-" or better, then the Funding Corporation shall use its reasonable best efforts (provided that the Funding
Corporation shall not be required to expend unreasonable amounts of money) to take any action reasonably requested by S&P to institute, within ninety (90) days after the occurrence of the event specified in clause (a) or (b), the customary requirements (as are being generally recommended or required by S&P for such purposes for similarly structured transactions as of the date of this Indenture) for the assets of the Funding Corporation not to be substantively consolidated with the assets of MidAmerican Holdings in the event of a bankruptcy or insolvency of MidAmerican Holdings, including the appointment of one (but not more than one) independent director of the Funding Corporation; provided, however, that this provision shall not in any event be interpreted as a representation or warranty by the Funding Corporation that a bankruptcy court would not rule that the assets of the Funding Corporation would be substantively consolidated with the assets of MidAmerican Holdings in the event of a bankruptcy or insolvency of MidAmerican Holdings.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1 Events of Default Defined. The term "Event of Default," whenever used herein, shall mean any of the following events (whatever the reason for such event and whether it shall be voluntary or involuntary or come about or be affected by operation of Law, or be pursuant to or in compliance with any applicable Law), and any such event shall continue to be an Event of Default if and for so long as it shall not have been cured, remedied or waived:
(a) failure by the Funding Corporation to pay or cause to be paid any principal of, premium, if any, or interest on any Security when the same becomes due and payable, whether by scheduled maturity or required redemption or by acceleration or otherwise, and such failure continues uncured for 15 or more days;
(b) a Credit Agreement Event of Default (other than a Credit Agreement Event of Default under Section 5.1(a) of the Cordova Energy Credit Agreement) shall have occurred and be continuing;
(c) failure by the Funding Corporation to comply with the covenants described under Sections 4.9, 4.10 and 4.12 and such failure continues uncured for a period of 30 or more days from the date on which a Responsible Officer of the Funding Corporation receives actual knowledge thereof;
(d) failure by the Funding Corporation to comply with any of its other covenants contained in this Indenture and such failure continues uncured for a period of 30 or more days from the date on which a Responsible Officer of the Funding Corporation receives actual knowledge thereof; provided that if the Funding Corporation commences and diligently pursues efforts to cure (or to cause to be cured) such default within such 30-day period, the Funding Corporation may continue to effect (or cause) such cure and such default will not be deemed an Event of Default for an additional 180 days so long as the Funding Corporation is diligently pursuing (or causing) such cure;
(e) the Funding Corporation shall (i) apply for or consent to
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as
such debts become due, (iii) make a general assignment for the benefit of its
creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code, (v)
file a petition seeking to take advantage of any other Law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or
readjustment of debts, (vi) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Federal Bankruptcy Code, or (vii) take any action for
the purpose of effecting any of the foregoing;
(f) a proceeding or case shall be commenced without the application or consent of the Funding Corporation in any court of competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution, winding-up or the composition or readjustment of debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of the Funding Corporation under any Law relating to bankruptcy, insolvency, reorganization, winding-up or the composition or readjustment of debts, or (iii) the appointment of a trustee, receiver, custodian, liquidator or the like of the Funding Corporation under any Law relating to bankruptcy, insolvency, reorganization, winding-up or composition or readjustment of debts, and such proceeding or case shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a period of ninety (90) or more consecutive days, or any order for relief against the Funding Corporation shall be entered in an involuntary case under the Federal Bankruptcy Code;
(g) any Security Document pursuant to which the Collateral Agent is purported to have been granted a Lien on any Funding Corporation Collateral ceases to be in full force and effect or any security interest granted thereunder ceases to be a valid and perfected Lien in favor of the Collateral Agent with the priority purported to be created thereby; provided that the Funding Corporation shall have 30 days from the date on which a Responsible Officer of the Funding Corporation receives actual knowledge of such cessation to cure (or to cause to be cured) any such cessation or to furnish the Collateral Agent with all documents and instruments required to cure (or to cause the cure of) any such cessation;
(h) any event of default under any issuance of Permitted Funding Debt (other than the Indebtedness incurred under this Indenture) in excess of $10,000,000 causes such Permitted Funding Debt to become due and payable prior to its stated maturity;
(i) failure by the Funding Corporation to pay any final, non-appealable judgment for the payment of money in excess of $10,000,000 (exclusive of amounts covered by insurance or indemnity), which judgment is not discharged or stayed within 90 days after the entry thereof; or
(j) any representation or warranty made by the Funding Corporation in any Financing Document, or in any certificate or other document furnished to any Person in accordance with the terms of the Financing Documents, shall prove to have been false or misleading in any respect as of the time made, and the fact, event or circumstance that gave rise to such misrepresentation has
resulted in, or is reasonably expected to result in, a Material Adverse Effect and such misrepresentation or such Material Adverse Effect shall continue uncured for 30 or more days from the date on which a Responsible Officer of the Funding Corporation receives actual knowledge thereof; provided that if the Funding Corporation commences efforts to cure (or to cause to be cured) such misrepresentation by curing (or causing to be cured) the factual situation resulting in such misrepresentation or such Material Adverse Effect within such 30-day period, the Funding Corporation may continue to effect (or cause) such cure, and such misrepresentation shall not be deemed an Event of Default, for an additional 60 days so long as the Funding Corporation is diligently pursuing (or causing) such cure.
SECTION 5.2 Enforcement of Remedies.
(a) If one or more Events of Default shall have occurred and be continuing, then, subject to the terms and provisions of the Intercreditor Agreement and the Security Documents:
(i) if an Event of Default described in
subsection 5.1(a) hereof has occurred and is
continuing:
(A) the Trustee shall, upon the
direction of Holders of at least 33%
in aggregate principal amount of
the Outstanding Securities, by
written notice to the Funding
Corporation, declare the entire
principal amount of the Outstanding
Securities, all interest accrued
and unpaid thereon and all other
amounts payable under this Inden-
ture, if any, to be due and payable,
whereupon the same shall become
immediately due and payable without
presentment, demand, protest or
further notice of any kind, all of
which are hereby waived to the
extent permitted by applicable law;
and
(B) if in the good faith exercise of its
discretion the Trustee determines
that such action is necessary to
protect the interests of Holders,
the Trustee may, by written notice
to the Funding Corporation, declare
the entire principal amount of the
Outstanding Securities, all interest
accrued and unpaid thereon and all
other amounts payable under this
Indenture, if any, to be due and
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payable, notwithstanding the absence
of direction from Holders pursuant
to Section 5.2(a)(i)(A), unless
Holders of more than 66% in
aggregate principal amount of the
Outstanding Securities direct the
Trustee not to accelerate the
maturity of the Securities; provided
that the Trustee is under no obliga-
tion to seek or obtain direction
from Holders as described in this
clause (B);
(ii) in the case of an Event of Default described
in subsection 5.1(b) hereof (other than an
Event of Default under Section 5.1(d) of the
Cordova Energy Credit Agreement):
(A) the Trustee shall, upon the
direction of Holders of more than
50% in aggregate principal amount of
the Outstanding Securities, by
written notice to the Funding
Corporation, declare a principal
amount of the Outstanding Securities
which is equal to the outstanding
principal amount of the Cordova
Energy Project Note, all interest
accrued and unpaid thereon and all
other amounts payable under this
Indenture, in respect of the Cordova
Energy Project Note, if any, to
be due and payable, whereupon the
same shall become immediately due
and payable without presentment,
demand, protest or further notice of
any kind, all of which are hereby
waived to the extent permitted by
applicable law; and
(B) if in the good faith exercise of its
discretion the Trustee determines
that such action is necessary to
protect the interests of Holders,
the Trustee may, by written notice
to the Funding Corporation, declare
a principal amount of the Out-
standing Securities which is equal
to the outstanding principal amount
of the Cordova Energy Project Note,
all interest accrued and unpaid
thereon and all other amounts
payable under this Indenture in
respect of the Cordova Energy
Project Note, if any, to be due and
payable notwithstanding the absence
of direction from Holders pursuant
to Section 5.2(a)(ii)(A), unless
Holders of more than 50% in
|
aggregate principal amount of the Outstanding Securities direct the Trustee not to accelerate the maturity of such Securities; provided that the Trustee is under no obligation to seek or obtain direction from Holders as described in this clause (B);
(iii) in the case of an Event of Default described
in subsection 5.1(b) hereof resulting from
a Credit Agreement Event of Default under
Section 5.1(d) of the Cordova Energy Credit
Agreement, a principal amount of the Out-
standing Securities (on a pro rata basis
with respect to each series of Securities)
which is equal to the outstanding
principal amount of the Cordova Energy
Project Note automatically accelerated in
connection with such Event of Default, all
interest accrued and unpaid thereon and
all other amounts payable under this
Indenture in respect of the Cordova Energy
Project Note, if any, will become
immediately due and payable without
presentment, demand, protest or further
notice of any kind, all of which are hereby
waived to the extent permitted by
applicable law; and
(iv) in the case of an Event of Default described
in Sections 5.1(e) and 5.1(f), the entire
principal amount of the Outstanding
Securities, all interest accrued and unpaid
thereon and all other amounts payable under
this Indenture, if any, shall automatically
become immediately due and payable without
presentment, demand, protest or further
notice of any kind, all of which are hereby
waived to the extent permitted by
applicable law;
(v) in the case of any other Event of Default:
(A) the Trustee shall, upon the direction
of Holders of more than 50% in aggre-
gate principal amount of the Out-
standing Securities, by written
notice to the Funding Corporation,
declare the entire principal amount
of the Outstanding Securities, all
interest accrued and unpaid thereon
and all other amounts payable under
this Indenture, if any, to be due
|
and payable, whereupon the same shall become immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby waived to the extent permitted by applicable law; and
(B) if in the good faith exercise of its discretion the Trustee determines that such action is necessary to protect the interests of Holders,
the Trustee may, by written notice to
the Funding Corporation, declare the
entire principal amount of the Out-
standing Securities, all interest
accrued and unpaid thereon and all
other amounts payable under this
Indenture, if any, to be due and
payable notwithstanding the absence
of direction from Holders pursuant to
Section 5.2(a)(iv)(A), unless Holders
of more than 50% in aggregate
principal amount of the Outstanding
Securities direct the Trustee not to
accelerate the maturity of the
Securities; provided that the Trustee
is under no obligation to seek or
obtain direction from Holders as
described in this clause (B);
(vi) if (A) an Event of Default described in
Section 5.1(a) shall have occurred and be
continuing, (B) Outstanding Securities shall
have been accelerated in accordance with
clause (i) of this Section 5.2(a) and (C) a
Guarantee Event of Default shall have
occurred and be continuing under the
Cordova Energy Guarantee the Trustee may, by
written notice to the Funding Corporation,
as directed by Holders of at least 33% of
the Outstanding Securities, direct the
Collateral Agent to take possession of the
Collateral and to sell the Collateral, as
and to the extent permitted under the
Intercreditor Agreement and the Security
Documents;
(vii) if (A) an Event of Default described in
Section 5.1(b) (other than a Credit
Agreement Event of Default under Section
5.1(a) or 5.1(d) of the Cordova Energy
Credit Agreement) shall have occurred and be
continuing and (B) Outstanding Securities
shall have been accelerated in accordance
with clause (ii) of this Section 5.2(a), the
Trustee may, by written notice to the
Funding Corporation, as directed by Holders
of more than 50% of the Outstanding
Securities, direct the Collateral Agent to
take possession of the Cordova Energy
Collateral and to sell the Cordova Energy
Collateral, as and to the extent permitted
under the Intercreditor Agreement and the
Security Documents;
(viii) if (A) an Event of Default described in
Section 5.1(e) and (f) shall have occurred
and be continuing and (B) Outstanding
Securities shall have been accelerated in
accordance with clause (iv) of this Section
5.2(a), the Trustee may, as directed by
Holders of more than 50% of the Outstanding
Securities, direct the Collateral Agent to take possession of the Collateral and to sell the Collateral, as and to the extent permitted under the Intercreditor Agreement and the Security Documents;
(ix) if (A) an Event of Default described in
Section 5.1(b) resulting from a Credit
Agreement Event of Default under Section
5.1(d) of the Cordova Energy Credit Agree-
ment and (B) Outstanding Securities shall
have been accelerated in accordance with
clause (iii) of this Section 5.2(a), the
Trustee may, as directed by Holders of more
than 50% of the Outstanding Securities,
direct the Collateral Agent to take posses-
sion of the Cordova Energy Collateral and to
sell such Cordova Energy Collateral, as and
to the extent permitted under the Inter-
creditor Agreement and the Security
Documents; and
(x) in the case of (A) an Event of Default other than the Events of Default described in clauses (vi), (vii), (viii) and (ix) and (B) Outstanding Securities shall have been accelerated in accordance with clause (v) of this Section 5.2(a), the Trustee may, by written notice to the Funding Corporation, as directed by Holders of more than 50% of the Outstanding Securities, direct the Collateral Agent to take possession of the Collateral and to sell the Collateral, as and to the extent permitted under the Inter- creditor Agreement and the Security Documents.
For the avoidance of doubt, if an Event of Default described in Section 5.1(b) shall have occurred and be continuing, subject to the other provisions of this Indenture, (i) only a principal amount of the Outstanding Securities equal to the outstanding principal amount of the Project Note issued by the Guarantor party to the Credit Agreement causing such Event of Default may be accelerated, and (ii) the Trustee may not direct the Collateral Agent to take possession of any collateral other than the Collateral pledged to secure the Guarantee issued by such Guarantor.
(b) At any time after the principal of the Securities shall have become due and payable upon a declared acceleration as provided herein, and before any judgment or decree for the payment of the money so due, or any portion thereof, shall be entered, the Required Holders by written notice to the Funding Corporation and the Trustee, may rescind and annul such declaration and its consequences if:
(i) there shall have been paid to or deposited with the Trustee a sum sufficient to pay:
(A) all overdue installments of interest on the Securities;
(B) the principal of and premium (if any) on any Securities that have become due other than by such declaration of acceleration and interest thereon at the respective rates provided in the Securities for late payments of principal;
(C) to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the respective rates provided in the Securities for late payments of interest; and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal of the Securities that has become due solely by such acceleration, have been cured or waived as provided in Section 5.7 hereof.
No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereon.
SECTION 5.3 Specific Remedies. Subject to Section 10.2 hereof, if any Event of Default shall have occurred and be continuing or if any Default under Section 5.1(a) shall have occurred and be continuing, the Trustee, subject to the provisions of Sections 5.2, 5.5 and 5.6 hereof, shall enforce the Cordova Energy Guarantee and the rights of Holders thereunder.
SECTION 5.4 Judicial Proceedings Instituted by Trustee.
(a) Trustee May Bring Suit. Subject to the terms of the Intercreditor Agreement, if an Event of Default shall have occurred and be continuing, then the Trustee, in its own name, and as trustee of an express trust, subject to the provisions of Section 5.2 hereof, shall be entitled and empowered to institute any suits, actions or proceedings at Law, in equity or otherwise, for the collection of the sums so due and unpaid on the Securities, and may prosecute any such claim or proceeding to judgment or final decree, and, subject to the Intercreditor Agreement with respect to the Collateral, may enforce any such judgment or final decree and collect the moneys adjudged or decreed to be payable in any manner provided by Law, whether before or after or during the pendency of any proceedings for the enforcement of any of the Trustee's rights or the rights of Holders under this Indenture, and such power of the Trustee shall not be affected by any sale hereunder or by the exercise of any other right, power or remedy for the enforcement of the provisions of this Indenture.
(b) Trustee May Recover Unpaid Indebtedness after Sale of Collateral. Subject to Section 5.14 hereof and the terms of the Intercreditor Agreement, in the case of a sale of the Collateral and of the application of the proceeds of such sale to the payment of the Indebtedness secured by this Indenture, the Trustee in its own name, and as trustee of an express trust, shall be entitled and empowered, by any appropriate means, legal, equitable or otherwise, to enforce payment of, and to receive all amounts then remaining due and unpaid upon, all or any of the Securities, for the benefit of Holders thereof, and upon any other portion of the Securities remaining unpaid, with interest at the rates specified in the respective Securities on the overdue principal of and premium (if any) and (to the extent that payment of such interest is legally enforceable) on the overdue installments of interest.
(c) Recovery of Judgment Does Not Affect Rights. No recovery of any such judgment or final decree by the Trustee and no levy of any execution under any such judgment upon any of the Collateral, or upon any other property, shall in any manner or to any extent affect any rights, powers or remedies of the Trustee, or any liens, rights, powers or remedies of Holders, but all such liens, rights, powers or remedies shall continue unimpaired as before.
(d) Trustee May File Proofs of Claim; Appointment of Trustee as Attorney-in-Fact in Judicial Proceedings. Subject to Section 5.14 hereof and to the terms of the Intercreditor Agreement, the Trustee in its own name, or as trustee of an express trust, or as attorney-in fact for Holders, or in any one or more of such capacities (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand for the payment of overdue principal, premium (if any) or interest), shall be entitled and empowered to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of Holders (whether such claims be based upon the provisions of the Securities or of this Indenture) allowed in any equity, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or any other judicial proceedings relating to the Funding Corporation or any obligor on the Securities (within the meaning of the Trust Indenture Act), the creditors of the Funding Corporation or any such obligor, the Funding Corporation Collateral or any other property of the Funding Corporation or any such obligor and any receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel. Subject to the terms of the Intercreditor Agreement, the Trustee is hereby irrevocably appointed (and the successive respective Holders of the Securities, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) the true and lawful attorney-in-fact of the respective Holders, with authority to:
(i) make and file in the respective names of Holders (subject to deduction from any such claims of the amounts of any claims filed by
any of Holders themselves), any claim, proof
of claim or amendment thereof, debt, proof
of debt or amendment thereof, petition or
other document in any such proceeding and to
receive payment of any amounts distributable
on account thereof;
(ii) execute any such other papers and documents
and to do and perform any and all such acts
and things for and on behalf of such
Holders, as may be necessary or advisable
in order to have the respective claims of
the Trustee and of Holders against the
Funding Corporation or any such obligor,
|
the Collateral or any other property of the Funding Corporation or any such obligor allowed in any such proceeding; and
(iii) receive payment of or on account of such claims and debt; provided, however, that nothing contained in this Indenture shall be deemed to give to the Trustee any right to accept or consent to any plan of reorganiza- tion or otherwise by action of any character in any such proceeding to waive or change in any way any right of any Holder. Any moneys collected by the Trustee under this Section shall be applied as provided in Section 5.11 hereof.
(e) Trustee Need Not Have Possession of Securities. All proofs of claim, rights of action and rights to assert claims under this Indenture or under any of the Securities may be enforced by the Trustee without the possession of the Securities or the production thereof at any trial or other proceedings instituted by the Trustee. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture or the Securities to which the Trustee shall be a party) the Trustee shall be held to represent all Holders of the Securities and it shall not be necessary to make any such Holders parties to such proceedings.
(f) Suit to Be Brought for Ratable Benefit of Holders. Any suit, action or other proceeding at law, in equity or otherwise which shall be instituted by the Trustee under any of the provisions of this Indenture or the Securities shall be for the equal, ratable and common benefit of all Holders, subject to the provisions of this Indenture.
(g) Trustee May Be Restored to Former Position and Rights in Certain Circumstances. In case the Trustee shall have instituted any proceeding to enforce any right, power or remedy under this Indenture or the Securities by foreclosure, entry or otherwise, and such proceedings shall have been determined adversely to the Trustee, then and in every such case the Funding Corporation and the Trustee shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of the Trustee shall continue as if no such proceedings had been taken.
SECTION 5.5 Holders May Demand Enforcement of Rights by Trustee. Subject to Section 5.14 hereof, if any Event of Default shall have occurred and be continuing, the Trustee shall, subject to the terms of the Intercreditor Agreement, upon the written request of the Required Holders proceed to institute one or more suits, actions or proceedings at law, in equity or otherwise, or take any other appropriate remedy, to enforce payment of the principal of, or premium (if any) or interest on the Securities, or to deliver notice to the Collateral Agent in accordance with the Intercreditor Agreement requesting that the Collateral Agent foreclose under the Security Documents or to sell the Collateral under a judgment or decree of a court or courts of competent jurisdiction or under the power of sale granted in the Security Documents, or the Trustee may, subject to the terms of the Intercreditor Agreement, take such other appropriate legal, equitable or other remedy, as the Trustee, which may be advised by counsel, shall deem most effectual to protect and enforce any of the rights or powers of the Trustee or Holders, or, in case such Holders shall have requested a specific method of enforcement permitted hereunder, in the manner required, subject to the terms of the Intercreditor Agreement, provided that such action shall not be otherwise than in accordance with Law and the provisions of this Indenture, and the Trustee, subject to such indemnity provisions, shall have the right to decline to follow any such request if the Trustee in good faith shall determine that the suit, proceeding or exercise of remedies so requested would involve the Trustee in personal liability or expense.
SECTION 5.6 Control by Holders. The Required Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, provided that (i) such direction shall not be in conflict with any rule of Law or with this Indenture or the Intercreditor Agreement, and (ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
(b) The Required Holders shall have the right to direct the time, method and place of conducting any proceeding for any right or remedy available to the Funding Corporation under the Cordova Energy Credit Agreement and the Cordova Energy Project Note, provided that (i) upon the occurrence of an Event of Default described in Section 5.1(a), Holders of at least 33"% in aggregate principal amount of the Outstanding Securities have the right to cause the acceleration of the Cordova Energy Project Note, (ii) such direction shall not be in conflict with any rule of law or with this Indenture or the Intercreditor Agreement, and (ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 5.7 Waiver of Past Defaults or Events of Default. The Required Holders may on behalf of Holders of all Securities waive any past Default or Event of Default and its consequences except that (i) Holders of not less than 66"% in aggregate principal amount of the Outstanding Securities may on behalf of Holders of all Securities waive a Default or an Event of Default described in Section 5.1(a) and (ii) except as provided in clause (i), only Holders of all Outstanding Securities which are affected by the waiver may waive a Default or an Event of Default in respect of a covenant or provision hereof that under Section 7.2 hereof cannot be modified or amended without the consent of the Holder of each Security Outstanding affected. Upon any such waiver such Default shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture or the
Intercreditor Agreement, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 5.8 Holder May Not Bring Suit Under Certain Conditions. A Holder shall not have the right to institute any suit, action or proceeding at law or in equity or otherwise for the appointment of a receiver or for the enforcement of any other remedy under or upon this Indenture, unless:
(a) such Holder previously shall have given written notice to the Trustee of a continuing Event of Default;
(b) Holders of at least 25% in aggregate principal amount of the Outstanding Securities shall have requested the Trustee in writing to institute such action, suit or proceeding;
(c) the Trustee shall have refused or neglected to institute any such action, suit or proceeding for 30 days after receipt of such notice by the Trustee;
(d) no direction inconsistent with such written request shall have been given to the Trustee during such 30-day period by Holders of a majority in principal amount of Outstanding Securities; and
(e) the institution of such suit, action or proceeding is not prohibited by Section 5.14 hereof or by the Intercreditor Agreement.
It is understood and intended that no one or more of Holders
shall have any right in any manner whatever hereunder or under the Securities to
(i) surrender, impair, waive, affect, disturb or prejudice the Lien of the
Security Documents on any property subject thereto or the rights of Holders of
any other Securities, (ii) obtain or seek to obtain priority or preference over
any other Holder or (iii) enforce any right under this Indenture except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders subject to the provisions of this Indenture and the Intercreditor
Agreement.
SECTION 5.9 Undertaking to Pay Court Costs. All parties to
this Indenture, and each Holder by his acceptance of a Security, shall be deemed
to have agreed that any court may in its discretion require, in any suit, action
or proceeding for the enforcement of any right or remedy hereunder, or in any
suit against the Trustee for any action taken or omitted by it as Trustee
hereunder, the filing by any party litigant in such suit, action or proceeding
of any undertaking to pay the costs of such suit, action or proceeding, and that
such court may, in its discretion, assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, action or proceeding
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, however, that the provisions of this Section 5.9
shall not apply to (a) any suit, action or proceeding instituted by the Trustee,
(b) any suit, action or proceeding instituted by any Holder or group of Holders
holding in the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities or (c) any suit, action or proceeding instituted by any
Holder for the enforcement of the payment of the principal of, or premium (if
any) or interest on any of the Securities on or after the respective due dates
expressed therein.
SECTION 5.10 Right of Holders to Receive Payment Not to be Impaired. Anything in this Indenture to the contrary notwithstanding, the right of any Holder to receive payment of the principal of, premium (if any) and interest on, such Security, on or after the respective due dates expressed in such Security (or, in case of redemption, on the Redemption Date fixed for such Security), or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 5.11 Application of Moneys Collected by Trustee. Following the application of funds as provided in the Intercreditor Agreement, any money collected or to be applied by the Trustee pursuant to this Article V in respect of the Securities of a series, together with any other moneys which may then be held by the Trustee under any of the provisions of this Indenture as security for the Securities of such series (other than moneys at the time required to be held for the payment of specific Securities of such series at their stated maturities or at a time fixed for the redemption thereof) shall be applied in the following order from time to time, on the date or dates fixed by the Trustee and, in the case of a distribution of such moneys on account of principal, premium (if any) or interest, upon presentation of the Outstanding Securities of such series, and stamping thereon of payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: to the payment of all amounts due the Trustee or any predecessor Trustee under Section 10.7 hereof;
SECOND: in case the unpaid principal amount of the Outstanding Securities of such series or any of them shall not have become due, to the payment of any interest in default, in the order of the maturity of the payments thereof, with interest at the rates specified in the respective Securities of such series in respect of overdue payments (to the extent that payment of such interest shall be legally enforceable) on the payments of interest then overdue;
THIRD: in case the unpaid principal amount of a portion of the Outstanding Securities of such series shall have become due, first to the payment of accrued interest on all Outstanding Securities of such series in the order of the maturity of the payments thereof, with interest at the respective rates specified in the Securities of such series for overdue payments of principal, premium (if any) and (to the extent that payment of such interest shall be legally enforceable) interest then overdue, and next to the payment of the unpaid principal amount of all Securities of such series then due;
FOURTH: in case the unpaid principal amount of all the Outstanding Securities of such series shall have become due, first to the payment of the whole amount then due and unpaid on Outstanding Securities of such series for principal, premium (if any) and interest, together with interest at the respective rates specified in the Securities of such series for overdue payments on principal, premium (if any) and (to the extent that payment of such interest shall be legally enforceable) interest then overdue; and
FIFTH: in case the unpaid principal amount of all the Outstanding Securities of such series shall have become due, and all amounts payable in respect of such Outstanding Securities of such series, pursuant to clause Fourth of this Section 5.11, shall have been fully paid, any surplus then remaining shall be paid to the Funding Corporation, or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct;
provided, however, that all payments in respect of the Securities of a
series to be made pursuant to clauses "SECOND" through "FOURTH" of this
Section 5.11 shall be made ratably to Holders of Securities of such
series entitled thereto, without discrimination or preference, based
upon the ratio of (i) the unpaid principal amount of the Securities of
such series in respect of which such payments are to be made that are
held by each such Holder to (ii) the unpaid principal amount of all
Securities of such series.
SECTION 5.12 Securities Held by Certain Persons Not to Share in Distribution. Any Securities known to the Trustee to be owned or held by, or for the account or benefit of, the Funding Corporation or an Affiliate of the Funding Corporation shall not be entitled to share in any payment or distribution provided for in this Article 6 until all Securities held by other Persons have been indefeasibly paid in full.
SECTION 5.13 Waiver of Appraisement, Valuation, Stay, Right to
Marshalling. To the full extent it may lawfully do so, the Funding Corporation,
for itself and for any other Person who may claim through or under it, hereby:
5.10
(a) agrees that neither it nor any such Person will set up,
plead, claim or in any manner whatsoever take advantage of, any appraisal,
valuation, stay, extension or redemption laws, now or hereafter in force in any
jurisdiction which may delay, prevent or otherwise hinder (i) the performance or
enforcement of this Indenture, (ii) the foreclosure of the Security Documents,
(iii) the sale of any of the Collateral or (iv) the putting of the purchaser or purchasers thereof into possession of such Collateral immediately after the sale thereof;
(b) waives all benefit or advantage of any such Laws;
(c) consents and agrees that the Collateral may be sold by the Collateral Agent as an entirety or in parts; and
(d) waives and releases all rights to have the Collateral marshaled upon any foreclosure, sale or other enforcement of this Indenture or the Security Documents.
SECTION 5.14 Limitation on Holders' Bankruptcy Rights. Each Holder hereby irrevocably agrees, for itself and for any other Person who may claim by, through or under it, not to file a petition to commence or join any other Person in the filing or prosecution of a petition to commence an involuntary filing or prosecution of a petition to commence an involuntary case under the Federal Bankruptcy Code against the Funding Corporation.
SECTION 5.15 Remedies Cumulative; Delay or Omission Not a Waiver. Each and every right, power and remedy herein specifically given to the Trustee shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Trustee and the exercise or the commencement of the exercise of any right, power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy, and no delay or omission by the Trustee in the exercise of any right, power or remedy or in the pursuance of any remedy shall impair any such right, power or remedy or to be construed to be a waiver of any default on the part of the Funding Corporation or be an acquiescence therein.
SECTION 5.16 The Intercreditor Agreement. Simultaneously with the execution and delivery of this Indenture and the Depositary Agreement, the Trustee shall enter into the Intercreditor Agreement on behalf of itself and all Holders of the Outstanding Securities and all future Holders of any of the Securities. All rights, powers and remedies available to the Trustee and Holders of the Outstanding Securities, and all future Holders of any of the Securities, with respect to the Security Documents, shall be subject to the Intercreditor Agreement. In the event of any conflict or inconsistency between the terms and provisions of this Indenture and the terms and provisions of the Intercreditor Agreement, the terms and provisions of the Intercreditor Agreement shall govern and control.
SECTION 5.17 The Depositary Agreement. On the Closing Date, the Collateral Agent shall enter into the Depositary Agreement on behalf of the Trustee, all Holders of the Outstanding Securities, all future Holders of any Securities and all other present and future Secured Parties. In the event of any conflict or inconsistency between the terms and provisions of this Indenture and
terms and provisions of the Depositary Agreement, the terms and provisions of the Depositary Agreement shall govern and control.
ARTICLE VI
ACTS OF HOLDERS
SECTION 6.1 Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders (collectively, an "Act" of such
Holders, which term also shall refer to the instruments or record evidencing or
embodying the same) may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing or, alternatively, may be embodied in and evidenced by
the record of Holders of Securities voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders of Securities
duly called and held in accordance with the provisions of this Article VI, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record, or both, are delivered to the Trustee, and, when it is
specifically required herein, to the Funding Corporation. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Funding Corporation, if made in the manner provided in this
Section 6.1. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 6.7 hereof.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer, and where such execution is by an officer of a corporation, association or partnership, on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any Person, and the date or dates of holding the same, shall be proved by the Securities Register and the Trustee shall not be affected by notice to the contrary.
(d) Any Act by the Holder of any Security (i) shall bind every future Holder of the same Security and the Holder of every Security issued upon the transfer thereof or the exchange therefor or in lieu thereof, whether or not notation of such action is made upon such Security, and (ii) shall be valid notwithstanding that such Act is taken in connection with the transfer of such Security to any other Person, including the Funding Corporation or any Affiliate thereof.
(e) Until such time as written instruments shall have been delivered with respect to the requisite percentage of principal amount of Securities for the Act contemplated by such instruments, any such instrument executed and delivered by or on behalf of a Holder of Securities may be revoked with respect to any or all of such Securities by written notice by such Holder (or its duly appointed agent) or any subsequent Holder (or its duly appointed agent), proven in the manner in which such instrument was proven unless such instrument is by its terms expressly irrevocable. In determining whether Holders of the requisite percentage of principal amount of Securities has joined in any Act of Holders, (i) the percentage of Holders of Securities voting and (ii) the manner in which such Holders of Securities have voted shall be as notified to the Trustee by the Funding Corporation.
(f) Securities of any series authenticated and delivered after any Act of Holders may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any action taken by such Act of Holders. If the Funding Corporation shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Funding Corporation, to such action, may be prepared and executed by the Funding Corporation and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
The Funding Corporation may, but shall not be obligated to, fix a record date for the purpose of determining Holders entitled to sign any instrument evidencing or embodying an Act of Holders. If a record date is fixed, those Persons who were Holders at such record date (or their duly appointed agents), and only those Persons, shall be entitled to sign any such instrument evidencing or embodying an Act of Holders or to revoke any such instrument previously signed, whether or not such Persons continue to be Holders after such record date. No such instrument shall be valid or effective if signed more than 90 days after such record date, and may be revoked as provided in paragraph (e) above.
SECTION 6.2 Purposes for Which Holders' Meeting May Be Called. A meeting of Holders may be called at any time and from time to time pursuant to this Article VI for any of the following purposes:
(a) to give any notice to the Funding Corporation or to the Trustee, or to give any directions to the Trustee, or to waive or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to this Indenture;
(b) to remove the Trustee and appoint a successor Trustee pursuant to Article X;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to Section 7.2; or
(d) to take any other action authorized to be taken by or on behalf of Holders of any specified aggregate principal amount of the Securities under any other provision of this Indenture or under applicable Law.
SECTION 6.3 Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities of any series to be in the City of San Francisco, as the Trustee shall determine. Notice of every meeting of Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given by the Trustee, in the manner provided in Section 12.6, not less than 20 nor more than 180 days prior to the date fixed for the meeting, to Holders of Securities of such series.
SECTION 6.4 The Funding Corporation and Holders May Call
Meeting. In case the Funding Corporation or Holders of at least 10% in aggregate
principal amount of the Securities of any series then Outstanding shall have
requested the Trustee to call a meeting of Holders of such series, by written
request setting forth in general terms the action proposed to be taken at the
meeting, and the Trustee shall not have made the mailing of the notice of such
meeting within 20 days after receipt of such request, then the Funding
Corporation or Holders of such Securities in the amount above specified may
determine the time and place in the Borough of Manhattan, The City of New York,
for such meeting and may call such meeting to take any action authorized in
Section 6.2 hereof by giving notice thereof as provided in Section 6.3 hereof.
SECTION 6.5 Persons Entitled to Vote at Meeting. To be entitled to vote at any meeting of Holders a Person shall be (a) a Holder of one or more Securities with respect to which such meeting is being held or (b) a Person appointed by an instrument in writing as proxy for the Holder or Holders of such Securities by a Holder of one or more such Securities. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Funding Corporation and its counsel.
SECTION 6.6 Determination of Voting Rights; Conduct and Adjournment of Meeting. Notwithstanding any other provisions of this Indenture, the Funding Corporation may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 6.9 hereof or other proof. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 6.9 hereof and the appointment of any proxy shall be proved in the manner specified in said Section 6.9 or by having the signature of the Person executing the proxy witnessed or guaranteed by any bank, banker, trust company or firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Funding Corporation or by Holders as provided in Section 6.4 hereof, in which case the Funding Corporation or Holders calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of Holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 6.10 hereof, at any meeting each Holder of a Security of a series or a proxy therefor shall be entitled to one vote for each $100,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Securities of such series held by him or instruments in writing as aforesaid duly designating him as the Person to vote on behalf of other Holders of such series. Any meeting of Holders duly called pursuant to Section 6.3 or Section 6.4 hereof may be adjourned from time to time, and the meeting may be held as so adjourned without further notice. At any meeting, the presence of Persons holding or representing Securities with respect to which such meeting is being held in an aggregate principal amount sufficient to take action upon the business for the transaction of which such meeting was called shall be necessary to constitute a quorum; but, if less than a quorum be present, the Persons holding or representing a majority of the Securities represented at the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum had been present.
SECTION 6.7 Counting Votes and Recording Action of Meeting. The vote upon any resolution submitted to any meeting of Holders of Securities of a series shall be by written ballots on which shall be subscribed the signatures of Holders of Securities of such series or of their representatives by proxy and the serial numbers and principal amounts of the Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 6.3 hereof. The record shall show the serial numbers of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Funding Corporation and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 6.8 Evidence of Action Taken by Holders. Whenever in this Indenture it is provided that Holders of a specified percentage or a majority in aggregate principal amount of the Securities or of any series of Securities may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action Holders of such specified percentage or majority have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of Holders of Securities voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of this Article 6, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders, and except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments and/or such record are delivered to the Trustee, and, where expressly required, to the Funding Corporation.
SECTION 6.9 Proof of Execution of Instruments and of Holding of Securities. Subject to the provisions of Section 10.3 and Section 6.6 hereof and Section 315 of the Trust Indenture Act, proof of the execution of any instrument by a Holder or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner.
The fact and date of the execution by any such Person of any instrument may be proved by the certificate of any notary public or other officer authorized to take acknowledgments of deeds to be recorded in any State within the United States stating that the Person executing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by an officer of a corporation or association or a member of a partnership or limited liability company on behalf of such corporation, association, partnership or limited liability company, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument may also be proved in any other manner which the Trustee may deem sufficient.
The ownership of Securities may be proved by the Securities Register or by a certificate of the Registrar.
If the Funding Corporation shall solicit from Holders of Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other act, the Funding Corporation may, at its option, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Funding Corporation shall have no obligation to do so. Any such record date shall be fixed at the Funding Corporation's discretion in accordance with Section 316(c) of the Trust Indenture Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be sought or given before or after the record date, but only Holders of Securities of record at the close of business on such record date shall be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite aggregate principal amount of Securities of such series Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the Securities of such series Outstanding shall be computed as of such record date.
The Trustee may require such additional proof, if any, of any matter referred to in this Section 6.9 hereof as it shall deem necessary.
The record of any meeting of Holders shall be proved as provided in Section 6.7 hereof.
SECTION 6.10 Securities Owned by the Funding Corporation Deemed Not Outstanding. In determining whether Holders of the requisite aggregate principal amount of Securities have concurred in any request, demand, authorization, direction, notice, consent, waiver or other act under this Indenture, Securities which are owned by the Funding Corporation or any Affiliate of the Funding Corporation shall be disregarded and deemed not to be Outstanding for the purpose of any such determination except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities for which the Trustee has received written notice of such ownership as conclusively evidenced by the Securities Register shall be so disregarded. The Funding Corporation shall furnish the Trustee, upon its reasonable request, with a list of such Affiliates. Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section 6.10, if the pledgee shall establish to the satisfaction of the Trustee that the pledgee has the right to vote such Securities and that the pledgee is not an Affiliate of the Funding Corporation. Subject to the provisions of Section 315 of the Trust Indenture Act, in case of a dispute as to such right, any decision by the Trustee, taken upon the advice of counsel, shall be full protection to the Trustee.
SECTION 6.11 Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.8 hereof, of the taking of any action by Holders of the percentage in aggregate principal amount of the Securities or of any series of Securities specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included in the Security Holders of which have consented to such action may, by filing written notice with the Trustee and upon proof of holding as provided in Section 6.9 hereof, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security, and of any Security issued in exchange therefor or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security or any Security issued in exchange therefor or in place thereof. Any action taken by Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Funding Corporation, the Trustee and Holders of all the Securities.
ARTICLE VII
AMENDMENTS AND SUPPLEMENTS;
ACTIONS UNDER CERTAIN AGREEMENTS
SECTION 7.1 Amendments and Supplements to Indenture without Consent of Holders. This Indenture may be amended or supplemented by the Funding Corporation and the Trustee at any time and from time to time, without the consent of Holders, by a Supplemental Indenture filed with, and in form satisfactory to, the Trustee, solely for one or more of the following purposes:
(a) to add additional covenants of the Funding Corporation, to surrender any right or power herein conferred upon the Funding Corporation or to confer upon Holders any additional rights, remedies, benefits, powers or authorities that may lawfully be conferred;
(b) to increase the assets securing the Funding Corporation's obligations under this Indenture;
(c) to incorporate the issuance of Additional Securities on the conditions set forth in Article II hereof;
(d) for any purpose not inconsistent with the terms of this Indenture or to cure any ambiguity or to correct or supplement any provision contained herein or in any Supplemental Indenture which may be defective or inconsistent with any other provision contained herein or in any Supplemental Indenture; or
(e) in connection with, and to reflect, any amendments to the provisions hereof or of any Supplemental Indenture requested by the Rating Agencies in circumstances where confirmation of the Ratings is required or permitted under this Indenture or any Supplemental Indenture; provided, however, that such amendments are not, in the judgment of the Trustee, to the material prejudice of the Trustee or Holders; or
(f) to provide for the issuance of Exchange Securities as contemplated by a Registration Rights Agreement.
SECTION 7.2 Amendments and Supplemental Indentures with Consent of Holders. At any time and from time to time, but only with the approval of the Holders of more than 50% in aggregate principal amount of the Securities then Outstanding, the Funding Corporation and the Trustee may enter into a Supplemental Indenture for the purpose of adding any mutually agreeable provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture, or waive compliance with any provision hereof; provided that, without the unanimous consent of Holders affected thereby, no such Supplemental Indenture and no such waiver of compliance with any of the provisions hereof shall alter or modify or waive compliance with (i) any
provision with respect to the amount of principal, premium (if any) or interest payable upon any Securities, (ii) any provision with respect to the dates on which interest on or principal of any Securities is payable, (iii) any provision with respect to the dates of maturity of any Securities or (iv) any provision of this Article VII. Notice of any Supplemental Indenture or waiver which alters, modifies or waives compliance with any of the provisions referred to any of subclauses (i) through (iv) of the proviso to the preceding sentence shall be given by the Funding Corporation to any Rating Agency then maintaining a Rating for the Securities.
SECTION 7.3 Amendment of the Credit Agreements or Project
Notes. The Funding Corporation and the Trustee may without the consent of or
notice to Holders enter into, or consent to the execution of, any amendment,
supplement, waiver, consent or other modification of any Credit Agreement or
Project Note (i) to add additional covenants of the Guarantor party thereto, to
surrender any rights or powers therein conferred upon such Guarantor or to
confer upon the Funding Corporation or the Trustee any additional rights,
remedies, benefits, powers or authorities that may lawfully be conferred; (ii)
to incorporate the issuance of additional Project Notes in connection with the
issuance of Additional Securities; (iii) for any purpose not inconsistent with
the terms of this Indenture or such Credit Agreement or Project Note or to cure
any ambiguity or to correct or supplement any provision contained in such Credit
Agreement or Project Note which may be defective or inconsistent with any
provision contained therein, provided that such amendment or modification does
not have a material adverse effect on the Outstanding Securities; or (iv) in
connection with and to reflect any amendments or supplements to the provisions
thereof requested by the Rating Agencies in circumstances where confirmation of
the Ratings is required or permitted under such Credit Agreement or any
amendment or supplement thereto. Except as otherwise provided in this Section
7.3, neither the Funding Corporation nor the Trustee shall consent to any other
amendment to or modification of the Cordova Energy Credit Agreement or Cordova
Energy Project Note or grant any waiver or consent thereunder without the
written approval or consent of Holders of more than 50% in aggregate principal
amount of the Securities then Outstanding which are affected by such amendment
or modification. Any amendment or modification to the Cordova Energy Credit
Agreement or the Cordova Energy Project Note which changes (i) the amount of
payments due thereunder, (ii) the Person to whom such payments are to be made or
(iii) the dates on which such payments are to be made shall not be made without
the unanimous consent of Holders affected by such amendment or modification.
SECTION 7.4 Actions Taken Under Depositary Agreement. Any consent which is expressly required to be provided to the Securities Intermediary by the Trustee as a Secured Party under the Depositary Agreement shall be subject to the following:
(i) any consent of the Trustee under Section 6.1(c) of the Depositary Agreement shall require the consent of (A) all of the Holders of the Initial Securities and (B) if the Holders of the Initial Securities hold less than a majority of the aggregate principal amount of the Outstanding Securities affected by the applicable amendment, supplement, waiver, consent or other modification, Holders of Outstanding Additional Securities in an aggregate principal amount which, together with the aggregate principal amount of the Outstanding Initial Securities, is more than 50% in aggregate principal amount of the Outstanding Securities affected by the applicable amendment, supplement, waiver, consent or other modification;
(ii) any consent of the Trustee as a Secured Party which is expressly required under clause (b) or (d) of Section 6.1 of the Depositary Agreement shall require the consent of Holders representing more than 50% of the Outstanding Securities affected by the applicable amendment, supplement, waiver, consent or other modification; and
(iii) any direction or consent of the Trustee as a Secured Party which is expressly required under the Depositary Agreement and which is not addressed in clause (i) or (ii) immediately above shall require the consent of Holders representing more than 50% of the Outstanding Securities affected by the event or circumstance which requires such direction or consent.
SECTION 7.5 Actions Taken Under Intercreditor Agreement. Any direction or consent which is expressly required to be provided to the Collateral Agent by the Trustee as a Secured Party under the Intercreditor Agreement shall be subject to the following:
(i) any direction or consent of the Trustee as a Secured Party
which is expressly required under Section 5 or 6 of the Intercreditor Agreement
shall require the consent of (x) if the event or circumstance which requires
such direction or consent is addressed in Section 5.2 hereof, the applicable
percentage of Holders set forth in Section 5.2 hereof, and (y) if the event or
circumstance which requires such direction or consent is not addressed in
Section 5.2 hereof, Holders representing (1) 33-1/3% of the Outstanding
Securities in the case of a Trigger Event resulting from an Event of Default
under Section 5.1(a) hereof or (2) more than 50% of the Outstanding Securities
in the case of any other Trigger Event;
(ii) any consent of the Trustee under Section 10(f)(iii) of the Intercreditor Agreement shall require the consent of (A) all of the Holders of the Initial Securities and (B) if the Holders of the Initial Securities represent less than a majority of the aggregate principal amount of the Outstanding Securities affected by the applicable amendment, supplement, waiver, consent or other modification, Holders of Outstanding Additional Securities in an aggregate principal amount which, together with the aggregate principal amount of the Outstanding Initial Securities, is more than 50% of the principal amount of the Outstanding Securities affected by the applicable amendment, supplement, waiver, consent or other modification;
(iii) any consent of the Trustee as a Secured Party which is expressly required under clause (ii) or (iv) of Section 10(f) of the Intercreditor Agreement shall require the consent of Holders representing more than 50% of the Outstanding Securities affected by the applicable amendment, supplement, waiver, consent or other modification; and
(iv) any direction or consent of the Trustee as a Secured Party which is expressly required under the Intercreditor Agreement and which is not addressed in clause (i), (ii) or (iii) immediately above shall require the consent of Holders representing more than 50% of the Outstanding Securities affected by the event or circumstance which requires such direction or consent.
SECTION 7.6 Trustee Authorized to Join in Amendments and Supplements; Reliance on Counsel. The Trustee is authorized to join with the Funding Corporation in the execution and delivery of any Supplemental Indenture or amendment permitted by this Article VII and in so doing shall be fully protected by an Opinion of Counsel that such Supplemental Indenture or amendment is so permitted and has been duly authorized by the Funding Corporation and that all things necessary to make it a valid and binding agreement have been done.
SECTION 7.7 Effect of Supplemental Indentures. Upon the execution of any Supplemental Indenture under this Article VII, this Indenture shall be modified in accordance therewith, and such Supplemental Indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 7.8 Conformity with Trust Indenture Act. Every Supplemental Indenture executed pursuant to this Article VII shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 7.9 Reference in Securities to Supplemental Indentures. Securities authenticated and delivered after the execution of any Supplemental Indenture pursuant to this Article VIII may, and shall if required by the Funding Corporation, bear a notation in form approved by the Funding Corporation and the Trustee as to any matter provided for in such Supplemental Indenture; and, in such case, suitable notation may be made upon Outstanding Securities after proper presentation and demand. If the Funding Corporation shall so determine, new Securities so modified as to conform, in the opinion of the Funding Corporation and the Trustee, to any such Supplemental Indenture may be prepared and executed by the Funding Corporation and authenticated and delivered by the Trustee in exchange for Outstanding Securities.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 Satisfaction and Discharge of Securities. Except as otherwise provided with respect to the Securities of any series in the Supplemental Indenture relating thereto, the Securities of such series shall, on or prior to the Scheduled Payment Date with respect to the final installment of principal thereof, be deemed to have been paid for all purposes of this Indenture, and the entire Indebtedness of the Funding Corporation in respect thereof shall be deemed to have been satisfied and discharged, upon satisfaction of the following conditions:
(a) the Funding Corporation shall have irrevocably deposited or caused to be deposited with the Trustee, in trust, money in an amount which shall be sufficient to pay when due the principal, premium, if any, and interest due and to become due on the Securities of such series on and prior to the Scheduled Payment Date with respect to the final installment of principal thereof or upon redemption or prepayment;
(b) if any such deposit of money shall have been made prior to the Scheduled Payment Date with respect to the final installment of principal of such Securities or the Redemption Date for such Securities, the Funding Corporation shall have delivered to the Trustee an Officer's Certificate stating that such money shall be held by the Trustee, in trust, as provided in Section 8.3 hereof;
(c) in the case of redemption or prepayment of Securities, the notice requisite to the validity of such redemption or prepayment shall have been given, or irrevocable authority shall have been given by the Funding Corporation to the Trustee to give such notice, under arrangements satisfactory to the Trustee; and
(d) there shall have been delivered to the Trustee an Opinion of Counsel to the effect that such satisfaction and discharge of the Indebtedness of the Funding Corporation with respect to the Securities of such series shall not be deemed to be, or result in, a taxable event with respect to Holders of such series for purposes of United States Federal income taxation unless the Trustee shall have received documentary evidence that each Holder of such series either is not subject to, or is exempt from, United States Federal income taxation.
Upon satisfaction of the aforesaid conditions with respect to the Securities of any series, the Trustee shall, upon receipt of a notice from the Funding Corporation, acknowledge in writing that the Securities of such series are deemed to have been paid for all purposes of this Indenture and that the entire Indebtedness of the Funding Corporation in respect thereof is deemed to have been satisfied and discharged.
In the event that Securities which shall be deemed to have been paid as provided in this Section 8.1 do not mature and are not to be redeemed within the 60-day period commencing on the date of the deposit with the Trustee of moneys, the Funding Corporation shall, as promptly as practicable, give a notice, in the same manner as a notice of redemption with respect to such Securities, to Holders of such Securities to the effect that such Securities are deemed to have been paid and the circumstances thereof.
Notwithstanding the satisfaction and discharge of any Securities as aforesaid, the obligations of the Funding Corporation and the Trustee in respect of such Securities under Sections 2.5, 2.8 and 10.7 hereof and this Article VIII shall survive.
SECTION 8.2 Satisfaction and Discharge of Indenture. This Indenture shall upon request of the Funding Corporation cease to be of further effect (except as hereinafter expressly provided), and the Trustee, at the expense of the Funding Corporation, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) either
(i) all Securities theretofore authenticated and
delivered (other than Securities which have
been destroyed, lost or stolen and which
have been replaced or paid as provided in
Section 2.8 and Securities deemed to have
been paid in accordance with Section 8.1 hereof) have been delivered to the Trustee for cancellation, or
(ii) all Securities not theretofore delivered to the Trustee for cancellation shall be deemed to have been paid in accordance with Section 8.1 hereof; and
(b) all other sums due and payable hereunder have been paid; and
(c) the Funding Corporation has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein required for the satisfaction and discharge of this Indenture have been complied with.
Upon satisfaction of the aforesaid conditions, the Trustee shall, upon receipt of a written request from the Funding Corporation, acknowledge in writing the satisfaction and discharge of this Indenture and take all other action reasonably requested by the Funding Corporation to evidence the termination of any and all Liens created with respect to this Indenture or the Security Documents.
Notwithstanding the satisfaction and discharge of this Indenture as aforesaid, the obligations of the Funding Corporation and the Trustee under Sections 2.5, 2.8 and 10.7 hereof and this Article VIII shall survive.
Upon satisfaction and discharge of this Indenture as provided in this Section 8.2, the Trustee shall assign, transfer and turn over to, or upon the order of, the Funding Corporation any and all money, securities and other property then held by the Trustee for the benefit of Holders, other than money deposited with the Trustee pursuant to Section 8.1(a) hereof and interest and other amounts (if any) earned or received thereon.
SECTION 8.3 Application of Trust Money. The money deposited with the Trustee pursuant to Section 8.1 hereof shall not be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of, and premium (if any) and interest on, the Securities or portions of principal amount thereof in respect of which such deposit was made.
ARTICLE IX
DEFEASANCE
SECTION 9.1 Funding Corporation's Option to Effect Defeasance or Covenant Defeasance. The Funding Corporation may elect, at its option at any time, to have Section 9.2 or Section 9.3 applied to the Outstanding Securities (as a whole and not in part) upon compliance with the conditions set forth below in this Article IX and upon payment or provision for payment to the Trustee of all fees and expenses due hereunder.
SECTION 9.2 Defeasance and Discharge. Upon the Funding
Corporation's exercise of its option to have this Section 9.2 applied to the
Outstanding Securities (as a whole and not in part), the Funding Corporation
shall be deemed to have been discharged from its obligations with respect to
such Securities as provided in this Section 9.2 on the date after the conditions
set forth in Section 9.4 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Funding Corporation shall be deemed
to have paid and discharged the entire Indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Funding Corporation, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 9.4 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (b) the
Funding Corporation's obligations with respect to such Securities under Sections
2.2 and 4.3(a), (c) the rights, powers, trusts, duties and immunities of the
Trustee under this Indenture, including, without limitation, Section 10.7, (d)
Article III, (e) this Article IX and (f) Article X. Subject to compliance with
this Article IX, the Funding Corporation may exercise its option to have this
Section 9.2 applied to the Outstanding Securities (as a whole and not in part)
notwithstanding the prior exercise of its option to have Section 9.3 applied to
such Securities.
SECTION 9.3 Covenant Defeasance. Upon the Funding Corporation's exercise of its option to have this Section 9.3 applied to the Outstanding Securities (as a whole and not in part), (a) the Funding Corporation shall be released from its obligations under Article IV (except for Section 4.3(a)) and Section 5.1(c) (except with respect to Section 4.3(a)) and Section 5.1(d) shall be of no force and effect), in each case with respect to such Outstanding Securities as provided in this Section 9.3 on and after the date the conditions set forth in Section 9.4 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that, with respect to such Outstanding Securities, the Funding Corporation may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document; but the remainder of this Indenture and such Securities shall be unaffected thereby.
The Funding Corporation may exercise its option under Section 9.2 notwithstanding the prior exercise of its option under Section 9.3.
SECTION 9.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 9.2 or
Section 9.3 to the Outstanding Securities:
(a) The Funding Corporation shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely for the benefit of Holders of such Securities, (i) money in
an amount, or (ii) U.S. government obligations for the payment of principal of, premium (if any) and interest on the Outstanding Securities in accordance with their terms to any Redemption Date or final maturity date, as applicable, of the Outstanding Securities or (iii) a combination thereof.
(b) The Funding Corporation shall deliver to the Trustee a certificate of a nationally recognized firm of independent public accountants expressing their opinion that such payments of principal and interest when due without reinvestment of the deposited U.S. government obligations plus any deposited monies without investment will provide cash at such times and in such amounts will be sufficient to pay the principal of, premium (if any) and any installment of accrued interest on such Outstanding Securities on the respective stated maturities thereof or, if the Funding Corporation makes arrangements satisfactory to the Trustee for the redemption of the Securities prior to their stated maturity, on any earlier Redemption Date, in accordance with the terms of this Indenture and such Outstanding Securities.
(c) In the event of an election to have Section 9.2 apply to the Outstanding Securities, the Funding Corporation shall have delivered to the Trustee an Opinion of Counsel to the effect that, or based upon existing precedents, if the matter were properly briefed, a court should hold that, Holders shall not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance and shall be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such defeasance were not to occur and the Funding Corporation had paid or redeemed such Securities on the applicable dates, which Opinion of Counsel must be based upon a ruling of the Internal Revenue Service to the same effect or a change in applicable United States federal income tax law or related United States Department of Treasury regulations after the Closing Date.
(d) In the event of an election to have Section 9.3 apply to the Outstanding Securities, the Funding Corporation shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders shall not recognize income, gain or loss for United States federal income tax purposes as a result of the Covenant Defeasance and shall be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such Covenant Defeasance were not to occur and the Funding Corporation had paid or redeemed such Securities on the applicable dates.
(e) Immediately after giving effect to such deposit and the Covenant Defeasance, no Default or Event of Default (other than a Default or an Event of Default resulting from the incurrence of Indebtedness all or a portion of the proceeds of which will be used to defease the Securities), with respect to the Outstanding Securities shall have occurred and be continuing on the date of such deposit and after giving effect to such deposit.
(f) Such Defeasance or Covenant Defeasance shall not constitute a default under any other material agreement or instrument to which the Funding Corporation is a party or by which it is bound.
(g) The Funding Corporation shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Notwithstanding anything to the contrary set forth herein, the
conditions set forth in clauses (b), (c), (d), (e) and (f) need not be satisfied
so long as, at the time the Funding Corporation makes such deposit, (1) no
Default under subsections 5.1(a), (e) or (f) hereof shall have occurred and be
continuing on the date of and after giving effect to such deposit and (2) either
(x) a notice of redemption has been mailed pursuant to Section 3.2 hereof
providing for redemption of all the Outstanding Securities not more than forty
(40) days after such mailing and the provisions of Article III hereof with
respect to such redemption shall have been complied with or (y) the final
maturity date of the Securities will occur within forty (40) days. If the
conditions set forth in this paragraph are satisfied, the Funding Corporation
shall be deemed to have effected Covenant Defeasance.
All Opinions of Counsel required in this Section 9.4 may be subject to customary assumptions, qualifications and limitations.
SECTION 9.5 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions. All money and U.S. government obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 9.4 or otherwise in respect of the Outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (other than the Funding Corporation acting as its own Paying Agent) as the Trustee may determine, to Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Funding Corporation shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. government obligations deposited pursuant to Section 9.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of Holders of Outstanding Securities.
Anything in this Article IX to the contrary notwithstanding, the Trustee shall deliver or pay to the Funding Corporation from time to time upon request by the Funding Corporation any money or U.S. government obligations held by it as provided in Section 9.4 that, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to the Outstanding Securities.
SECTION 9.6 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article IX with respect to any Securities by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Funding
Corporation has been discharged or released pursuant to Section 9.2 or 9.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article IX with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 9.5 with respect to such Securities in accordance with this Article IX; provided that if the Funding Corporation makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Funding Corporation shall be subrogated to the rights (if any) of Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE XI
HE TRUSTEE AND DTC
SECTION 10.1 Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such
duties and only such duties as are
specifically set forth in this Indenture,
and no implied covenants or obligations
shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the
truth of the statements and the correctness
of the opinions expressed therein, upon
certificates or opinions furnished to the
Trustee and conforming to the requirements
of this Indenture; but in the case of any
such certificates or opinions which by
any provision hereby are specifically
required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the
same to determine whether or not they con-
form to the requirements of this Indenture.
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(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this clause (c) shall not be construed to limit the effect of clause (a) of this Section;
(2) the Trustee shall not be liable for any error or judgment made in good faith by an Authorized Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of Holders of not less than a majority in principal amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture, the Depositary Agreement and the Intercreditor Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
(e) The Trustee shall not be responsible for insuring the Cordova Energy Project or for collecting any insurance moneys and shall have no responsibility for the financial, physical or other condition of the Cordova Energy Project.
SECTION 10.2 Notice of Defaults. If payment of any interest on any Security is not made when it becomes due and payable and such failure continues unremedied for a period of ten (10) days, the Trustee shall, as soon thereafter as practicable, notify the Funding Corporation that it has failed to make interest payments by telephone or telecopy. Any telephonic notice shall be promptly confirmed in writing. Within thirty (30) days after the occurrence of any Event of Default of which a Responsible Officer of the Trustee has actual knowledge, the Trustee shall transmit by mail to all Holders of Securities, as their names and addresses appear in the Securities Register, notice of such Event of Default known to the Trustee, unless such Event of Default shall have been cured or waived; provided, however, that, except in the case of default in the payment of the principal of or premium, if any, or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Authorized Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of Holders of Securities.
Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein, in the Security Documents, or of any of the documents executed in connection with the Securities, or as to the existence of an Event of Default thereunder, and shall not be deemed to have notice of an Event of Default unless a Responsible Officer has actual knowledge thereof or shall have been notified in writing in accordance with the terms hereof.
SECTION 10.3 Certain Rights of Trustee. (a) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Funding Corporation shall be sufficiently evidenced by written instrument signed by an Authorized Officer of the Funding Corporation;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence is herein specifically prescribed to be relied upon) may, in the absence of bad faith on its part, rely upon a certificate of an Authorized Officer of the Funding Corporation delivered to the Trustee;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
SECTION 10.4 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Funding Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Funding Corporation of Securities or the proceeds thereof.
SECTION 10.5 May Hold Securities. The Trustee or any other agent of the Funding Corporation, in its individual or any other capacity, may become the owner or pledgee of Securities and may deal with the Funding Corporation with the same rights it would have if it were not Trustee or such other agent.
SECTION 10.6 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by Law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Funding Corporation.
SECTION 10.7 Compensation; Reimbursement; Indemnification. The Funding Corporation agrees (a) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of Law in regard to the compensation of a trustee of an express trust), (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith, and (c) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. All indemnifications and releases from liability granted hereunder to the Trustee shall extend to its officers, directors, employees, agents, successors and assigns.
SECTION 10.8 Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation which complies with the eligibility requirements of the Trust Indenture Act, either (a) having a combined capital and surplus of at least $50,000,000 or (b) having a combined capital and surplus of at least $10,000,000 and being a wholly-owned subsidiary of a corporation having a combined capital and surplus of at least $50,000,000, and in each case subject to supervision or examination by Federal or State or District of Columbia authority and having a corporate trust office in New York, New York, to the extent there is such an institution eligible and willing to serve. If such corporation publishes reports of condition at least annually, pursuant to Law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 10.9 Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article X shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 10.10 hereof.
(b) The Trustee may resign at any time by giving written notice thereof to the Funding Corporation, provided that in the event the Trustee is also the Collateral Agent and/or Securities Intermediary, it must also at the same time resign as Collateral Agent and/or Securities Intermediary, as the case may be. If the instrument of acceptance by a successor Trustee required by Section 10.10 hereof shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by act of Holders of a majority in principal amount of the Outstanding Securities, delivered to the Trustee and to the Funding Corporation.
(d) If at any time:
(1) the Trustee shall cease to be eligible under
Section 10.8 hereof and shall fail to resign
after written request therefor by the
Funding Corporation or by any such Holder,
or
(2) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or
of its property shall be appointed or any
public officer shall take charge or control
of the Trustee or of its property of affairs
for the purpose of rehabilitation, conserva-
tion or liquidation,
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then, in any such case, (i) the Funding Corporation may remove the Trustee, or
(ii) subject to the requirements of Section 315(e) of the Trust Indenture Act,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of action, or if a vacancy shall occur in the office of Trustee for any cause, the Funding Corporation shall promptly appoint a successor Trustee or Trustees, a successor Collateral Agent and a successor Securities Intermediary, as applicable, in accordance with the applicable requirements of Section 10.10 hereof. If, within 30 days after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Holders of a majority in aggregate principal amount of the Outstanding
Securities by written instrument delivered to the Funding Corporation and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 10.10 hereof, become the successor Trustee and supersede the successor
Trustee appointed by the Funding Corporation. If no successor trustee shall have
been so appointed by the Funding Corporation or Holders and accepted appointment
in the manner required by Section 10.10 hereof, subject to the requirements of
Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Funding Corporation shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities as their names and addresses appear in the Securities Register and to the Rating Agencies. Each notice shall include the name of the successor Trustee and the address of its principal trust office.
SECTION 10.10 Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Funding Corporation and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Funding Corporation or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Funding Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article X.
SECTION 10.11 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article X, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 10.12 Maintenance of Offices and Agencies. (a) There shall at all times be maintained in the Borough of Manhattan, the City of New York, and in such other places of payment, if any, as shall be specified for the Securities of any series in the related Supplemental Indenture, an office or agency where Securities may be presented or surrendered for registration of transfer or exchange and for payment of principal, premium, if any, and interest. Such office shall be initially for delivery by hand:
Chase Manhattan Bank and
Trust Company, National Association
c/o The Chase Manhattan Bank
Corporate Teller
55 Water Street, Room 234
2nd Floor, North Building
New York, New York 10041
or for delivery by mail:
Chase Manhattan Bank and
Trust Company, National Association
c/o Chase Bank of Texas
1201 Main Street
Dallas, Texas 75202
Attention: Registered Processing Area, 18th Floor
(b) There shall at all times be a Securities Registrar and a Paying Agent hereunder. In addition, at any time when any Securities remain Outstanding, the Trustee may appoint an authenticating agent or agents with respect to the Securities of one or more series which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issuance, exchange, registration of transfer or partial redemption thereof or pursuant to Section 2.8, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder (it being understood that wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating agent). If an appointment of an authenticating agent with respect to the Securities of one or more series shall be made pursuant to this Section 10.12(b), the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form:
This Security is one of the series of Securities referred to in the within-mentioned Indenture.
Any authorized agent shall be a bank or trust company, shall be a Person organized and doing business under the laws of the United States or any State thereof, either (a) having a combined capital and surplus of at least $50,000,000 or (b) having a combined capital and surplus of at least $10,000,000 and being a wholly-owned subsidiary of a corporation having a combined capital and surplus of at least $50,000,000 and shall be authorized under such laws to exercise corporate trust powers, subject to supervision by Federal or state authorities. If such authorized agent publishes reports of its condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 10.12, the combined capital and surplus of such authorized agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an authorized agent shall cease to be eligible in accordance with the provisions of this Section 10.12, such authorized agent shall resign immediately in the manner and with the effect specified in this Section 10.12. The Trustee at its office specified in Section 12.6 is hereby appointed as Paying Agent and Securities Registrar hereunder.
(c) Any Paying Agent (other than the Trustee) from time to time appointed hereunder shall execute and deliver to the Trustee an instrument in which said Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.12, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of, and premium, if any, and interest on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee within five days thereafter notice of any default by any obligor upon the Securities in the making of any such payment of principal, premium, if any, or interest; and
(iii) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
Notwithstanding any other provision of this Indenture, any payment required to be made to or received or held by the Trustee may, to the extent authorized by written instructions of the Trustee, be made to or received or held by a Paying Agent in the Borough of Manhattan, the City of New York, for the account of the Trustee.
(d) Any Person into which any authorized agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, consolidation or conversion to which any authorized agent shall be a party, or any corporation succeeding to the corporate trust business of any authorized agent, shall be the successor of such authorized agent hereunder, if such successor Person is otherwise eligible under this Section 10.12, without the execution or filing of any paper or any further act on the part of the parties hereto or such authorized agent or such successor Person.
(e) Any authorized agent may at any time resign by giving
written notice of resignation to the Trustee and the Funding Corporation. The
Funding Corporation may, and at the request of the Trustee shall, at any time,
terminate the agency of any authorized agent by giving written notice of such
termination to the authorized agent and to the Trustee. Upon the resignation or
termination of an authorized agent or in case at any time any such authorized
agent shall cease to be eligible under this Section 10.12 (when, in either case,
no other authorized agent performing the functions of such authorized agent
shall have been appointed), the Funding Corporation shall promptly appoint one
or more qualified successor authorized agents approved by the Trustee to perform
the functions of the authorized agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under this Section
10.12. The Funding Corporation shall give written notice of any such appointment
to all Holders as their names and addresses appear on the Securities Register.
SECTION 10.13 Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent, within the time periods and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 10.14 The Depository Trust Company. At any time during which DTC is serving as Depositary, the Funding Corporation may, with the consent of the Trustee, remove or replace DTC or any successor for any reason upon 30 days' notice to DTC or such successor. Holders have no right to a Depositary for Additional Securities.
Notwithstanding any other provision of this Indenture or any Additional Securities, if and for so long as DTC is the registered owner of any Additional Securities:
(a) the provisions of the applicable DTC Representation Letter will control over the provisions of this Indenture with respect to the matters covered thereby;
(b) presentation of such Additional Securities to the Trustee at redemption or at maturity shall be deemed made to the Trustee when the right to exercise ownership rights in such Additional Securities through DTC or DTC's participants is transferred by DTC on its books; and
(c) DTC may present notices, approvals, waivers or other communications required or permitted to be made by Holders under this Indenture on a fractionalized basis on behalf of some or all of those Persons entitled to exercise ownership rights in such Additional Securities through DTC or its participants.
ARTICLE XI
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND THE FUNDING CORPORATION
SECTION 11.1 The Funding Corporation to Furnish to the Trustee Names and Addresses of Holders. The Funding Corporation will furnish, or will cause to be furnished by DTC, to the Trustee:
(a) semi-annually, not later than 15 days after each Record Date in connection with the regularly scheduled payment of interest, a list, in such form as the Trustee may reasonably require, of the names and addresses of Holders as of such Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Funding Corporation of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Registrar no such list shall be required to be furnished to the Trustee. If any person other than the Trustee is the Registrar for the Securities, the Funding Corporation shall not be required to furnish to such Person any of the lists described in Sections 11.1(a) and (b).
SECTION 11.2 Trustee to Furnish Other Information.
On or before March 15 in every year, so long as any Securities are Outstanding hereunder, the Trustee shall transmit to Holders a brief report, dated as of the preceding December 31, to the extent required by Section 313 of the Trust Indenture Act in accordance with the procedures set forth in said Section. A copy of such report at the time of its mailing to Holders shall be filed with the Commission and each stock exchange, if any, on which the Securities are traded.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1 Deposit of Funds for Payment of Securities. (a) If the principal of any Securities becoming due, either at maturity or otherwise, together with all interest accruing thereon to the due date, has been paid or provision therefor made in accordance with Section 9.1, all interest on such Securities shall cease to accrue on the due date and all liability of the Funding Corporation with respect thereto shall likewise cease, except as hereinafter provided. Thereafter Holders of such Securities shall be restricted exclusively to the funds or securities so deposited for any claim of whatsoever nature with respect to such Securities, and the Trustee shall hold such funds or securities in trust for such Holders.
(b) Moneys so deposited with the Trustee which remain unclaimed two years after the date payment thereof becomes due shall, at the request of the Funding Corporation if at the time, to the knowledge of the Trustee, no Event of Default shall have occurred and be continuing, be paid to the Funding Corporation and Holders of the Securities for which the deposit was made shall thereafter be limited to a claim against the Funding Corporation; provided, however, that the Trustee, before making payment to the Funding Corporation, may, at the expense of the Funding Corporation, cause a notice to be published once in a newspaper or financial journal of general circulation in the City of New York, New York, stating that the moneys remaining unclaimed will be returned to the Funding Corporation after a specified date.
SECTION 12.2 Third Party Beneficiaries; No Rights Conferred on Others. Except as provided in Section 12.7 hereof, nothing herein contained shall confer any right upon any Person other than the parties hereto and the registered Holders of the Securities.
SECTION 12.3 Illegal Provisions Disregarded. In case any provision in this Indenture or the Securities shall for any reason be held invalid, illegal or unenforceable in any respect, this Indenture or the Securities, as the case may be, shall be construed as if such provision had never been contained herein or therein.
SECTION 12.4 Substitute Notice. If for any reason it shall be impossible to make publication of any notice required hereby in a newspaper or financial journal of general circulation in the City of New York, New York, then such publication or other notice in lieu thereof as shall be made with the approval of the Trustee shall constitute a sufficient giving of such notice.
SECTION 12.5 Notice to Rating Agencies. Upon the occurrence of any Event of Default of which a Responsible Officer of the Trustee has actual knowledge hereunder, the Trustee shall promptly give notice thereof to each of the Rating Agencies.
SECTION 12.6 Notices. (a) Any notice, request, complaint, demand, communication or other paper shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified mail, postage prepaid, or sent by overnight delivery, telecopy, telegram or telex, addressed to the parties as follows:
The Funding Corporation: Cordova Funding Corporation
666 Grand Avenue, 29th Floor
P.O. Box 657
Des Moines, Iowa 50303-0657
Telephone: (515) 281-2919
Fax: (515) 242-4080
Attention: Chief Financial Officer
With a copy to: General Counsel
Fax: (402) 231-1578
Trustee: Chase Manhattan Bank and Trust Company,
National Association
101 California Street, #2725
San Francisco, California 94111
Telephone: (415) 954-9508
Fax: (415) 693-8850
Attention: Corporate Trust Department
Moody's: Moody's Investors Service
99 Church Street
New York, New York 10007
Telephone: (212) 553-7822
Fax: (212) 553-0468
Attention: Corporate Utilities Department
S & P: Standard & Poor's Corporation
55 Water Street
New York, New York 10041
Telephone: (212) 438-6604
Fax: (212) 438-6630
Attention: Corporate Finance Department
Electric Utilities Group
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The above parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent.
(b) Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder, at its address as it appears in the Securities Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders, and any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given.
SECTION 12.7 Successors and Assigns. All the covenants, promises and agreements contained in this Indenture by or on behalf of the Funding Corporation, or by or on behalf of the Trustee, shall bind and inure to the benefit of their respective successors and assigns, whether so expressed or not.
SECTION 12.8 Headings for Convenience Only. The descriptive headings in this Indenture are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.
SECTION 12.9 Counterparts. The Indenture may be executed in any number of counterparts, each of which when so executed and delivered shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 12.10 APPLICABLE LAW. THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.11 Holidays. If any date for the payment of principal of or premium (if any) or interest on the Securities is not a Business Day, then such payment shall be due on the first Business Day thereafter.
SECTION 12.12 Limitation of Liability. Notwithstanding anything to the contrary contained in this Indenture, the liability and obligation of the Funding Corporation to perform and observe and make good the obligations contained in this Indenture shall not be enforced by any action or proceeding wherein damages or any money judgment or any deficiency judgment or any judgment establishing any personal obligation or liability shall be sought, collected or otherwise obtained against any officer, director, employee or shareholder or related Person of the Funding Corporation, and the Trustee, for itself and its successors and assigns, irrevocably waives any and all right to sue for, seek or demand any such damages, money judgment, deficiency judgment or personal judgment against any officer, director, employee or shareholder or related Person of the Funding Corporation under or by reason of or in connection with this Indenture and agrees to look solely to the Funding Corporation and Cordova Energy and the Collateral held under the Security Documents for the enforcement of the obligations of the Funding Corporation under this Indenture.
IN WITNESS WHEREOF, Cordova Funding Corporation has caused this Trust Indenture to be executed by one of its duly authorized officers, and Chase Manhattan Bank and Trust Company, National Association, has caused this Trust Indenture to be executed by one of its duly authorized officers, all as of the day and year first above written.
CORDOVA FUNDING CORPORATION
By: /s/ James A. Flores
-----------------------------
Title: VP Project Finance
---------------------------
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CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
Schedule I to Trust Indenture
PRINCIPAL AMORTIZATION
Series A Senior Secured Bonds due December 15, 2019
The following table sets forth the date of each semiannual installment of principal to be paid on the Securities and the applicable percentage of the original principal amount payable on each such date:
Scheduled Payment Date Percentage of Principal Amount Payable
June 15, 2001 0.0000%
December 15, 2001 0.0000%
June 15, 2002 0.2750%
December 15, 2002 0.2750%
June 15, 2003 2.0000%
December 15, 2003 2.0000%
June 15, 2004 1.8000%
December 15, 2004 1.8000%
June 15, 2005 1.7500%
December 15, 2005 1.7500%
June 15, 2006 1.0000%
December 15, 2006 1.0000%
June 15, 2007 0.9250%
December 15, 2007 0.9250%
June 15, 2008 1.0500%
December 15, 2008 1.0500%
June 15, 2009 1.4250%
December 15, 2009 1.4250%
June 15, 2010 2.0000%
December 15, 2010 2.0000%
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June 15, 2011 2.0500%
December 15, 2011 2.0500%
June 15, 2012 2.2500%
December 15, 2012 2.2500%
June 15, 2013 2.5500%
December 15, 2013 2.5500%
June 15, 2014 3.0000%
December 15, 2014 3.0000%
June 15, 2015 2.9000%
December 15, 2015 2.9000%
June 15, 2016 3.5000%
December 15, 2016 3.5000%
June 15, 2017 3.7000%
December 15, 2017 3.7000%
June 15, 2018 4.4503%
December 15, 2018 4.4503%
June 15, 2019 5.1525%
December 15, 2019 21.5969%
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Exhibit A to Trust Indenture
DEFINITIONS
The following terms shall have the respective meanings assigned to them:
"Acceptable Credit Support" means (1) an irrevocable letter of credit issued by a bank or other financial institution that is rated at least "A2" by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings) and at least "A" by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) or (2) an unconditional guarantee from any Person whose long-term senior unsecured debt obligations are rated (a) for any Affiliate of MidAmerican Holdings or any Permitted Transferee, at least "Baa3" by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings) and at least "BBB-" by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings), and (b) for any other Person, at least "A2" by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings) and at least "A" by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings).
"Acceptable Power Purchase Agreement" means (1) a power
purchase agreement, tolling agreement or similar agreement for the sale of
capacity, energy and/or ancillary services from the Cordova Energy Project with
respect to which a Ratings Reaffirmation is obtained, or (2) a power purchase
agreement, tolling agreement or similar agreement for the sale of capacity,
energy and/or ancillary services from the Cordova Energy Project that (a) has a
counterparty that is rated at least "Baa3" by Moody's (or the equivalent by
another Rating Agency if Moody's is not then providing credit ratings) and at
least "BBB-" by S&P (or the equivalent by another Rating Agency if S&P is not
then providing credit ratings) or whose obligations under such agreement are
backed by Acceptable Credit Support, (b) has a term of at least six months and
(c) has pricing and commercial terms which are, as a whole, equivalent to or
better than the Power Purchase Agreement, as certified (with customary
assumptions and qualifications) by Cordova Energy.
"Accredited Investor" means an institutional "accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act.
"Act" when used with respect to any Holder, has the meaning set forth in Section 6.1 hereof.
"Additional Credit Agreement" means a credit agreement entered into by the Funding Corporation and an Additional Guarantor pursuant to which
the Funding Corporation makes one or more loans to such Additional Guarantor with all or a portion of the net proceeds from the sale of Additional Securities.
"Additional Guarantee" means a guarantee issued by an Additional Guarantor, in favor of the Trustee for the benefit of Holders, pursuant to which such Additional Guarantor guarantees the Funding Corporation's obligation to make payments on the Securities.
"Additional Guarantor" means any Person that issues an Additional Guarantee.
"Additional Project" means any Permitted Power Facility, other than the Cordova Energy Project, the generating assets of which are located within three miles of the Cordova Energy Project Site.
"Additional Project Note" means any promissory note, executed by an Additional Guarantor in favor of the Funding Corporation pursuant to an Additional Credit Agreement.
"Additional Project Document" means any material agreement to which Cordova Energy is a party relating to the development, construction, operation, administration or maintenance of the Cordova Energy Project entered into after the Closing Date.
"Additional Securities" means any Securities issued pursuant to the provisions of Section 2.3 hereof.
"Affiliate" means, with respect to a Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such first Person. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
"Agency Agreement" means (i) the Agency Agreement, dated as of the Closing Date, between the Funding Corporation and Cordova Energy, as amended or supplemented from time to time, and (ii) any similar agency agreement entered into between the Funding Corporation and any Additional Guarantor.
"Approved Completion Plan" means a plan to complete the Cordova Energy Project using Performance Liquidated Damages received from the EPC Contractor and/or other funds available to Cordova Energy, which plan includes (1) a certificate of Cordova Energy, confirmed (with customary assumptions and qualifications) as reasonable by the Independent Engineer,
stating that (a) the funds available to Cordova Energy are reasonably expected to be sufficient to achieve Substantial Completion of the Cordova Energy Project and (b) after achieving Substantial Completion of the Cordova Energy Project, the minimum annual projected Debt Service Coverage Ratio during the remaining term of the Securities is reasonably expected to be equal to or greater than (i) during the term of the Power Purchase Agreement or any Acceptable Power Purchase Agreement, 1.4 to 1.0, and (ii) during any other period, 2.25 to 1.0, or (2) a Ratings Reaffirmation is issued with respect to the completion of the Cordova Energy Project in accordance with such plan.
"Approved Regulated Affiliate Transaction" means, with respect to the Funding Corporation, Cordova Energy or any Additional Guarantor, transactions with an Affiliate of the Funding Corporation, Cordova Energy or such Additional Guarantor, as applicable, that are subject to approval by a public utility regulatory agency having jurisdiction over such Affiliate and that are on terms no less favorable to the Funding Corporation, Cordova Energy or such Additional Guarantor, as applicable, than terms in a comparable arm's-length transaction by the Funding Corporation or Cordova Energy or such Additional Guarantor as applicable, with a Person that is not an Affiliate (except to the extent such agency requires a modification of such terms).
"Authorized Denominations" means, for the Initial Securities, $100,000 or any amount in excess thereof and, for the Additional Securities, $100,000 or any integral multiple of $1,000 in excess thereof, unless otherwise provided in a Supplemental Indenture issued in connection with such Additional Securities.
"Authorized Officer" or "Authorized Representative" means in the case of the Funding Corporation or any Guarantor, the chief executive officer, president, chief financial officer, general counsel, principal accounting officer, treasurer or any vice president of the Funding Corporation or such Guarantor, and when used with reference to any act or document also means any other Person authorized by resolution of such entity to perform such act or execute such document.
"Bankruptcy Event" means, with respect to any Person, that (A) such Person shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) admit in writing its inability, or be generally unable, to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code, (v) file a petition seeking to take advantage of any other Law relating to bankruptcy, insolvency, reorganization, winding-up or composition or readjustment of debts, (vi) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the Federal Bankruptcy Code, or (vii) take any action for the purpose of effecting any of the foregoing; or (B) a proceeding or case shall be commenced without the application or consent of such
Person in any court of competent jurisdiction, seeking (i) its liquidation, reorganization, dissolution, winding-up or the composition or readjustment of debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of the Person under any Law relating to bankruptcy, insolvency, reorganization, winding-up or the composition or readjustment of debts, or (iii) the appointment of a trustee, receiver, custodian, liquidator or the like of the Person under any Law relating to bankruptcy, insolvency, reorganization, winding-up or composition or readjustment of debts, and such proceeding or case shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period of 90 or more consecutive days, or any order for relief against such Person shall be entered in an involuntary case under the Federal Bankruptcy Code.
"Bond Purchase Agreement" means the Bond Purchase Agreement, dated as of September 10, 1999, among each of the Purchasers, the Funding Corporation and Cordova Energy.
"Business Day" means any day that is not a Saturday, Sunday or legal holiday in the State of New York, or a day on which banking institutions chartered by the State of New York, or the United States, are legally required or authorized to close.
"Cedel" shall mean Cedelbank.
"Change of Control" means a failure by MidAmerican Holdings to maintain a direct or an indirect interest in at least 50% of the membership interests in, and the right to control, Cordova Energy, unless at such time a Ratings Reaffirmation is issued with respect to such failure.
"Closing Date" means the date of issuance and delivery of the first Series of Initial Securities.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, the Funding Corporation Collateral and the Cordova Energy Collateral.
"Collateral Agent" means Chase Manhattan Bank and Trust Company, National Association, as collateral agent for the benefit of the Secured Parties under the Intercreditor Agreement, together with its successors and assigns.
"Collateral Assignment" means the Collateral Assignment (Project Documents), dated as of September 10, 1999, by Cordova Energy in favor of the Collateral Agent.
"ComEd Interconnection Agreement" means the Interconnection Agreement, dated as of September 2, 1999, between Cordova Energy and Commonwealth Edison Company, as amended from time to time, and any replacement agreement.
"Common Facilities Agreement" means any one or more agreements between Cordova Energy and any direct or indirect owner or any operator of an Additional Project which provides for the sharing of land, transmission lines, interconnections, utilities and other rights, interests, facilities and equipment between the Cordova Energy Project and such Additional Project or the use by such Additional Project of Cordova Energy's land, transmission lines, interconnections, utilities and other rights, interests, facilities and equipment.
"Commonly Controlled Entity" means, as applied to the Funding
Corporation, any Person who is a member of a group which is under common control
with the Funding Corporation, who together with the Funding Corporation is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 400(b) of ERISA.
"Construction Agreement" means the Construction Agreement, dated as of May 25, 1999, between Cordova Energy and MidAmerican Energy.
"Construction Account" means the Account of such name established pursuant to Section 2.2 of the Depositary Agreement and having the following account number at the Securities Intermediary: C-29312A.
"Consumer Price Index" means the consumer price index as published by the United States Department of Labor, Bureau of Labor Statistics.
"Continuing Request" means a written notice from a Holder or beneficial owner of a Security delivered to the Trustee and the Funding Corporation requesting that the items required to be delivered to the Trustee pursuant to Section 4.2(a) and (b) of the Indenture be furnished to such Holder until further notice from such Holder or beneficial owner to the contrary; provided, however, that any such request shall expire if not renewed by such Holder or beneficiary owner every two years.
"Cordova Energy Collateral" means all of the collateral in which the Collateral Agent has or is purported to have a security interest pursuant to the Security Documents (other than the Stock Pledge Agreement).
"Cordova Energy Credit Agreement" means the Credit Agreement, dated as of September 10, 1999, by and between Funding Corporation, as lender, and Cordova Energy, as borrower.
"Cordova Energy Guarantee" means the Secured Guarantee, dated as of the Closing Date, issued by Cordova Energy in favor of the Trustee for the benefit of Holders.
"Cordova Energy Project" means an approximately 537 MW natural gas-fired combined-cycle electric generating facility which is owned by Cordova Energy and which will be located on the Cordova Energy Project Site.
"Cordova Energy Project Note" shall mean the promissory note dated September 10, 1999 executed by Cordova Energy in favor of the Funding Corporation pursuant to the Cordova Energy Credit Agreement.
"Cordova Energy Project Site" means the site in Rock Island County, Illinois at which the Cordova Energy Project is located.
"Covenant Defeasance" has the meaning set forth in Section 9.3 hereof.
"Credit Agreement Default" means an event or condition that, with the giving of notice or the lapse of time, or both, would become a Credit Agreement Event of Default.
"Credit Agreement Event of Default" means an "Event of Default" as defined in the Cordova Energy Credit Agreement.
"Credit Agreements" means collectively, the Cordova Energy Credit Agreement and any Additional Credit Agreements.
"Custodian" has the meaning set forth in Section 2.5 hereof.
"Debt Service Coverage Ratio" means, for any period, without duplication, the ratio of (1) (a) all revenues of Cordova Energy (including interest and fee income, net hedging receipts, business interruption and delay in start-up insurance and Loss Proceeds and Title Insurance Proceeds deposited into the Revenue Account, but excluding Loss Proceeds and Title Insurance Proceeds not deposited into the Revenue Account and other similar non-recurring receipts not deposited into the Revenue Account) for such period minus (b) O&M Costs (but excluding O&M Costs funded from the Major Maintenance Reserve Account) for such period and all deposits into the Major Maintenance Reserve Account made during such period, to (2) all principal and interest (other than interest during construction and other similar payments which are pre-funded with the proceeds of a debt issuance or otherwise) payments due with respect to outstanding (without duplication) Permitted Debt (other than Subordinated Indebtedness and the Guaranteed Payment, provided that (x) a Bankruptcy Event (as defined in the MidAmerican Holdings Guarantee) and (y) a MEHC Change of Control (as defined in the Mid American Holdings Guarantee), each with respect
to MidAmerican Holdings, shall not have occurred and be continuing for a period of six (6) months) during such period, all as determined on a cash basis in accordance with GAAP.
"Debt Service Required Balance" means, as of any Funding Date,
(1) with respect to each series of Securities and each other issuance of
Permitted Debt that is pari passu in right of payment with the Securities, an
amount equal to the scheduled principal, premium (if any) and interest due on
such series of Securities and other issuances of Permitted Debt on the
immediately succeeding Scheduled Payment Date therefor (other than the
Guaranteed Payment, provided that (x) a Bankruptcy Event (as defined in the
MidAmerican Holdings Guarantee) and (y) a MEHC Change of Control (as defined in
the Mid American Holdings Guarantee), each with respect to MidAmerican Holdings,
shall not have occurred and be continuing for a period of six (6) months), and
(2) with respect to any principal of any loans outstanding under any Debt
Service Reserve LOC Reimbursement Agreement the payment of which is subordinated
o payments on the Securities, an amount equal to the scheduled interest due on
such principal on the immediately succeeding Scheduled Payment Date therefor.
"Debt Service Reserve Guarantee" means an unconditional guarantee of Cordova Energy's obligation to maintain the Debt Service Reserve Required Balance from time to time issued by MidAmerican Holdings or any Permitted Transferee in favor of the Trustee for the benefit of Holders.
"Debt Service Reserve Guarantor" means MidAmerican Holdings or any Permitted Transferee under a Debt Service Reserve Guarantee, in each case to the extent such Person has continuing obligations under such Debt Service Reserve Guarantee.
"Debt Service Reserve Letter of Credit" means one or more irrevocable, direct pay letters of credit issued by a Debt Service Reserve LOC Provider in favor of the Securities Intermediary pursuant to a Debt Service Reserve LOC Reimbursement Agreement.
"Debt Service Reserve LOC Reimbursement Agreement" means an agreement pursuant to which the Debt Service Reserve LOC Provider issues one or more Debt Service Reserve Letters of Credit.
"Debt Service Reserve LOC Provider" means a commercial bank or other financial institution rated at least "A2" by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings) and at least "A" by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) issuing any Debt Service Reserve Letter of Credit.
"Default" means an event or condition that, with the giving of notice, lapse of time or failure to satisfy certain specified conditions, or any combination thereof, would become an Event of Default.
"Defeasance" has the meaning set forth in Section 9.2 hereof.
"Depositary" has the meaning set forth in Section 2.6 hereof.
"Depositary Agreement" means the Deposit and Disbursement Agreement, dated as of the Closing Date, among the Funding Corporation, Cordova Energy, the Collateral Agent and the Securities Intermediary.
"Discounted Present Value" has the meaning set forth in
Section 3.1(b) hereof.
"Distribution Account" means the Account of such name established pursuant to Section 2.2 of the Depositary Agreement and having the following account number at the Securities Intermediary: C-29312F.
"DTC" means The Depository Trust Company, having a principal office at 55 Water Street, New York, New York, 10041-0099, together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially all of its assets, including substantially all of its securities payment and transfer operations.
"DTC Representation Letter" means a Letter of Representations among DTC, the Funding Corporation and the Trustee, or any successor agreement relating to any Additional Securities.
"Eligible Facility" means an "eligible facility" in accordance with Section 32 of the Public Utility Holding Company Act of 1935, as amended, 15 U.S.C. ss. 79z-5a(a)(2) (1994), and the rules and regulations of FERC relating thereto.
"El Paso" means El Paso Power Services Company, a Delaware corporation.
"El Paso Termination Payment" means the lump sum payment made by El Paso, if El Paso exercises its option to terminate the Power Purchase Agreement pursuant to Section 6 of the Power Purchase Agreement.
"Environmental Laws" means any and all Laws (as well as obligations, duties and requirements relating thereto under common law) relating to: (i) noise, emissions, discharges, spills, releases or threatened releases of pollutants, contaminants, Environmentally Regulated Materials, materials containing Environmentally Regulated Materials, or hazardous or toxic materials or wastes into ambient air, surface water, groundwater, watercourses, publicly
or privately-owned treatment works, drains, sewer systems, wetlands, septic systems or onto land surface or subsurface strata; (ii) the use, treatment, storage, disposal, handling, manufacture, processing, distribution, transportation or shipment of Environmentally Regulated Materials, materials containing Environmentally Regulated Materials or hazardous and/or toxic wastes, material, products or by-products (or of equipment or apparatus containing Environmentally Regulated Materials); (iii) pollution or the protection of human health, the environment or natural resources; or (iv) zoning and land use.
"Environmentally Regulated Materials" means (i) hazardous materials, hazardous wastes, hazardous substances, extremely hazardous wastes, restricted hazardous wastes, toxic substances, toxic pollutants, contaminants, pollutants or words of similar import, as used under Environmental Laws, including but not limited to the following: the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., the Clean Water Act, 33 U.S.C. 1231 et seq., the Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. ss. 3808 et seq., and the Oil Pollution Act, 33 U.S.C. ss. 2701 et seq. and their State and local counterparts or equivalents; (ii) petroleum and petroleum products including crude oil and any fractions thereof; (iii) natural gas, synthetic gas and any mixtures thereof; (iv) radon; (v) any other hazardous, radioactive, toxic or noxious substance, material, pollutant or solid, liquid or gaseous waste; and (vi) any substance that, whether by its nature or its use, is now or hereafter subject to regulation under any Environmental Law or with respect to which any Federal, state or local Environmental Law or governmental agency requires environmental investigation, monitoring or remediation.
"EPC Contract" means the Engineering, Procurement and Construction Contract, dated as of May 4, 1999, between Cordova Energy and the EPC Contractor or any replacement thereof.
"EPC Contractor" means Stone & Webster Engineers and Con- structors, Inc., or any replacement thereof.
"EPC Guarantee" means the Guarantee, dated as of May 4, 1999, by Stone & Webster, Incorporated for the benefit of Cordova Energy.
"Equity Commitment Agreement" means the Equity Commitment Agreement, dated as of the Closing Date, among MidAmerican Holdings, Cordova Energy and the Collateral Agent.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System, or any successor to Morgan Guaranty Trust Company of New York, Brussels office, as operator thereof.
"Event of Default" means the occurrence of any of the events set forth in Section 5.1 hereof.
"EWG" or "Exempt Wholesale Generator" means an "exempt wholesale generator" in accordance with Section 32 of the Public Utility Holding Company Act of 1935, as amended, 15 U.S.C. ss. 79z-5a(a)(1) (1994), and the rules and regulations of FERC relating thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means an "Exchange Offer" as defined in any Registration Rights Agreement.
"Exchange Securities" means "Exchange Securities" as defined in any Registration Rights Agreement.
"Expansion Modifications" means modifications or improvements to the Cordova Energy Project or any Additional Project that are designed to increase the net generating capacity and/or the efficiency of the Cordova Energy Project or such Additional Project, as the case may be, which are not Required Modifications or Optional Modifications.
"Facilities Agreement" means the Facilities Agreement, dated as of April 2, 1999, between Cordova Energy and MidAmerican Energy.
"Federal Bankruptcy Code" means Title 11 of the United States Code.
"FERC" means the United States Federal Energy Regulatory Commission, or any successor thereto.
"Final Completion" means achievement of "Final Completion," as such term is defined in the EPC Contract.
"Final Completion Date" means the date on which the Cordova Energy Project achieves or is deemed to have achieved Final Completion.
"Financing Documents" means, collectively, the Indenture, the Securities, the Credit Agreements, the Guarantees, the Depositary Agreement, the
Intercreditor Agreement, the Security Documents, the Equity Commitment Agreement and any Debt Service Reserve LOC Reimbursement Agreement.
"Funding Corporation" means Cordova Funding Corporation, a Delaware corporation, and its permitted successors and assigns.
"Funding Corporation Collateral" means all of the collateral in which the Collateral Agent has or is purported to have a security interest pursuant to the Stock Pledge Agreement.
"GAAP" means generally accepted accounting principles as in effect in the United States from time to time.
"Gas Distribution Agreement" means the Firm Natural Gas Distribution Agreement, dated as of July 6, 1999, between MidAmerican Energy and Cordova Energy.
"Global Securities" means, collectively, in respect of each series of Securities, (a) the single (or multiple, as required) global security in registered form for each series of Securities issued to QIBs and (b) the Offshore Global Securities.
"Governmental Approvals" means all governmental approvals, authorizations, consents, decrees, permits, waivers, privileges and filings with Governmental Authorities required to be obtained for construction, operation and maintenance of the Cordova Energy Project.
"Governmental Authority" means the government of any federal, state, municipal or other political subdivision in which the Cordova Energy Project is located, and any other government or political subdivision thereof exercising jurisdiction over the Cordova Energy Project or any party to any of the Project Documents, including all agencies and instrumentalities of such governments and political subdivisions.
"Guaranteed Payment" has the meaning given to such term in the MidAmerican Holdings Guarantee.
"Guarantee Event of Default" means an "Event of Default" under and as defined in the Cordova Energy Guarantee or any Additional Guarantee.
"Guarantee Permitted Transferee" has the meaning set forth in the MidAmerican Holdings Guarantee.
"Guaranteed Substantial Completion Date" means February 28, 2003, as may be modified in connection with an Approved Completion Plan.
"Guarantees" means, collectively, the Cordova Energy Guarantee and any Additional Guarantee.
"Guarantors" means, collectively, Cordova Energy and any Additional Guarantor.
"Holder" means the registered holder of any Security from time to time.
"Indebtedness" of any Person at any date means, without duplication, (1) all obligations of such Person for borrowed money, (2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (3) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (4) all obligations of such Person under leases which are or should be, in accordance with GAAP, recorded as capital leases for which such Person is liable, (5) all obligations of such Person under interest rate or currency protection agreements or other hedging instruments, (6) all obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities (or property), (7) all deferred obligations of such Person to reimburse any bank or other Person for amounts paid or advanced under a letter of credit or other instrument, (8) all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, and (9) all Indebtedness of others guaranteed directly or indirectly by such Person or as to which such Person has an obligation substantially the economic equivalent of a guarantee or other arrangement to assure a creditor against loss.
"Independent" means a Person who (i) does not have any material direct financial interest or any material indirect financial interest in the Funding Corporation or Cordova Energy (exclusive of payments received for consulting services provided) and (ii) is not connected with the Funding Corporation or Cordova Energy as an officer, employee, promoter, underwriter, partner, director or person performing similar functions.
"Independent Engineer" means Burns & McDonnell Engineering Company, or another widely recognized Independent engineering firm or engineer retained as independent engineer by the Funding Corporation.
"Intercreditor Agreement" means the Collateral Agency and Intercreditor Agreement, dated as of the Closing Date, among the Collateral Agent, the Securities Intermediary, the Trustee, the other Secured Parties from time to time party thereto, the Funding Corporation and Cordova Energy.
"Interest Rate Protection Agreement" means any agreement providing for swaps, ceiling rates, ceiling and floor rates, contingent participation or other hedging mechanisms with respect to the payment of interest.
"Investment Company Act" means the Investment Company Act of 1940, as amended.
"Law" means any act, permit, constitution, treaty, law, ordinance, decree, code, regulation (including regulations governing environmental matters), order, rule, final judicial or arbitral decision or binding requirement of any Governmental Authority and any voluntary restraint with which such party has formally agreed to comply.
"Liens" means any mortgage, pledge, hypothecation, assignment, mandatory deposit arrangement with any Person owning Indebtedness of such Person, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever which has the substantial effect of constituting a security interest, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same effect as any of the foregoing and the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any jurisdiction, domestic or foreign.
"Loss Event" means (i) an event (other than a Title Defect) which causes all or a portion of the Cordova Energy Project to be damaged, destroyed or rendered unfit for normal use, and for which Cordova Energy is entitled to file a claim under the insurance policies covering the Cordova Energy Project, or (ii) a compulsory transfer or taking or transfer under the threat of compulsory transfer or taking of all or a substantial portion of the Cordova Energy Project by a Governmental Authority, unless such transfer or taking is the subject of a good faith contest.
"Loss Proceeds" means (x) all proceeds actually received by Cordova Energy in connection with a Loss Event, other than proceeds of business interruption, delay in start-up or similar insurance and Title Insurance Proceeds, minus (y) all costs and expenses incurred in litigating, arbitrating, compromising, settling or consenting to the settlement of any claims related to such Loss Event and all other costs and expenses incurred in recovering such proceeds.
"Major Maintenance Reserve Account Shortfall" means, for any Funding Date, an amount equal to the Monies required to be deposited or transferred into the Major Maintenance Reserve Account on such Funding Date pursuant to Section 3.2(c)(iv) of the Depositary Agreement less the Monies actually deposited into the Major Maintenance Reserve Account on such Funding Date pursuant to Section 3.2(c)(iv) of the Depositary Agreement.
"Major Maintenance Reserve Requirement" means an amount initially equal to $584,000 per month. The Major Maintenance Reserve Requirement may be adjusted as follows: Cordova Energy may, from time to time, provide the Independent Engineer with a proposed schedule of monthly deposits (which may be
equal monthly deposits) to the Major Maintenance Reserve Account which provide, in the aggregate (inclusive of interest estimated to accrue thereon), sufficient funds for the completion of all turbine overhauls through and including the next major overhaul. Such proposed schedule will become the then applicable schedule, and the monthly deposits reflected therein will become, for each month, the Major Maintenance Reserve Requirement, if the Independent Engineer confirms (with customary assumptions and qualifications) that Cordova Energy is reasonably expected to have sufficient funds to fully fund each monthly Major Maintenance Reserve Requirement through the term of such proposed schedule; provided, however, that if there is a Major Maintenance Reserve Account Shortfall on any Funding Date, the Major Maintenance Reserve Requirement for the next succeeding Funding Date shall be the sum of (a) the Major Maintenance Reserve Requirement for such next succeeding Funding Date and (b) the Major Maintenance Reserve Account Shortfall for such current Funding Date.
"Mandatory Redemption Fund" has the meaning set forth in
Section 3.2 hereof.
"Material Adverse Effect" means a material adverse effect on
(i) the business, operations or financial condition of the Funding Corporation
and the Guarantors, taken as a whole, (ii) the ability of the Funding
Corporation and the Guarantors to perform their material obligations under any
of the Financing Documents to which they are a party, or (iii) the validity or
priority of the liens on the Cordova Energy Collateral.
"MEC Interconnection Agreement" means the Interconnection Agreement, dated as of April 2, 1999, between MidAmerican Energy and Cordova Energy.
"Membership Interests Pledge Agreement" means the Pledge Agreement, dated as of the Closing Date, by Quad Cities in favor of the Collateral Agent.
"MidAmerican Energy" means MidAmerican Energy Company, an Iowa corporation.
"MidAmerican Holdings" means MidAmerican Energy Holdings Company, an Iowa corporation.
"MidAmerican Holdings Guarantee" means the Senior Unsecured Limited Guarantee entered into on the Closing Date by MidAmerican Holdings in favor of the Trustee for the benefit of the Holders of the Initial Securities.
"Monies" means all cash, payments, financial assets, securities, investment property, Permitted Investments and other amounts, including instruments evidencing such amounts, on deposit or credited to any Account.
"Moody's" means Moody's Investors Service, Inc., a corporation organized and existing under the laws of the State of Delaware, and its successors and assigns.
"Mortgage and Security Agreement" means the Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, dated as of the Closing Date, by Cordova Energy in favor of the Collateral Agent.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"MW" means a unit of electrical energy equal to one million
watts of power.
"O&M Agreement" means the Operating, Maintenance and Administrative Services Agreement, dated as of the Closing Date, between Cordova Energy and CalEnergy Generation Operating Company.
"O&M Costs" means the operating, maintenance, ownership, administration or repair costs of the Cordova Energy Project, including, without limitation, fuel costs, insurance premiums, property and other taxes, legal fees, financing fees and payments under the Project Documents, provided that O&M Costs do not include costs funded by withdrawals from the Major Maintenance Reserve Account.
"Offshore Securities Exchange Date" shall have the meaning set forth in Section 2.5(a) hereof.
"Officer's Certificate" means (i) with respect to the Funding Corporation, a certificate executed by an Authorized Representative of the Funding Corporation, and (ii) with respect to Cordova Energy, a certificate executed by an Authorized Representative of Cordova Energy.
"Opinion of Counsel" shall mean a written opinion of counsel for any Person either expressly referred to herein or otherwise reasonably satisfactory to the Trustee which may include, without limitation, counsel for the Funding Corporation, whether or not such counsel is an employee of the Funding Corporation.
"Optional Modifications" means discretionary modifications or improvements to the Cordova Energy Project or any Additional Project other than Required Modifications or Expansion Modifications.
"Outstanding" in connection with Securities means, as of the
time in question, all Securities authenticated and delivered under the
Indenture, except (a) Securities theretofore cancelled or required to be
cancelled under Section 2.10 of this Indenture; (b) Securities for which
provision for payment shall have been made in accordance with this Indenture;
(c) Securities in substitution for which other Securities have been
authenticated and delivered pursuant to this Indenture; (d) Initial Securities which have not been sold by the Funding Corporation and purchased by the Purchasers pursuant to Section 2 of the Bond Purchase Agreement; and (e) Securities directly or indirectly held by the Funding Corporation, Cordova Energy or any of their respective Affiliates.
"Paying Agent" means any Person acting as Paying Agent pursuant to this Indenture and Section 10.12 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performance Liquidated Damages" means performance liquidated damages paid by the EPC Contractor to Cordova Energy pursuant to the EPC Contract as a consequence of the Cordova Energy Project's failure to meet the performance guarantees set forth in the EPC Contract, less any costs incurred by Cordova Energy in connection with the collection of such liquidated damages.
"Permitted Cordova Energy Debt" has the meaning given to such term in Section 4.10 of the Cordova Energy Credit Agreement.
"Permitted Debt" means, without duplication, Permitted Funding Debt, Permitted Cordova Energy Debt and any Indebtedness of an Additional Guarantor permitted to be incurred by such Additional Guarantor pursuant to the Additional Credit Agreement to which it is a party.
"Permitted Funding Debt" has the meaning given to such term in
Section 4.9.
"Permitted Hedging Transactions" means (i) physical or financial transactions for the forward or future purchase or sale of gas, gas transportation, capacity, energy, ancillary services, transmission or related products, and (ii) interest rate hedging transactions designed to reduce exposure to fluctuations in yields to maturity for United States treasury securities, provided that, with respect to clause (i), such transactions (a) shall not be entered into for speculative purposes and (b) shall not be for quantities of capacity, energy or ancillary services that exceed the anticipated output of the Cordova Energy Project or for quantities of gas, gas transportation or transmission that exceed the anticipated requirements of the Cordova Energy Project.
"Permitted Investments" means investments in securities that are: (1) direct obligations of the United States or any agency thereof; (2) obligations fully guaranteed by the United States or any agency thereof; (3) certificates of deposit or bankers acceptances issued by commercial banks (including the Trustee, the Collateral Agent, the Securities Intermediary or any of their respective affiliates) organized under the laws of the United States or of any political subdivision thereof or under the laws of Canada, Japan, Switzerland or any country that is a member of the European Economic Community
having a combined capital and surplus of at least $250,000,000 and having long-term unsecured debt securities then rated "A" or better by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) or "A2" or better by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings), but at the time of investment not more than $25,000,000 may be invested in such certificates of deposit from any one bank; (4) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (1) and (2) above, entered into with any financial institution meeting the qualifications specified in clause (3) above; (5) open market commercial paper of any corporation incorporated or doing business under the laws of the United States or of any political subdivision thereof having a rating of "A-1" or better from S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) or "P-1" from Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings), but at the time of investment not more than $25,000,000 may be invested in such commercial paper from any one corporation; (6) auction rate securities or money market preferred stock having one of the two highest ratings obtainable from S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) or Moody's (or the equivalent by other Rating Agencies if Moody's is not then providing credit ratings); (7) corporate bonds having a rating of "A" or better by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) or "A2" or better by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings); (8) investments in money market funds or money market mutual funds sponsored by any securities broker dealer of recognized national standing (or an affiliate thereof) having an investment policy that requires substantially all the invested assets of such fund to be invested in investments described in any one or more of the foregoing clauses having a rating of "A" or better by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) or "A2" or better by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings), including money market funds for which the Securities Intermediary, in its individual capacity, its parent or any of its affiliates is investment manager or adviser or (9) investments in a cash escrow trust account maintained in the Securities Intermediary or one of its Affiliates.
"Permitted Liens" means, with respect to any Person: (i) Liens to secure Permitted Debt of such Person; (ii) Liens existing on the Closing Date, including, without limitation, exceptions to title set forth in the lenders' title insurance policy; (iii) Liens for taxes, assessments or governmental charges which are either not yet due or which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (iv) Liens in connection with workers' compensation, unemployment insurance or other social security or pension obligations; (v) mechanics', workmen's, materialmen's, suppliers', construction or other like Liens arising in the ordinary course of business or incident to the construction of the Cordova Energy Project; (vi) servitudes, easements, rights-of-way, restrictions, minor defects or irregularities in title and such other encumbrances or charges against real property or interests
therein as are of a nature generally existing with respect to properties of a similar character and which do not in any material way interfere with the use thereof by such Person in the conduct of its business; (vii) deposits or pledges to secure statutory obligations or appeals, release of attachments, stay of execution or injunction, performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or for purposes of like general nature in the ordinary course of business; (viii) legal or equitable encumbrances deemed to exist because of the existence of any litigation or other legal proceeding, so long as such encumbrances are subject to a good faith contest; (ix) other Liens incidental to the conduct of such Person's business or the ownership of properties and assets which were not incurred in connection with the borrowing of money or the obtaining of advances or credit (other than vendor's Liens for accounts payable in the ordinary course of business) and which do not materially impair the use thereof by such Person in the conduct of its business; (x) Liens substantially similar to the Liens described above so long as any such Liens, if foreclosed upon, would not reasonably be expected to result in a Material Adverse Effect; (xi) Liens arising as a consequence of the execution of a Common Facilities Agreement; and (xii) Liens in favor of Commonwealth Edison Company as required under the ComEd Interconnection Agreement.
"Permitted Power Facility" means an electric power generation or cogeneration facility, including any related or ancillary facilities or equipment.
"Permitted Transferee" means, for any transfer by MidAmerican Holdings of all or a portion of its obligations under any Equity Commitment Agreement or any Debt Service Reserve Guarantee, any person which (1) has a long-term unsecured debt rating of (a) if such transfer of obligations is made in connection with a corresponding transfer of MidAmerican Holdings' equity interests in Cordova Energy, at least "Baa3" from Moody's (or the equivalent from another Rating Agency if Moody's is not then providing credit ratings) and at least "BBB-" from S&P (or the equivalent from another Rating Agency if S&P is not then providing credit ratings), and (b) otherwise, at least "A" or better from S&P (or the equivalent from another Rating Agency if S&P is not then providing credit ratings) and at least "A2" from Moody's (or the equivalent from another Rating Agency if Moody's is not then providing credit ratings), or (2) provides Acceptable Credit Support to support such obligations.
"Person" means any individual, sole proprietorship, corporation, partnership, joint venture, limited liability partnership, limited liability company, limited liability corporation, trust, unincorporated association, institution, Governmental Authority or any other entity.
"Plan" means an employee benefit or other plan established or maintained by the Funding Corporation or any Commonly Controlled Entity and which is covered by Title IV of ERISA, other than a Multiemployer Plan.
"Policy Act" means the Energy Policy Act of 1992.
"Power Purchase Agreement" means the Power Purchase Agreement, dated as of July 6, 1999, as amended as of September 3, 1999, between Cordova Energy and El Paso.
"PPA Factor" means, for any period, the percentage obtained from the following calculation: (a) (i) all revenues of Cordova Energy for such period derived under the Power Purchase Agreement and/or any Acceptable Power Purchase Agreement divided by (ii) all revenues of Cordova Energy for such period derived from sales of capacity, energy and ancillary services from the Cordova Energy Project, multiplied by (b) 100; provided that the PPA Factor shall be deemed to be 100% at any time that at least 510 MW (based on the Specified Ambient Conditions) of the Cordova Energy Project's capacity is subject to the Power Purchase Agreement or an Acceptable Power Purchase Agreement.
"Principal Amount" means as to any Security or Securities the amount set forth on the face of each such Security as such amount is reduced by payments made or deemed made thereon as provided herein.
"Project Notes" means, collectively, the Cordova Energy Project Note and any Additional Project Notes.
"Project Documents" means the Power Purchase Agreement, the EPC Contract, the O&M Agreement, the Construction Agreement, the MEC Interconnection Agreement, the Facilities Agreement, the Gas Distribution Agreement and any Additional Project Document entered into by Cordova Energy with respect to the Cordova Energy Project.
"Projects" means, collectively, the Cordova Energy Project and any Additional Projects.
"PUHCA" means the Public Utility Holding Company Act of 1935, as amended.
"PURPA" means the Public Utility Regulatory Policies Act of 1978.
"QIB" or "Qualified Institutional Buyer" has the meaning set forth in Section 2.5(a) hereof.
"Rating" means the ratings assigned to the Securities by the Rating Agencies.
"Rating Agencies" means, collectively, Moody's and S&P, together with any other nationally recognized credit rating agency of similar standing if any such entity is not then currently rating the Securities or the applicable Person or obligation.
"Ratings Reaffirmation" means, with respect to a specified event, a confirmation from Moody's (or the equivalent from another Rating Agency if Moody's is not then providing credit ratings) and S&P (or the equivalent from another Rating Agency if S&P is not then providing credit ratings) that a lowering of the then-current ratings of the Securities will not result from such event.
"Record Date" means with respect to each Scheduled Payment Date, except a Scheduled Payment Date in connection with an optional or mandatory redemption, the first day of the calendar month, whether or not a Business Day, immediately preceding such Scheduled Payment Date, and means with respect to each Scheduled Payment Date in connection with an optional or mandatory redemption, the fifteenth day, whether or not a Business Day, preceding such Scheduled Payment Date.
"Redemption Date" has the meaning set forth in Section 3.2 hereof.
"Redemption Account" means the Account of such name established pursuant to Section 2.2 of the Depositary Agreement and having the following account number at the Securities Intermediary: C-29312G.
"Redemption Price" means an amount equal to the principal amount, premium (if any) and interest accrued to but not including the Redemption Date to be paid for Securities redeemed prior to maturity, as specified in the notice of redemption given pursuant to Section 3.4 hereof.
"Registrar" has the meaning set forth in Section 2.5(b) hereof.
"Registration Rights Agreement" means any exchange and registration rights agreement for any issuance of Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Required Holders" means those Holders holding more than 50% in aggregate principal amount of the Outstanding Securities.
"Required Modifications" means (i) modifications or improvements to the Cordova Energy Project or any Additional Project which are necessary to comply with applicable law or governmental approvals or which Cordova Energy or the applicable Additional Guarantor, as the case may be, reasonably believes are necessary or appropriate in response to enacted or anticipated changes in applicable law or the interpretation thereof, or (ii)
modifications to the Cordova Energy Project or any Additional Project which are necessary to achieve final completion thereof after the utilization of all capital contributions made by MidAmerican Holdings and/or any Permitted Transferee under any equity commitment agreement executed in favor of Cordova Energy or the applicable Additional Guarantor.
"Responsible Officer" means, with respect to any Person and any subject matter or event, the president, chief executive officer, chief financial officer, general counsel, treasurer, vice president or other officer of such Person in each case who in the normal performance of his or her operational duties would have knowledge of such subject matter or event.
"Restricted Payments" means, with respect to any Person, (i) the declaration and payment of distributions, dividends or other payments in respect of the equity interests in such Person, (ii) the payment of principal of or interest on any Subordinated Indebtedness incurred by such Person or (iii) the making of any loans or advances to any Affiliate of such Person, in each case from cash or Permitted Investments on deposit in the Distribution Account.
"Restricted Security" means any Security that bears or is required to bear the legend set forth in the first and second paragraphs of the form of Security attached to this Indenture as Exhibit B, or similar legend set forth in any form of security attached to a Supplemental Indenture, as the case may be.
"Revenue Account" means the account of such name established pursuant to Section 2.2 of the Depositary Agreement and having the following account number at the Securities Intermediary: C-29312B.
"Rule 144A" means Rule 144A under the Securities Act.
"S & P" means Standard & Poor's Ratings Group, a corporation organized and existing under the laws of the State of New York, its successors and assigns.
"Scheduled Payment Date" means (i) with respect to any Security, each June 15, and December 15, and (ii) with respect to any other issuance of Permitted Debt, any date on which a principal and/or interest payment on such issuance of Permitted Debt is scheduled to be made.
"Scheduled Substantial Completion Date" means July 31, 2001, as may be modified in connection with an Approved Completion Plan.
"Secured Obligations" means all indebtedness, liabilities and obligations, of whatsoever nature and howsoever evidenced (including, but not limited to, principal, interest, fees, reimbursement obligations, penalties, indemnities and legal and other expenses, whether due after acceleration or otherwise), of the Funding Corporation and the Guarantors to the Secured Parties, in each case, direct or indirect, primary or secondary, fixed or contingent, now or hereafter arising.
"Secured Parties" means the Trustee (on behalf of the Holders of the Outstanding Securities), the Collateral Agent, the Securities Intermediary and each other party that becomes a Secured Party pursuant to the terms of the Intercreditor Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means Chase Manhattan Bank and Trust Company, National Association, as Securities Intermediary under the Depositary Agreement or any successor thereto pursuant to the terms thereof.
"Securities Register" has the meaning set forth in Section 2.5(b) hereof.
"Security" or "Securities" means any of the Initial Securities and any of the Additional Securities issued pursuant to the Indenture or any Supplemental Indenture.
"Security Documents" means the Mortgage and Security Agreement, the Collateral Assignment, the Membership Interests Pledge Agreement and the Stock Pledge Agreement.
"Series" has the meaning set forth in Section 2.2(a) hereof.
"Series A Final Maturity Date" has the meaning set forth in
Section 2.2(a) hereof.
"Special Make-Whole Premium" has the meaning given to such term in Exhibit B hereto, as calculated by the Funding Corporation.
"Specified Ambient Conditions" means 59 degrees Fahrenheit and 60% relative humidity.
"Standard Make-Whole Premium" has the meaning given to such term in Exhibit B hereto, as calculated by the Funding Corporation.
"Stock Pledge Agreement" means the Pledge Agreement, dated as of the Closing Date, by MidAmerican Holdings in favor of the Collateral Agent.
"Subordinated Indebtedness" means Indebtedness (and the note or other instrument evidencing the same) which has been subordinated on terms and conditions substantially the same as those attached hereto as Exhibit D, to the prior payment of amounts owing under this Indenture and the Securities.
"Substantial Completion" means satisfaction in all material
respects of the conditions precedent set forth in Section 15.3 of the EPC
Contract, as confirmed by the Independent Engineer (with customary assumptions
and qualifications); provided that the Cordova Energy Project shall be deemed to
have achieved Substantial Completion notwithstanding the failure to achieve
Substantial Performance Tests Completion if (i) the Funding Corporation shall
have redeemed Securities in accordance with Section 3.1(c) of the Indenture and
(ii) the Initial Securities shall then have Ratings which are equivalent to or
better than the ratings assigned to the Initial Securities on the initial
Closing Date.
"Substantial Completion Date" means the date on which the Cordova Energy Project achieves or is deemed to have achieved Substantial Completion.
"Substantial Performance Tests Completion" means "substantial performance tests completion" as such term is defined in the EPC Contract.
"Substitute Power Purchase Agreement" means (i) a power purchase agreement, tolling agreement or similar agreement for the sale of capacity, energy and/or ancillary services from the Cordova Energy Project with respect to which a Ratings Reaffirmation is obtained, or (ii) a power purchase agreement, tolling agreement or similar agreement for the sale of capacity, energy and/or ancillary services from the Cordova Energy Project that (a) has a counterparty that is rated at least "Baa3" by Moody's (or the equivalent by another Rating Agency if Moody's is not then providing credit ratings) and at least "BBB-" by S&P (or the equivalent by another Rating Agency if S&P is not then providing credit ratings) or whose obligations under such agreement are backed by Acceptable Credit Support, (b) has pricing and commercial terms which are, as a whole and together with the terms of any other Substitute Power Purchase Agreement then in effect, equivalent to or better than the Power Purchase Agreement, as certified (with customary assumptions and qualifications) by Cordova Energy and (c) has fixed capacity payments (or the equivalent thereof) which, at equivalent availability factors (after giving effect to applicable availability penalties and bonuses), are equivalent to or better than the Guaranteed Payment (as defined in the Power Purchase Agreement), as certified (with customary assumptions and qualifications) by Cordova Energy.
"Supplemental Indenture" means an Indenture supplemental to this Indenture entered into by the Funding Corporation and the Trustee for any of the purposes set forth in Article VII.
"Temporary Offshore Global Securities" shall have the meaning set forth in Section 2.5(a) hereof.
"Title Defect" means the existence of any defect in the title to the Cordova Energy Project (other than Permitted Liens) in effect on the Closing Date which entitles the Collateral Agent to make a claim under the Title Insurance Policy.
"Title Insurance Policy" means any title insurance policy which insures the Collateral Agent's mortgage on the Cordova Energy Project Site.
"Title Insurance Proceeds" means any proceeds actually received by the Collateral Agent under the Title Insurance Policy in connection with a Title Defect.
"Transaction Documents" means, collectively, the Project Documents and the Financing Documents.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trustee" means Chase Manhattan Bank and Trust Company, National Association and its successors, and any corporation resulting from or surviving any consolidation or merger to which it or its successors may be a party, or any successor to all or substantially all of its corporate trust business, provided that any such successor or surviving corporation shall be eligible for appointment as trustee pursuant to Section 10.8, until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter shall mean such successor Trustee.
"Working Capital Facility" means any agreement or agreements from time to time in effect among the Funding Corporation and/or one or more Guarantors and banks or other financial institutions providing for the availability of working capital loans to the Funding Corporation and the Guarantors.
"Working Capital Facility Provider" means the commercial bank(s) or financial institution(s) providing working capital debt pursuant to the Working Capital Facility.
EXHIBIT B
[Form of Series A Senior Secured Bonds due December 15, 2019]
CORDOVA FUNDING CORPORATION
SERIES A-[1] [2] [3] [4] [5] SENIOR SECURED BOND
DUE DECEMBER 15, 2019
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, ENCUMBERED, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
BY ITS ACQUISITION HEREOF, THE HOLDER OF THIS SECURITY AND ANY OWNER OF ANY INTEREST HEREIN REPRESENTS THAT IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER, RESELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF (X) THE ORIGINAL ISSUE DATE HEREOF AND (Y) THE LAST DATE ON WHICH CORDOVA FUNDING CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
No. ____ Private Placement Number:
Principal Amount Final Maturity Date Issue Date
---------------- ------------------- ----------
$_____________ December 15, 2019 [September 10, 1999]
[December 15, 1999]
[March 15, 2000]
[June 15, 2000]
[September 15, 2000]
|
REGISTERED HOLDER:
PRINCIPAL AMOUNT:
INTEREST RATE:
CORDOVA FUNDING CORPORATION, a Delaware corporation (hereinafter called the "Funding Corporation", which term includes any successor or assign under the Trust Indenture referred to below), for value received hereby promises to pay to the Registered Holder hereof, the outstanding principal amount hereof, such payment to be made in semiannual installments on June 15 and December 15 of each year (commencing June 15, 2002) and ending on the Final Maturity Date set forth above, each such installment to be in an amount equal to the Principal Amount multiplied by the "Percentage of Principal Amount Payable" as set forth opposite the applicable payment date in the table set forth on Schedule I attached hereto (provided that the portion of the Principal Amount remaining unpaid on the Final Maturity Date, together with all interest accrued thereon, shall in any and all cases be due and payable on the Final Maturity Date), and to pay interest on the unpaid portion of the Principal Amount at the Interest Rate set forth above from the most recent Scheduled Payment Date for which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the issue date set forth above, semiannually on June 15 and December 15 in each year (commencing on the Scheduled Payment Date next succeeding the issue date set forth above) until the Principal Amount is paid in full or payment thereof is duly provided for. Any installment of principal and, to the extent permitted by applicable law, any payment of interest not punctually paid or duly provided for shall continue to bear interest at a rate equal to the interest rate set forth above. The principal and interest so payable on any Scheduled Payment Date shall, as provided in the Trust Indenture referred to below, be paid to the Person in whose name this Security (or one or more predecessor securities) is registered in the Securities Register at the close of business on the Record Date for such payment of principal and interest, which shall be June 1 and December 1, respectively. Any such principal and interest that is payable, but is not so punctually paid or duly provided for, shall forthwith cease to be payable to the Person in whose name this Security (or one or more predecessor securities) was registered in the Securities Register at the close of business on such Record Date, and may be paid to the Person in whose name this Security is registered at the close of business on a subsequent Record Date for the payment of such defaulted principal and interest, to be fixed by the Trustee, notice of which
shall be given to the Holder hereof not less than fifteen (15) days prior to such subsequent Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Trust Indenture referred to below. All payments in respect of this Security shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of debts.
Interest payments for this Security will be computed and paid on the basis of a 360-day year consisting of twelve 30-day months.
This Security is one of an authorized Series of Securities of the Funding Corporation known as its Series A-1 Senior Secured Bonds due December 15, 2019 (the "Securities"). The Securities are issued under the Trust Indenture dated as of September 10, 1999 (the "Trust Indenture") between the Funding Corporation and Chase Manhattan Bank and Trust Company, National Association, a national banking association organized under the laws of the United States, as trustee (in such capacity, together with its successors in such capacity, the "Trustee"), as contemplated by the Bond Purchase Agreement, dated as of September 10, 1999 (the "Bond Purchase Agreement") among the Funding Corporation, Cordova Energy Company LLC ("Cordova Energy") and the institutional investors named on Schedule A thereto. All capitalized terms used herein, unless otherwise defined herein, shall have the meanings ascribed to them in the Trust Indenture.
All Securities are secured equally and ratably with one another. Reference is hereby made to the Trust Indenture for a description of the nature and extent of the Securities and the respective rights of the Holders of the Securities and of the Trustee and the Funding Corporation in respect of the Securities and the terms upon which the Securities are made and are to be authenticated and delivered. Subject to the terms of the Trust Indenture, the Holder of this Security is entitled to the benefits of the Bond Purchase Agreement and the Trust Indenture and may enforce the agreements of the Funding Corporation contained therein and exercise the remedies provided for thereby or otherwise available in respect thereof.
The principal of, and interest on, this Security are payable from, and secured by, assets subject to the Lien on the Funding Corporation Collateral, in accordance with the terms of the Trust Indenture and the Financing Documents.
The obligations of the Company to pay the principal of, premium, if any, and interest on the Securities when due are unconditionally guaranteed by Cordova Energy pursuant to the Cordova Energy Guarantee. The Cordova Energy Guarantee will be secured by the Lien on the Cordova Energy Collateral, in accordance with the terms of the Trust Indenture and the Financing Documents.
The Securities are subject to a Collateral Agency and Intercreditor Agreement dated as of September 10, 1999.
The Trust Indenture permits, with certain exceptions, as therein provided, the amendment thereof and the modification of the rights and obligations of the Funding Corporation and the rights of the Holders of the Securities under the Trust Indenture at any time by the Funding Corporation with the consent of the Holders of more than 50% in aggregate principal amount of the Securities at the time Outstanding affected by such amendment or modification. The Trust Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Funding Corporation with certain provisions of the Trust Indenture and certain past defaults under the Trust Indenture and their consequences. Any such consent or waiver or direction by the Holder of this Security shall be conclusive and binding upon the Holder and upon all future Holders of this Security and of any security issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.
This Security is subject to optional redemption by the Funding Corporation in accordance with Section 3.1(a) of the Trust Indenture at a redemption price equal to all or a portion of the principal amount thereof, all interest accrued on such principal amount to but not including the Redemption Date and a make-whole premium (the "Standard Make-Whole Premium"). The Standard Make-Whole Premium is an amount equal to the Discounted Present Value calculated for any Security subject to such redemption less the unpaid principal amount of such Security; provided that the Standard Make-Whole Premium shall not be less than zero. For purposes of determining the Standard Make-Whole Premium, the "Discounted Present Value" of any Security subject to such redemption shall be equal to the discounted present value of all principal and interest payments scheduled to become due in respect of such Security after the date of such redemption, calculated using a discount rate equal to the sum of (1) the yield to maturity on the United States treasury security having an average life equal to the remaining average life of such Security and trading in the secondary market at the price closest to par and (2) 50 basis points; provided, however, that if there is no United States treasury security having an average life equal to the remaining average life of such Security, such discount rate shall be calculated using a yield to maturity interpolated or extrapolated on a straight-line basis (rounding to the nearest month, if necessary) from the yields to maturity for two United States treasury securities having average lives most closely corresponding to the remaining average life of such Security and trading in the secondary market at the price closest to par.
This Security is subject to optional redemption by the Funding Corporation in accordance with Section 3.1(b) of the Trust Indenture at a redemption price equal to 100% of the outstanding principal amount of the portion of this Security being redeemed plus a make-whole premium (the "Special Make-Whole Premium"). The Special Make-Whole Premium will be an amount equal to
the Discounted Present Value calculated for the portion of this Security subject to such redemption less the unpaid principal amount of such portion of this Security; provided that the Special Make-Whole Premium shall not be less than zero. For purposes of determining the Special Make-Whole Premium, the "Discounted Present Value" of the portion of this Security subject to such redemption shall be equal to the discounted present value of all principal and interest payments scheduled to become due in respect of such portion of this Security after the date of such redemption, calculated using a discount rate equal to the sum of (1) the yield to maturity on the United States treasury security having an average life equal to the remaining average life of such portion of this Security and trading in the secondary market at the price closest to par and (2) 50 basis points; provided, however, that if there is no United States treasury security having an average life equal to the remaining average life of such portion of this Security, such discount rate shall be calculated using a yield to maturity interpolated or extrapolated on a straight-line basis (rounding to the nearest month, if necessary) from the yields to maturity for two United States treasury securities having average lives most closely corresponding to the remaining average life of such portion of this Security and trading in the secondary market at the price closest to par.
This Security is subject to optional redemption by the Funding Corporation at a redemption price equal to all or a portion of the principal amount thereof and all interest accrued on such principal amount to but not including the Redemption Date in accordance with Section 3.1(c) of the Trust Indenture. This Security is, under certain conditions, subject to mandatory redemption and redemption at the option of the Holders as set forth in Section 3.3 of the Trust Indenture.
Any payment of interest on any Security, the stated maturity of which payment is on or prior to any Redemption Date, shall be payable to the Holder of such Security, or one or more predecessor securities, registered as such at the close of business on the related Record Date or subsequent Record Date.
Notice of any redemption of Securities will be given at least 30 days before the Redemption Date to each Holder at its registered address.
Securities (or portions thereof as aforesaid) for the redemption of which provision is made in accordance with the Trust Indenture shall cease to bear interest from and after the Redemption Date.
The unpaid portion of principal of this Security, together with all interest accrued thereon and all other amounts due hereunder, shall be due and payable, as provided in the Trust Indenture, upon the occurrence of certain Events of Default in full, or in such lesser amount in the case of an Event of Default relating to the bankruptcy, insolvency, receivership or reorganization of any Guarantor which has resulted in an automatic acceleration of such Guarantor's Project Note.
The Securities are issuable in registered form in denominations of [$100,000 or any amount in excess thereof] [$100,000 or any integral multiple of $1,000 in excess thereof].
No service charge will be made to any Holder of Securities for any transfer or exchange, but the Registrar and/or the Funding Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The person in whose name this Security is registered shall be deemed to be the owner and holder hereof for the purpose of receiving payment as herein provided and for all other purposes whether or not this Security be overdue regardless of any notice to anyone to the contrary.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
For the avoidance of doubt, in the event of any conflict between any provision of the Trust Indenture and this Security, the Trust Indenture shall govern and supercede.
Unless the certificate of authentication hereon has been executed by the Trustee by manual or facsimile signature, this Security shall not be entitled to any benefit under the Trust Indenture, or be valid or obligatory for any purpose.
Recourse under this Security is limited as set forth in
Section 12.12 of the Trust Indenture.
IN WITNESS WHEREOF, the Funding Corporation has caused this instrument to be duly executed.
CORDOVA FUNDING CORPORATION
By: _____________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
Dated:
This Security is one of the Series A Senior Secured Bonds due December 15, 2019 of Cordova Funding Corporation referred to in the within-mentioned Indenture.
By: ___________________________
Authorized Signatory
ASSIGNMENT FORM
(To be executed by the Registered Holder
if such Holder desires to transfer this Security)
To: Chase Manhattan Bank and Trust Company, National Association
101 California Street, Suite 2725
San Francisco, CA 94111
Attention: Rose Maravilla
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto
Social Security Number of Other
Identifying Number of Assignee
(Please print or typewrite name and address, including zip code of Assignee)
the within Security and all rights thereunder, hereby irrevocably constituting and appointing ________________________________________ attorney to transfer said Security on the books of the Funding Corporation with full power of substitution in the premises.
Attached to this Assignment Form is a certification of the Assignee providing the certifications for transfer required pursuant to the terms of the Indenture.
Dated:____________________
Signature
Signature Guaranteed
NOTICE: The signature to this assignment must correspond with the name
as written upon the first page of the within instrument in
every particular, without alteration or enlargement or any
change whatsoever, and such signature must be guaranteed by an
eligible guarantor institution (banks, stock brokers, savings
and loan associations and credit unions with membership in an
approved signature guarantee medallion program) pursuant to
United States Securities and Exchange Commission Rule 17
AD-15.
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Series A Senior Secured Bonds due December 15, 2019
The following table sets forth the date of each semiannual installment of principal to be paid on this Security and the applicable percentage of the original principal amount payable on each such date:
Scheduled Payment Date Percentage of Principal Amount Payable
June 15, 2001 0.0000%
December 15, 2001 0.0000%
June 15, 2002 0.2750%
December 15, 2002 0.2750%
June 15, 2003 2.0000%
December 15, 2003 2.0000%
June 15, 2004 1.8000%
December 15, 2004 1.8000%
June 15, 2005 1.7500%
December 15, 2005 1.7500%
June 15, 2006 1.0000%
December 15, 2006 1.0000%
June 15, 2007 0.9250%
December 15, 2007 0.9250%
June 15, 2008 1.0500%
December 15, 2008 1.0500%
June 15, 2009 1.4250%
December 15, 2009 1.4250%
June 15, 2010 2.0000%
December 15, 2010 2.0000%
June 15, 2011 2.0500%
December 15, 2011 2.0500%
June 15, 2012 2.2500%
December 15, 2012 2.2500%
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June 15, 2013 2.5500% December 15, 2013 2.5500% June 15, 2014 3.0000% December 15, 2014 3.0000% June 15, 2015 2.9000% December 15, 2015 2.9000% June 15, 2016 3.5000% December 15, 2016 3.5000% June 15, 2017 3.7000% December 15, 2017 3.7000% June 15, 2018 4.4503% December 15, 2018 4.4503% June 15, 2019 5.1525% December 15, 2019 21.5969% |
EXHIBIT C
Form of Certificate
Chase Manhattan Bank and Trust Company, National Association
101 California Street, #2725
San Francisco, CA 94111
Cordova Funding Corporation
666 Grand Avenue
29th Floor
P.O. Box 657 Des Moines, IA 50303-0657
Re: Cordova Funding Corporation (the "Company") Senior Secured Bonds (the "Securities")
Dear Sirs:
This letter relates to U.S. $_________ principal amount of Securities represented by a Security (the "Legended Security") which bears a legend outlining restrictions upon transfer of such Legended Security. Pursuant to Section 2.5(a) of the Trust Indenture (the "Indenture") dated as of September 10, 1999 relating to the Securities, we hereby certify that we are (or we will hold such securities on behalf of ) a person outside the United States to whom the Securities could be transferred in accordance with Rule 904 of Regulation S promulgated under the Securities Act of 1933, as amended. Accordingly, you are hereby requested to exchange the Legended Security for an unlegended Security representing an identical principal amount of Securities, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Securityholder]
EXHIBIT D
[Form of Transferor Certificate]
TRANSFER CERTIFICATE
SERIES A SENIOR SECURED BONDS DUE DECEMBER 15, 2019
This is to certify that as of the date hereof with respect to $_____________ principal amount of the above-captioned securities presented or surrendered on the date hereof (the "Surrendered Securities") for registration of transfer or for exchange where the securities issuable upon such exchange are to be registered in a name other than that of the undersigned Holder (each such transaction being a "transfer"), the undersigned Holder (as defined in the Indenture) of the Surrendered Securities represents and certifies for the benefit of Cordova Funding Corporation and Chase Manhattan Bank and Trust Company, National Association, as Trustee, that the transfer of Surrendered Securities associated with such transfer complies with the restrictive legend set forth on the face of the Surrendered Securities for the reason checked below:
[ ] The Surrendered Securities are being transferred to a person whom we reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act of 1933) (a "QIB") that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A under the Securities Act and in accordance with any applicable blue sky or securities laws of any State of the United States; or
[ ] The Surrendered Securities are being transferred to an institution
that is an "accredited investor" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) under Regulation D of the Securities Act
that is acquiring the Surrendered Securities for investment purposes
and not for distribution;* or
[ ] The transfer of the Surrendered Securities complies with Rule 144 or Regulation S under the Securities Act;** or
**These transfers may require an opinion of counsel.
[ ] The transfer of the Surrendered Securities complies with another applicable exemption from the registration requirements of the Securities Act.2
Dated: ___________, ____
[To be dated the date of presentation or surrendered]
EXHIBIT E
[Form of Institutional Accredited
Investor Transferee Compliance Letter]
Cordova Funding Corporation
666 Grand Avenue, 29th Floor
P.O. Box 657 Des Moines, Iowa 50303-0657 Attention: Chief Financial Officer
Chase Manhattan Bank and Trust Company,
National Association
101 California Street, #2725
San Francisco, California 94111
Attention: Corporate Trust Department
Dear Ladies and Gentlemen:
In connection with our proposed purchase of $ __________ aggregate principal amount of Series A Senior Secured Bonds due December 15, 2019 (the "Securities") of Cordova Funding Corporation, a Delaware Corporation (the "Funding Corporation") we confirm that:
1. We understand that the Securities have not been registered under the Securities Act of 1933 (the "Securities Act") and may not be sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting hereafter stated, that such Securities may be resold, pledged or transferred only (i) to the Funding Corporation or an Affiliate of the Funding Corporation, (ii) pursuant to and in accordance with Rule 144A under the Securities Act ("Rule 144A"), to a person whom we reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A) (a "QIB") that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A (as indicated by the box checked by the transferor on the Transferor Certificate, a form of which is attached as Exhibit C to the Indenture relating to the Securities, dated as of September 10, 1999), (iii) pursuant to an exemption from registration under the Securities Act provided by Rule 144, (iv) in compliance with Regulation S (if applicable) under the Securities Act, (v) to an institution that is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act (as indicated by the box checked by the transferor on the Transferor Certificate, a form of which is attached as Exhibit C to the Indenture relating to the Securities, dated as of September 10, 1999) that is acquiring the
Securities for investment purposes and not for distribution and an Institutional Accredited Investor Transferee Compliance Letter in the form hereof is delivered to the Funding Corporation and to the Trustee under the Indenture relating to the Securities by such accredited investor, or (vi) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States, and we will notify any purchaser of the Securities from us of the above resale restrictions, if then applicable. We further understand that in connection with any transfer of the Securities by us that Funding Corporation and the Trustee may request, and if so requested we will furnish, such certificates and other information as they may reasonably require to confirm that any such transfer complies with the foregoing restrictions.
2. We are an institutional investor and are an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and we have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Securities, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
3. We understand that the Securities will be issued solely in physical certificated form (and not in the form of interests in securities deposited with The Depository Trust Company) and the minimum principal amount of Securities that may be purchased by an institutional accredited investor is $100,000.
4. We are acquiring the Securities purchased by us for our own account or for one or more accounts as to each of which we exercise sole investment discretion.
5. We acknowledge that we have had access to such financial and other information, and have been afforded the opportunity to ask such questions of representatives of the Funding Corporation and receive answers thereto, as we deem necessary in connection with our decision to purchase the Securities.
6. We understand that, on any proposed resale of any Securities, we will be required to furnish to the Funding Corporation and Chase Manhattan Bank and Trust Company, National Association, as Trustee, such certifications, legal opinions and other information as they may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Securities purchased by us will bear a legend to the foregoing effect.
7. You are entitled to rely upon this letter and you are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
By: ___________________________
Name:
Title:
Date: _______________ Address:
EXHIBIT F
SUBORDINATION PROVISIONS
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Collateral Agency and Intercreditor Agreement, dated as of September 10, 1999 (as amended, supplemented or otherwise modified from time to time, the "Intercreditor Agreement"), among Chase Manhattan Bank and Trust Company, National Association, as trustee (the "Trustee") under a certain Trust Indenture dated as of September 10, 1999 (as amended, supplemented or otherwise modified from time to time, the "Indenture"), the other Secured Parties from time to time party thereto, Cordova Funding Corporation, Chase Manhattan Bank and Trust Company, National Association, as securities intermediary under a certain Deposit and Disbursement Agreement dated as of September 10, 1999 (as amended, supplemented or otherwise modified from time to time, the "Depositary Agreement"), and Chase Manhattan Bank and Trust company, National Association, as collateral agent under the Intercreditor Agreement.
[NAME OF SUBORDINATED LENDER] (together with its successors and assigns, the "Subordinated Lender") hereby agrees for the benefit of the Secured Parties that all [DESCRIBE SUBORDINATED LIABILITIES] (the "Subordinated Obligations") are and shall be junior and subordinate, to the extent and in the manner set forth hereinafter, in right of payment to the prior indefeasible payment or satisfaction in full of all Financing Liabilities. In furtherance thereof, each of the Secured Parties, the Collateral Agent and the Subordinated Lender further agrees that:
(i) (a) The Subordinated Lender shall not ask, demand, sue for, take or receive from the Funding Corporation or any Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner (including, without limitation, from or by way of the Collateral or any guaranty of payment or performance), payment of all or any of the Subordinated Obligations unless and until the Financing Commitments shall have been terminated and the Financing Liabilities shall have been paid or otherwise satisfied in full and except to the extent of distributions from the Distribution Account under the Depositary Agreement. For the purposes of these provisions, the Financing Liabilities shall not be deemed to have been paid or satisfied in full until those Financing Liabilities shall have been indefeasibly so paid to the Secured Parties or so otherwise satisfied (after the passage of any relevant preference periods).
(ii) Upon any distribution of all or any of the assets of the Funding Corporation or any Guarantor to creditors of Funding Corporation or any Guarantor upon the dissolution, winding up, liquidation, arrangement, reorganization or composition of the Funding Corporation or any Guarantor, whether in any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Funding Corporation or any Guarantor or otherwise, any payment or distribution of any kind (whether in cash, property or securities) which otherwise would be payable or deliverable upon or with respect to the Subordinated Obligations shall be paid or delivered directly to the Collateral Agent for application (in the case of cash) to, or as collateral (in the case of non-cash property or securities) for, the payment or prepayment of the Financing Liabilities until the Financing Liabilities have been paid or otherwise satisfied in full.
(iii) Each of the Secured Parties may demand specific performance of these terms of subordination, whether or not the Funding Corporation or any Guarantor shall have complied with any of the provisions hereof applicable to them at any time when the Subordinated Lender shall have failed to comply with any of such provisions applicable to it. The Subordinated Lender hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance.
(iv) So long as there are any Financing Commitments or any of the Financing Liabilities shall remain unpaid or otherwise unsatisfied, the Subordinated Lender shall not commence or join with any creditor other than the Collateral Agent in commencing any proceeding referred to in subsection (ii) above for the payment of any amounts which otherwise would be payable or deliverable upon or with respect to the Subordinated Obligations.
(v) Subject to the termination of the Financing Commitments and the indefeasible payment or satisfaction in full of all of the Financing Liabilities, the Subordinated Lender shall be subrogated to the rights of the Secured Parties to receive payments or distributions of assets of the Funding Corporation or any Guarantor made on the Financing Liabilities until the Subordinated Obligations have been satisfied in full.
The foregoing provisions regarding subordination are for the benefit of the Secured Parties and shall be enforceable by them directly against the Subordinated Lender, and no Secured Party shall be prejudiced in its right to enforce subordination of any of the Subordinated Obligations by any act or failure to act by either the Funding Corporation or any Guarantor or anyone in custody of any of their respective assets or property. Notwithstanding anything to the contrary contained in the foregoing provisions, the Subordinated Lender may receive distributions in respect of the Subordinated Obligations from the Funding Corporation or any Guarantor to the extent that such distributions are permitted pursuant to Section 3.6 of the Depositary Agreement.
(b) So long as any Secured Obligations remain outstanding, the following provisions shall apply:
(i) If a Trigger Event shall have occurred and be continuing, the Collateral Agent, on behalf of the Secured Parties, shall be permitted and is hereby authorized to take any and all actions to exercise any and all rights, remedies and options which it may have under the Security Documents or the Intercreditor Agreement.
(ii) Until the Debt Termination Date, the Subordinated Lender
shall not, without the prior written consent of the Secured Parties,
(a) exercise any rights or enforce any remedies or assert any claim
with respect to the Collateral, (b) seek to foreclose any Lien on, or
sell, the Collateral, or (c) take any action, directly or indirectly,
or institute any proceedings, directly or indirectly, with respect to
any of the foregoing.
(iii) The Subordinated Lender hereby waives: (A) notice of the existence, creation or non-payment of all or any of the Financing Liabilities and (B) to the fullest extent permitted by law, any right it may have to require the Collateral Agent to marshal assets.
(c) Subject to the terms of the Intercreditor Agreement, the Secured Parties may, at any time and from time to time, without any consent of or notice to the Subordinated Lender and without impairing or releasing the obligations of the Subordinated Lender: (i) amend in any manner any agreement under which any of the Financing Liabilities is outstanding in accordance with the terms thereof; (ii) sell, exchange, release, not perfect and otherwise deal with any Collateral or other property at any time pledged, assigned or mortgaged to secure the Financing Liabilities
in accordance with the Security Documents; (iii) release anyone liable in any manner under or in respect of the Financing Liabilities; (iv) exercise or refrain from exercising any rights against the Funding Corporation or any Guarantor and others; and (v) apply any sums from time to time received to payment or satisfaction of the Financing Liabilities.
EXHIBIT 10.72
CE ELECTRIC UK FUNDING COMPANY
and
The Bank of New York, as Trustee,
Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent
and
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
INDENTURE
Dated as of December 15, 1997
Debt Securities
TABLE OF CONTENTS 1
RECITALS OF THE COMPANY
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................1
Act..................................................................2
Additional Amounts...................................................2
Affiliate............................................................2
Applicable Procedures................................................3
Auditors.............................................................3
Authenticating Agent.................................................3
Bearer Security......................................................3
Board of Directors...................................................3
Board Resolution.....................................................3
Book-Entry Depositary................................................3
Book-Entry Interest..................................................4
Business Day.........................................................4
Capital and Reserves.................................................4
Capitalized Lease Obligations........................................5
Cedel Bank...........................................................5
Commission...........................................................5
Companies Act........................................................6
Company..............................................................6
Company Request......................................................6
Consolidated Current Liabilities.....................................6
Consolidated Debt....................................................6
Consolidated EBITDA..................................................6
Consolidated Interest Expense........................................7
Consolidated Net Operating Income....................................8
Consolidated Net Tangible Assets.....................................8
------------------------
1 NOTE: This table of contents shall not, for any purpose, be deemed to be a
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part of the Indenture
Corporate Trust Office...............................................8
Covenant Defeasance..................................................8
Currency or Interest Rate Agreement..................................9
DCR..................................................................9
Default..............................................................9
Defaulted Interest...................................................9
Defeasance...........................................................9
Deposit Agreement....................................................9
Director.............................................................9
Discharged...........................................................9
Distribution........................................................10
Dollar" or "$.......................................................10
DTC.................................................................10
Electricity Act ....................................................10
Euroclear Operator..................................................10
Event of Default....................................................10
Exchange Act........................................................10
Excluded Subsidiary.................................................10
Expiration Date.....................................................11
Global Security.....................................................11
Group...............................................................11
Group's Distribution Business.......................................11
Holder..............................................................12
Holding Period......................................................12
Incur...............................................................12
Indebtedness........................................................12
Indebtedness For Borrowed Money.....................................13
Indenture...........................................................13
Indirect Participant................................................13
Initial Principal Amount............................................13
interest............................................................13
Interest Coverage Ratio.............................................13
Interest Payment Date...............................................14
Latest Consolidated Balance Sheet...................................14
Letter of Representations...........................................14
Leverage Ratio......................................................14
Lien................................................................14
Maturity............................................................14
Measurement Date....................................................15
Moody's.............................................................15
Notice of Default...................................................15
Officers' Certificate...............................................15
Opinion of Counsel..................................................15
Optional Definitive Security Request................................15
Original Issue Discount Security....................................15
Outstanding.........................................................15
Participant.........................................................16
Paying Agent........................................................17
Permanent Global Security...........................................17
Person..............................................................17
PES Subsidiary......................................................17
Place of Payment....................................................18
Predecessor Security................................................18
Principal Amount....................................................18
Principal Paying Agent..............................................18
ii
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Project Finance Indebtedness........................................18
QIB.................................................................19
Rated Securities....................................................20
Rating Agency.......................................................20
Redemption Date.....................................................20
Redemption Price....................................................20
Registered Security.................................................20
Regular Record Date.................................................20
Regulation S........................................................20
Regulation S Global Security........................................21
Regulation S Security...............................................21
Relevant Date.......................................................21
Responsible Officer.................................................21
Restricted Period...................................................21
Restricted Securities...............................................21
Rule 144............................................................21
Rule 144A...........................................................21
Rule 144A Global Security...........................................21
Rule 144A Information...............................................22
Rule 144A Security..................................................22
S&P.................................................................22
Securities..........................................................22
Securities Act......................................................22
Security Register...................................................22
Significant Subsidiary..............................................22
Special Record Date.................................................22
Stated Maturity.....................................................22
Subsidiary..........................................................23
Total Capital.......................................................23
Transfer Agent......................................................23
Trustee.............................................................23
Trust Indenture Act.................................................23
United Kingdom......................................................23
United Kingdom Taxes................................................23
United States" and "US".............................................23
US Government Obligation............................................24
Unrestricted Security"..............................................24
SECTION 102. Certificates and Opinions.....................................24
SECTION 103. Form of Documents Delivered to Trustee........................25
SECTION 104. Acts of Holders; Record Dates.................................26
SECTION 105. Notices, Etc., to Trustee and Company.........................30
SECTION 106. Notice to Holder; Waiver......................................31
SECTION 107. Effect of Headings and Table of Contents......................33
SECTION 108. Successors and Assigns........................................33
SECTION 109. Separability Clause...........................................33
iii
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SECTION 110. Benefits of Indenture.........................................33
SECTION 111. Governing Law.................................................33
SECTION 112. Legal Holidays................................................33
ARTICLE II
SECURITY FORMS
SECTION 201 Forms Generally...............................................34
SECTION 202. Form of Face of Security......................................36
SECTION 203. Form of Reverse of Security...................................45
SECTION 204. Form of Trustee's Certificate of Authentication...............58
SECTION 205. Form of Trustee's Certificate of Authentication
by an Authenticating Agent....................................58
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..........................60
SECTION 302. Denominations.................................................65
SECTION 303. Execution, Authentication, Delivery and Dating................65
SECTION 304. Transfer Agent and Paying Agent...............................67
SECTION 305. Temporary Securities..........................................68
SECTION 306. Registration, Registration of Transfer and Exchange...........69
SECTION 307. Bearer Securities.............................................71
SECTION 308. Restricted Securities.........................................72
(a) Transfer and Exchange.....................................72
(b) Removal of Transfer Restrictions..........................72
SECTION 309. Global Securities.............................................73
(a) Form and Legend...........................................74
(b) Transfer and Exchange.....................................74
(c) Beneficial Interests. ....................................76
(d) Special Provisions Regarding Transfer of Beneficial
Interests in a Regulation S Global Security...............76
(e) Special Provisions Regarding Transfer of Beneficial
Interests in a Rule 144A Global Security.................78
(f) Deposit Agreement........................................81
SECTION 310. Mutilated, Destroyed, Lost and Stolen Securities..............81
SECTION 311. Payment of Interest; Interest Rights Reserved.................82
SECTION 312. Persons Deemed Owners.........................................85
SECTION 313. Cancellation..................................................86
SECTION 314. Computation of Interest.......................................86
SECTION 315. Certification Form............................................87
SECTION 316. CUSIP and ISIN Numbers. .....................................100
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ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401 Satisfaction and Discharge of Indenture......................101
SECTION 402. Defeasance, Discharge and Covenant Defeasance................103
(a) Defeasance and Discharge of a Series of Securities.......103
(b) Covenant Defeasance......................................104
(c) Conditions to Defeasance or Covenant Defeasance..........104
SECTION 403. Application of Trust Money...................................107
SECTION 404. Reinstatement...............................................108
ARTICLE V
REMEDIES
SECTION 501 Events of Default............................................109
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........111
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................113
SECTION 504. Trustee May File Proofs of Claim.............................114
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities................................................115
SECTION 506. Application of Money Collected...............................115
SECTION 507. Limitation on Suits..........................................117
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest..............................118
SECTION 509. Restoration of Rights and Remedies...........................118
SECTION 510. Rights and Remedies Cumulative...............................119
SECTION 511. Delay or Omission Not Waiver.................................119
SECTION 512. Control by Holders...........................................119
SECTION 513. Waiver of Past Defaults......................................120
SECTION 514. Undertaking for Costs........................................120
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..........................121
SECTION 602. Notice of Defaults...........................................123
SECTION 603. Certain Rights of Trustee....................................123
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......125
SECTION 605. May Hold Securities..............................125
SECTION 606. Money Held in Trust..........................................126
SECTION 607. Compensation and Reimbursement...............................126
SECTION 608. Disqualification; Conflicting Interests......................127
SECTION 609. Corporate Trustee Required; Eligibility......................127
SECTION 610. Resignation and Removal; Appointment of Successor Trustee....128
SECTION 611. Acceptance of Appointment by Successor.......................130
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SECTION 612. Merger, Conversion, Consolidation or Succession
to Business..................................................132
SECTION 613. Preferential Collecting of Claims Against Company............132
SECTION 614. Authenticating Agents........................................138
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders...................................................141
SECTION 702. Preservation of Information; Communications
to Holders...................................................143
SECTION 703. Reports by Trustee...........................................143
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.........145
SECTION 802. Successor Corporation to be Substituted......................146
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indenture without Consent of Holders............147
SECTION 902. Supplemental Indentures with Consent of Holders..............149
SECTION 903. Execution of Supplemental Indentures.........................151
SECTION 904. Effect of Supplemental Indentures............................151
SECTION 905. Conformity with Trust Indenture Act.........................152
SECTION 906. Reference in Securities to Supplemental Indentures............152
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest..........152
SECTION 1002. Maintenance of Office or Agency..............................153
SECTION 1003. Money for Securities Payments to Be Held in Trust............154
SECTION 1004. Limitation on Liens..........................................156
SECTION 1005. Limitation on Distributions..................................161
SECTION 1006. Statement by Officers as to Default..........................162
SECTION 1007. Modification or Waiver of Certain Covenants..................163
SECTION 1008. Further Assurances...........................................163
SECTION 1009. Payment of Additional Amounts................................164
SECTION 1010. Copies Available to Holders..................................167
SECTION 1011. Reports by Company...........................................167
SECTION 1012. Resale of Restricted Securities by the Company...............168
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.....................................168 SECTION 1102. Election to Redeem; Notice to Trustee........................169 SECTION 1103. Selection by Trustee of Securities to Be Redeemed............169 SECTION 1104. Notice of Redemption.........................................170 SECTION 1105. Deposit of Redemption Price..................................171 SECTION 1106. Securities Payable on Redemption Date........................171 SECTION 1107. Securities Redeemed in Part..................................172 |
SECTION 1108. Optional Redemption in the Event of Change in United Kingdom Tax Treatment.................................173
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article.....................................174 SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........175 SECTION 1203. Redemption of Securities for Sinking Fund....................175 |
ARTICLE XIII
MEETTINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes of Meeting..........................................177 SECTION 1302. Place of Meetings............................................178 SECTION 1303. Voting at Meetings...........................................178 SECTION 1304. Voting Rights, Conducts and Adjournment......................179 SECTION 1305. Revocation of Consent by Holders.............................180 |
ARTICLE XIV
MISCELLANEOUS
SECTION 1401. Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process....................................180
SECTION 1402. Counterparts.................................................183
INDENTURE, dated as of December 15, 1997, among CE ELECTRIC UK FUNDING COMPANY, an unlimited company duly incorporated and existing under the laws of England and Wales (the "Company"), having its principal office at c/o Northern Electric plc, Carliol House, Market Street, Newcastle upon Tyne, NE1 6NE, THE BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"), Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent and BANQUE INTERNATIONALE A LUXEMBOURG S.A., a societe anonyme organized and existing under the laws of the Grand Duchy of Luxembourg, as Paying Agent and Transfer Agent.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of certain of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the respective meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein to the extent applicable;
(3) reference to principal, interest, discount or premium in respect of the Securities shall be deemed also to refer to any Additional Amounts which may be payable as set forth in this Indenture or in the Securities;
(4) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United Kingdom and, except as otherwise herein expressly provided, the term "generally accepted accounting principles", with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United Kingdom at the date of such computation; and
(5) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
"Act," when used with respect to any Holder, has the meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section 1009.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling", and "controlled" have meanings correlative to the foregoing.
"Applicable Procedures" means the rules and procedures of DTC and, as applicable, Euroclear and Cedel, in each case pertaining to beneficial interests in the Book-Entry Interest with respect to a Global Security.
"Auditors" means the auditors for the time being of the Company or, in the event of their being unable or unwilling to carry out any action requested of them pursuant to the terms of the Indenture, such other firm of internationally recognized accountants as the Company may select for the purpose.
"Authenticating Agent" means any Person authorized to authenticate and deliver Securities on behalf of the Trustee pursuant to Section 614.
"Bearer Security" means any Security that is payable to bearer.
"Board of Directors" means either the board of directors of the Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution of the Company certified by a Director, by the Secretary or by other authorized designee of the Board of Directors to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
"Book-Entry Depositary" means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Book-Entry Depositary by the Company pursuant to Section 301, and, if so provided pursuant to Section 301 with respect to the Securities of a series, any successor to such Person. If at any time there is more than one such Person, "Book-Entry Depositary" shall mean, with respect to any series of Securities, the qualifying entity which has been appointed with respect to the Securities of that series.
"Book-Entry Interest" means one or more certificateless depositary interests issued by the Book-Entry Depositary to DTC (registered in the name of DTC or its nominee) representing the right to receive 100% of the principal, premium (if any), and interest with respect to a Global Security of any series of Securities, unless and until definitive Registered Notes are issued in respect of such series of Securities.
"Business Day", when used with respect to the Place of Payment of the Securities of any series, means each day which is not a Saturday, a Sunday or a day on which banking institutions in any Place of Payment for the Securities of that series are authorized or obligated by law to remain closed.
"Capital and Reserves" means the aggregate of:
(i) the amount (including any share premium) of the share capital of the Company for the time being issued and paid up or credited as paid up; and
(ii) the amounts standing to the credit of all capital and revenue reserve accounts and the consolidated profit and loss of the Group;
but adjusted to the extent that the following items have not already been added, deducted or excluded in arriving at the figures referred to in (i) or (ii) above;
(iii) by adding the outstanding amount of any subordinated debt;
(iv) by deducting the amounts standing to the debit of all capital and revenue reserve accounts and the consolidated profit and loss account of the Group;
(v) by deducting any amounts shown in respect of interests of non-Group members in Group subsidiaries;
(vi) by adding the amount of goodwill arising upon and in respect of the acquisition of the preference shares and ordinary shares of Northern Electric plc;
(vii) by deducting the amount of any distribution declared or made by the Company or any of its subsidiaries (other than to another member of the Group) out of profits included within reserves to the extent that these reserves have not already been reduced on account thereof; and
(viii) by adding the amount shown in respect of deferred taxation;
all as shown in the Latest Consolidated Balance Sheet.
"Capitalized Lease Obligations" means all lease obligations of the Company and its Subsidiaries which, under UK GAAP, are or will be required to be capitalized, in each case taken at the amount thereof accounted for as indebtedness in conformity with such principles.
"Cedel Bank" means Cedel Bank, societe anonyme, or its successors.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Companies Act" is defined to mean the UK Companies Act 1985 as amended or re-enacted from time to time and all subordinate legislation made pursuant thereto.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by any Director of the Company and by any other Director of the Company or any officer or other person duly authorized by the Board of Directors, and delivered to the Trustee.
"Consolidated Current Liabilities" is defined to mean the consolidated current liabilities of the Company and its Subsidiaries, but excluding the current portion of long term Indebtedness which would otherwise be included therein, as determined on a consolidated basis in accordance with UK GAAP.
"Consolidated Debt" is defined to mean, at any time, the sum of the aggregate outstanding principal amount of all Indebtedness for Borrowed Money (including, without limitation, the principal component of Capitalized Lease Obligations, but excluding Currency or Interest Rate Agreements and all Consolidated Current Liabilities and Project Finance Indebtedness of the Company and its Subsidiaries) less cash and cash equivalents, as determined on a consolidated basis in conformity with UK GAAP.
"Consolidated EBITDA" is defined to mean, for any period, the sum of the amounts for such period of the Company's (i) Consolidated Net Operating Income, (ii) Consolidated Interest Expense, (iii) income taxes and deferred taxes (other than income taxes and deferred taxes (either positive or negative) attributable to extraordinary and non-recurring gains or losses or sales of assets), (iv) depreciation expense, (v) amortization expense and (vi) all other non-cash items reducing Consolidated Net Operating Income, less all non-cash items increasing Consolidated Net Operating Income, all as determined on a consolidated basis in conformity with UK GAAP; provided that, to the extent that the Company has any Subsidiary that is not a wholly-owned Subsidiary, Consolidated EBITDA shall be reduced by an amount equal to the Consolidated Net Operating Income of such Subsidiary multiplied by the quotient of (A) the number of shares of outstanding common stock of such Subsidiary not owned on the last day of such period by the Company or any Subsidiary of the Company, divided by (B) the total number of shares of outstanding common stock of such Subsidiary on the last day of such period.
"Consolidated Interest Expense" is defined to mean, for any period, the aggregate amount of interest in respect of Indebtedness for Borrowed Money (including amortization of original issue discount on any Indebtedness and the interest portion of any deferred payment obligation, calculated in accordance with the effective interest method of accounting; and all commissions, discounts and other fees and charges owed with respect to bankers' acceptance financing) and the net costs associated with Interest Rate Agreements and all but the principal component of rentals in respect of Capitalized Lease Obligations, paid, accrued or scheduled to be paid or to be accrued by the Company and each of its Subsidiaries during such period, excluding, however, any amount of such interest of any Subsidiary of the Company if the net operating income (or loss) of such Subsidiary is excluded from the calculation of Consolidated Net Operating Income for such Subsidiary pursuant to clause (ii) of the definition thereof (but only in the same proportion as the net operating income (or loss) of such Subsidiary is excluded), less consolidated interest income, all as determined on a consolidated basis in conformity with UK GAAP; provided that, to the extent that the Company has any Subsidiary that is not a wholly-owned Subsidiary, Consolidated Interest Expense shall be reduced by an amount equal to such interest expense of such Subsidiary multiplied by the quotient of (A) the number of shares of outstanding common stock of such Subsidiary not owned on the last day of such period by the Company or any Subsidiary of the Company divided by (B) the total number of shares of outstanding common stock of such Subsidiary on the last day of such period.
"Consolidated Net Operating Income" is defined to mean, for any period, the aggregate of the net operating income (or loss) of the Company and its Subsidiaries for such period, as determined on a consolidated basis in conformity with UK GAAP; provided that the following items shall be excluded any calculation of Consolidated Net Operating Income (without duplication): (i) the net operating income (or loss) of any Person (other than a Subsidiary) in which any other person has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to the Company or another Subsidiary of the Company during such period; (ii) the net operating income (or loss) of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such net operating income is not at the time permitted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation or license; and (iii) all extraordinary gains and extraordinary losses.
"Consolidated Net Tangible Assets" shall mean the total of all assets (including revaluations thereof as a result of commercial appraisals, price level restatement or otherwise) appearing on a consolidated balance sheet of the Company, net of applicable reserves and deductions, but excluding goodwill, trade names, trademarks, patents, unamortized debt discount and all other like intangible assets (which term shall not be construed to include such revaluations), less the aggregate of the Consolidated Current Liabilities of the Company appearing on such balance sheet.
"Corporate Trust Office" means the principal office of the Trustee in The City of New York, at which at any particular time its corporate trust business shall be administered, which at the date hereof is 101 Barclay Street, Floor 21 West, New York, New York, 10286, Attention: Corporate Trust Administration.
"corporation" includes corporations, associations, companies and business trusts.
"Covenant Defeasance" has the meaning specified in Section 402(b).
"Currency or Interest Rate Agreement" is defined to mean an agreement or transaction involving any currency or interest rate swap, cap or collar arrangement, forward exchange transaction, option, warrant, forward rate agreement, futures contract or other derivative instrument of any kind for the hedging or management of foreign exchange or interest rate risks.
"DCR" means Duff & Phelps Credit Rating Co.
"Default" means, for purposes of Section 601 hereof, an "Event of Default" as specified in Section 501 hereof. For purposes of Section 310(b) of the Trust Indenture Act (if applicable to the Securities of any series), "default" shall mean an "Event of Default" as specified in Section 501 hereof, but exclusive of any period of grace or requirement of notice.
"Defaulted Interest" has the meaning specified in Section 311.
"Defeasance" has the meaning specified in Section 402(a).
"Deposit Agreement" means the deposit agreement between the Company and the Book-Entry Depositary.
"Director" means any member of the Board of Directors.
"Discharged" means, with respect to the Securities of any series, the discharge of the entire indebtedness represented by, and obligations of the Company under, the Securities of such series and the satisfaction of all the obligations of the Company under this Indenture relating to the Securities of such series, except (A) the rights of Holders of the Securities of such series to receive, from the trust fund described in Section 403 hereof, payment of the principal of and interest and premium, if any, on the Securities of such series when such payments are due, (B) the Company's obligations with respect to the Securities of such series with respect to registration, transfer, exchange and maintenance of a Place of Payment and (C) the rights, powers, trusts, duties, protections and immunities of the Trustee under this Indenture.
"Distribution" means any dividend, distribution or payment (including by way of redemption, repurchase, retirement, return or repayment) in respect of shares of capital stock of the Company.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debt.
"DTC" means The Depository Trust Company or its successors, or any successor clearing agency which is registered as such under the Exchange Act and approved by the Company.
"Electricity Act" means the Electricity Act of 1989, as amended or re-enacted from time to time and all subordinate legislation made pursuant thereto.
"Euroclear Operator" means Morgan Guaranty Trust Company of New York, Brussels office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the US Securities Exchange Act of 1934, as amended.
"Excluded Subsidiary" means any Subsidiary of the Company (other than a PES Subsidiary):
(i) in respect of which neither the Company nor any Subsidiary of the Company (other than another Excluded Subsidiary) has undertaken any legal obligation to give any guarantee for the benefit of the holders of any Indebtedness for Borrowed Money (other than to another member of the Group) other than in respect of any statutory obligation and the Subsidiaries of which are all Excluded Subsidiaries; and
(ii) which has been designated as such by the Company by written notice to the Trustee; provided that the Company may give written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary whereupon it shall cease to be an Excluded Subsidiary.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Registered Security or a Bearer Security which evidences all or part of a series of Securities and which is issued to the Book-Entry Depositary for such series or its nominee. Global Securities may be more specifically referred to herein as "Global Registered Securities" or "Global Bearer Securities, " as the case may be.
"Group" means the Company and its subsidiaries and "member of the Group" shall be construed accordingly.
"Group's Distribution Business" means the business carried on by Northern Electric plc or any other member of the Group from time to time pursuant to the terms of the PES Licence comprising, or ancillary to, the distribution (whether for its own account or that of third parties) of electricity through the Group's Distribution System (including any business in providing connections to the Group's Distribution System) but shall not include any activities exclusively forming part of the Generation Business, Second-Tier Supply Business or Supply Business (as such terms are defined in the PES Licence) carried on or to be carried on by any member of the Group.
"Holder" means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Global Bearer Security, the bearer thereof, including the Book-Entry Depositary, acting in accordance with the Deposit Agreement, as sole holder thereof.
"Holding Period" has the meaning specified in Section 201.
"Incur" means, with respect to any Indebtedness, to incur, create, issue, assume or guarantee such Indebtedness.
"Indebtedness" means, with respect to the Company or any of any its Subsidiaries at any date of determination (without duplication), (i) all Indebtedness for Borrowed Money, (ii) all obligations in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto), (iii) all obligations to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except trade payables, (iv) all Capitalized Lease Obligations, (v) all indebtedness of other persons secured by a mortgage, charge, lien, pledge or other security interest on any asset of the Company or any of its Subsidiaries, whether or not such indebtedness is assumed; provided that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of determination and (B) the amount of the secured indebtedness, (vi) all indebtedness of other persons of the types specified in the preceding clauses (i) through (v), to the extent such indebtedness is guaranteed by the Company or any of its Subsidiaries, and (vii) to the extent not otherwise included in this definition, obligations under Currency Agreements and Interest Rate Agreements. The amount of Indebtedness at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, upon the occurrence of the contingency giving rise to the obligation, the maximum liability of any contingent obligations of the types specified in the preceding clauses (i) through (vii) at such date; provided that the amount outstanding at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with UK GAAP.
"Indebtedness For Borrowed Money" means any indebtedness (whether being principal, premium, interest or other amounts) for (i) money borrowed, (ii) payment obligations under or in respect of any acceptance or acceptance credit, or (iii) any notes, bonds, debentures, debenture stock, loan stock or other debt securities offered, issued or distributed whether by way of public offer, private placing, acquisition consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301.
"Indirect Participant" means a Person that holds interests in the Book-Entry Interest through a Person that has an account with DTC.
"Initial Principal Amount" has the meaning specified in Section 202.
"interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.
"Interest Coverage Ratio" means, with respect to the Company on any Measurement Date, the ratio of (i) the aggregate amount of Consolidated EBITDA of the Company for the four fiscal quarters for which financial information in respect thereof is available immediately prior to such Measurement Date to (ii) the aggregate Consolidated Interest Expense during such four fiscal quarters.
"Interest Payment Date", when used with respect to any installment or interest in respect of a Security, means the Stated Maturity of such installment of interest.
"Latest Consolidated Balance Sheet" means, at any date, the then latest consolidated balance sheet forming part of the group accounts of the Company prepared for the purpose of the Companies Act, which have been audited and have been reported on by the Auditors as the main accounts of the Company and prepared in accordance with the historical cost convention modified, if applicable, by the revaluation of land and buildings or any other basis from time to time permitted by applicable law, but adjusted as may be necessary in respect of any variation in the liabilities, paid up share capital or share premium account of the Company since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiaries of the Company and/or as the Company may consider appropriate.
"Letter of Representations" means, with respect to the Securities of any series, the written representations from the Company and the Book-Entry Depository to DTC with respect to any Global Securities of that series.
"Leverage Ratio" means the ratio of Consolidated Debt to Total Capital, calculated on the basis of the Latest Consolidated Balance Sheet, adjusted by the Company to reflect the financial condition of the Company and its Subsidiaries as of a date not more than 60 days prior to a Measurement Date.
"Lien" means any mortgage, lien, pledge, security interest or other encumbrance; provided, however, that the term "Lien" shall not mean any easements, rights-of-way, restrictions and other similar encumbrances and encumbrances consisting of zoning restrictions, leases, subleases, restrictions on the use of property or defects in the title thereto.
"Maturity", when used with respect to any Security or any installment of principal thereof, means the date on which the principal of such Security or installment of principal, as applicable, becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Measurement Date" means the record date for any Distribution.
"Moody's" means Moody's Investors Service, Inc. and any Subsidiary or successor thereof.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by any Director of the Company and by any other Director of the Company or any officer or other person duly authorized by the Board of Directors, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who, unless otherwise specified herein or required by the Trust Indenture Act, may be an employee of or regular counsel for the Company, or may be other counsel reasonably acceptable to the Trustee.
"Optional Definitive Security Request" has the meaning specified in
Section 309(b)(ii).
"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to the Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption money or US Governmental Obligations in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 310 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, (b) if the principal amount of a Security payable at Maturity is to be determined by reference to an index or indices, the principal amount of such Security that shall be deemed to be Outstanding shall be the face amount thereof, (c) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as established as contemplated by Section 301, (d) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be
the US dollar equivalent, determined as of such date in the manner established as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (a) or (b) above, of the amount determined as provided in such Clause), and (e) Securities owned by the Company or any other obligor upon the Securities or any Subsidiary of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned as described in (e) above which have been pledged in good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Subsidiary of the Company or of such other obligor.
"Participant" means a Person that has an account with DTC.
"Paying Agent" means Banque Internationale a Luxembourg S.A. and any other Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company hereunder, including, without limitation, the Principal Paying Agent.
"Permanent Global Security" means a Global Security that is, at the time of the initial issuance of the related series of Securities, issued in permanent form.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"PES Subsidiary" means any Subsidiary of the Company which carries on all or any part of the Group's Distribution Business pursuant to a public electricity supply licence granted under the Electricity Act.
"Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable as specified in or as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purpose of this definition, any Security authenticated and delivered under Section 310 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen security.
"Principal Amount" has the meaning specified in Section 202.
"Principal Paying Agent" means The Bank of New York until a successor Principal Paying Agent shall have become such pursuant to the applicable provisions of this Indenture and, thereafter, "Principal Paying Agent" shall mean such successor Principal Paying Agent.
"Project Finance Indebtedness" means any Indebtedness to finance or refinance the ownership, acquisition, development, design, engineering, procurement, construction, servicing, management and/or operation of any project or asset:
(i) which is incurred by an Excluded Subsidiary; or
(ii) in respect of which the person or persons to whom any such Indebtedness is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than an Excluded Subsidiary) for the repayment thereof other than:
(a) recourse to such member of the Group for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from, or ownership interests or other investments in, such project or asset; and/or
(b) recourse to such member of the Group for the purpose only of enabling amounts to be claimed in respect of such Indebtedness in an enforcement of any encumbrance given by such member of the Group over such project or asset or the income, cash flow or other proceeds deriving therefrom (or given by any shareholder or the like or other investor in the borrower or in the owner of such project or asset over its shares or the like in the capital of, or other investment in, the borrower or in the owner of such project or asset) to secure such Indebtedness, provided that the extent of such recourse to such member of the Group is limited solely to the amount of any recoveries made on any such enforcement; and/or
(c) recourse to such borrower generally, or directly or indirectly to a member of the Group, under any form of assurance, undertaking or support, which recourse is limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for breach of an obligation (not being a payment obligation or an obligation to procure payment by another or an indemnity in respect thereof or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against which such recourse is available.
"QIB" means a Qualified Institutional Buyer, as defined in Rule 144A.
"Rated Securities" means the Securities, if at any time and for so long as they shall have a rating from a Rating Agency, and otherwise any other unsecured and unsubordinated debt of the Company (or of any Subsidiary of the Company and which is guaranteed on an unsecured and unsubordinated basis by the Company) having an initial maturity of five years or more which is rated by a Rating Agency.
"Rating Agency" means (i) S&P and (ii) Moody's, any of their respective Subsidiaries or successors, or, in any case, if such person ceases to rate any series of Securities for reasons outside the control of the Company, any other
"nationally recognized statistical rating organization" (within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the Company as a replacement Rating Agency.
"Redemption Date" means any date on which the Company redeems all or any portion of any Security in accordance with the terms of this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture, exclusive of accrued and unpaid interest.
"Registered Security" means any Security that is payable to a registered owner or registered assigns thereof as registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
"Regulation S" means Regulation S promulgated under the Securities Act, or any successor provision thereto and as may be amended from time to time.
"Regulation S Global Security" has the meaning specified in Section 201.
"Regulation S Security" means Securities of any series offered and sold in their initial distribution to non-US Persons in offshore transactions in reliance on Regulation S, until such time as the Restricted Period shall have terminated.
"Relevant Date" means, for any payment made with respect to the Securities of any series, the later of (i) the date on which such payment first becomes due and (ii) if the full amount payable has not been received in The City of New York by the Book-Entry Depositary or the Trustee on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders in accordance with this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any officer within the Corporate Trust Office, including any secretary, vice president, managing director, assistant vice president, assistant secretary (if any), assistant treasurer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers; and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Restricted Period" has the meaning specified in Section 201.
"Restricted Securities" means Securities required to bear a legend containing Securities Act transfer restrictions, in substantially the form specified in Section 202.
"Rule 144" means Rule 144 promulgated under the Securities Act, or any successor provision thereto and as may be amended from time to time.
"Rule 144A Global Security" has the meaning specified in Section 201.
"Rule 144A Information" has the meaning specified in Section 704.
"Rule 144A Security" means Securities of any series offered and sold in their initial resale distribution to QIBs in reliance on Rule 144A, until such time as the Holding Period shall have terminated.
"S&P" means Standard & Poor's Rating Group and any Subsidiary or successor thereof.
"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
"Securities Act" means the US Securities Act of 1933, as amended.
"Security Register" and "Security Exchange Agent/Registrar" have the respective meanings specified in Section 306.
"Significant Subsidiary" means, at any particular time, any Subsidiary of the Company whose gross assets or gross revenues (having regard to the Company's direct and/or indirect beneficial interest in the shares, or the like, of that subsidiary) represent at least 25% of the consolidated gross assets or, as the case may be, consolidated gross revenues of the Company.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 311.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subsidiary" is defined to mean a Subsidiary or Subsidiary undertaking within the meaning of the Companies Act.
"Total Capital" means the sum of total liabilities plus Capital and Reserves of the Company and its Subsidiaries, as determined on a consolidated basis in accordance with UK GAAP.
"Transfer Agent" means any Person authorized by the Company to effectuate the exchange or transfer of any Security on behalf of the Company hereunder.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the US Trust Indenture Act of 1939, as amended.
"UK GAAP" means generally accepted accounting principles in the United Kingdom as in effect from time to time, consistently applied.
"United Kingdom" means the United Kingdom of Great Britain and Northern Ireland, its territories, its possessions and other areas subject to its jurisdiction.
"United Kingdom Taxes" has the meaning specified in Section 1009.
"United States" and "US" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
"US Government Obligation" means any (a) security which is (i) a direct
obligation of the United States for the payment of which the full faith and
credit of the United States is pledged or (ii) an obligation of a person
controlled or supervised by and acting as an agency of instrumentality of the
United States the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States, which, in the case of clause (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and (b)
depositary receipt issued by a bank (as defined in the Securities Act) as
custodian with respect to any security specified in clause (a) above and held by
such bank for the account of the holder of such depositary receipt or with
respect to any specific payment of principal of or interest on any such security
held by any such bank, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the US Government Obligation or the specific payment of interest on or principal
of the US Government Obligation evidenced by such depository receipt.
"Unrestricted Security" has the meaning specified in Section 201.
102. Certificates and Opinions
Except as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee (i) an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with; provided, that if the Security is to be issued in a registered public offering in the United States, each such Officer's Certificate and Opinion of Counsel shall comply with the requirements of the Trust Indenture Act as if the provisions thereof applied to this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or instrument required to be given or executed by a Director which is not a natural person may be given or executed on behalf of such Director by any duly authorized designee of such Director.
Any certificate or opinion of an officer or Director of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer or Director knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers or Director or Directors of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
104. Acts of Holders; Record Dates
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by the Holders of any series of Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by each such Holder in Person or by an agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, unless otherwise established in or pursuant to a Board Resolution or set forth or determined in an Officers' Certificate, or established in one or more indentures supplemental hereto, in each case pursuant to Section 301, (i) a Holder of any Security, including a Book-Entry Depositary that is a Holder of a Global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by the Holder of any such Security, (ii) a Holder of any such Security, including a Book-Entry Depositary that is a Holder of a Global Security, entitled hereunder to take any action hereunder with regard to such Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of the principal amount of such Security; and (iii) a Book-Entry Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in a Book-Entry Interest in any such Global Security through such Book-Entry Depositary's standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such instrument, writing or proxy may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument, writing or proxy acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument, writing or proxy, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefore or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(e) The principal or face amount and serial numbers of Bearer Securities of any series held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed by the Book-Entry Depositary for such Bearer Securities.
(f) The Company may, in its discretion, by Board Resolution, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, consent, waiver or Act provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series; provided that the Company shall have no obligation to set a record date; and provided further that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to any applicable Expiration Date (as defined below) by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect); provided, however, that no new record date may be established with the purpose or effect of rendering, and no other provision of this paragraph shall be construed to render, ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series; provided
that if the Trustee does not set any record date within ten days after first
receiving any such notice, declaration, rescission and annulment, request or
direction, as the case may be, then the record date shall be the close of
business on the date on which the Trustee first receives any such notice,
declaration, rescission and annulment, request or direction, as the case may be.
If any record date is set by the Trustee pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to any applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect);
provided, however, that no new record date may be established with the purpose
or effect of rendering, and no other provision of this paragraph shall be
construed to render, ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken based on such record date previously set. Promptly after
any record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section 104(f), the party hereto which sets such record date may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the earlier of (i) the existing Expiration Date and (ii) the proposed new Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 90th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
105. Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
106. Notice to Holder; Waiver
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, (i) in the case of a Holder of Registered Securities, at his address as it appears in the Security Register, and (ii) in the case of a Holder of Global Bearer Securities, at the address provided in or pursuant to the relevant Deposit Agreement of the relevant Book-Entry Depositary or Depositaries therefor, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
If, by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to give such notice by mail, then such notification as shall be made at the direction of the Company in a manner reasonably calculated, to the extent practicable under the circumstances, to provide prompt notice shall constitute a sufficient notification for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event and the rules of any securities exchange on which such Bearer Securities are listed so require, such notice shall be sufficiently given to Holders of such Bearer Securities if twice published in such newspaper or newspapers as may be specified in such Securities, in each case on a Business Day, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice by publication shall be deemed to have been given on the date of the first such publication. In addition, notice to the Holder of any Global Bearer Security shall be given by mail in the manner provided above.
If by reason of any cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder, which publication or other notice shall, so far as may be reasonably possible, approximate the terms and conditions of the publication in lieu of which it is given. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver or Act required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication (unless otherwise specified with respect to Securities of any series pursuant to Section 301).
So long as the Securities of a series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of such series will be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxembourger Wort).
Any notice required or permitted hereunder may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
107. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
108. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
109. Separability Clause
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
110. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
111. GOVERNING LAW
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
112. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security established as contemplated by Section 301 hereof which specifically states that such provision shall apply in lieu of this Section)) payment of interest, if any, or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE II
SECURITY FORMS
201. Forms Generally
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, a Board Resolution or one or more indentures supplemental hereto, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon (i) as may be required by law or to comply with the rules of (a) any securities exchange, (b) DTC or any other clearing agency registered as such under the Exchange Act or (c) Euroclear or Cedel; or (ii) as may, consistently herewith, be determined by the Director or Directors executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an authorized Director or officer of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.
The Trustees certificates of authentication shall be in substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Director or Directors executing such Securities, as evidenced by their execution thereof.
Except as otherwise provided pursuant to Section 301, Securities of any series offered and sold in their initial resale distribution to QIBs in reliance on Rule 144A shall initially be issued in the form of one or more Global Securities of such series in bearer form, substantially in the form set forth in this Article, with such applicable legends as are provided for in Section 202. Such Global Securities shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided, and deposited with the Book-Entry Depositary, which will hold such Global Securities for the benefit of DTC. Until such time as the Holding Period (as defined below) shall have terminated, each such Security shall be referred to as a "Rule 144A Global Security. " The aggregate principal amount of any Rule 144A Global Security may be adjusted by endorsements to Schedule A on the reverse thereof in any situation where adjustment is permitted or required by this Indenture. Unless the Company determines otherwise in accordance with applicable law, the legend setting forth transfer restrictions shall be removed from a Rule 144A Security in accordance with the procedures set forth in Section 308(b) after such time as the applicable Holding Period shall have terminated, and each such Security shall thereafter be held as an "Unrestricted Security." As used herein, the term "Holding Period," with respect to Rule 144A Securities of any series, means the period referred to in Rule 144(k) or any successor provision thereto and as may be amended or revised from time to time, beginning from the later of (i) the original issue date of such Securities or (ii) the last date on which the Company or any affiliate of the Company was the beneficial owner of such Securities (or any predecessor thereof).
Except as otherwise provided pursuant to Section 301, Securities of any series offered and sold in their initial distribution to non-US Persons in offshore transactions in reliance on Regulation S shall initially be issued in the form of one or more Global Securities of such series in bearer form, substantially in the form set forth in this Article, with such applicable legends as are provided for in Section 202. Such Global Securities shall be duly executed by the Company and authenticated by the Trustee as herein provided, and deposited with the Book-Entry Depositary, which will hold such Global Securities for the benefit of DTC, for credit initially only to such accounts at Euroclear or Cedel as DTC's Participants may direct. Until such time as the Restricted Period (as defined below) shall have terminated, each such Global Security shall be referred to as a "Regulation S Global Security." The aggregate principal amount of any Regulation S Global Security may be adjusted by endorsements to Schedule A on the reverse thereof in any situation where adjustment is permitted or required by this Indenture. Unless the Company determines otherwise in accordance with applicable law, the legend setting forth transfer restrictions shall be removed from a Regulation S Security in accordance with the procedures set forth in Section 308(b) after such time as the applicable Restricted Period shall have terminated, and each such Security shall thereafter be held as an "Unrestricted Security". As used herein, the term "Restricted Period," with respect to Regulation S Securities of any series, means the period of 40 consecutive days beginning on and including the later of (i) the date on which interests in such Securities are offered to Persons other than distributors (as defined in Regulation S) and (ii) the original issue date of such Securities. Except as otherwise provided pursuant to Section 301, no Regulation S Global Security shall be issued except as provided in this paragraph to evidence Securities offered and sold in their initial distribution in reliance on Regulation S.
202. Form of Face of Security
[If the Security is to be a Global Security, insert--THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS [HELD BY] [REGISTERED IN THE NAME OF] A BOOK-ENTRY DEPOSITARY OR A NOMINEE OF
A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES [HELD BY]
[REGISTERED IN THE NAME OF] A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE BOOK-ENTRY DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A
NOMINEE OF THE BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER
NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
BOOK-ENTRY DEPOSITARY) MAY BE [MADE] [REGISTERED] EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
[REGISTRATION OF TRANSFER,] EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS
ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY,
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS THE [BEARER] [REGISTERED OWNER] HEREOF, THE
BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.]
[If the Security is to be a Restricted Security, insert the applicable language-- [THIS SECURITY HAS BEEN INITIALLY RESOLD IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE:] [THIS SECURITY HAS BEEN ISSUED IN RELIANCE ON REGULATION S UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE:]]
[If the security is to be a Restricted Security, insert--
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR
THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.]
CE ELECTRIC UK FUNDING COMPANY
[Title of the Security]
No. __________ $_________
CUSIP No._________
[ISIN No. ________]
[Common Code:_________]
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CE ELECTRIC UK FUNDING COMPANY, an unlimited company incorporated under
the laws of England and Wales (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [the bearer upon surrender hereof]
[name of registered owner or its registered assigns] [if the Security is a
Global Security, insert-- the Initial Principal Amount specified on Schedule A
hereto (such Initial Principal Amount, as it may from time to time be adjusted
by endorsement on Schedule A hereto, is hereinafter referred to as the
"Principal Amount")] [if this Security is NOT a Global Security, insert-- the
principal sum of ________ Dollars (the "Principal Amount")] on _______ [if the
Security is to bear interest prior to Maturity, insert--, and to pay interest
thereon from or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on and ______ in each year,
commencing, at the rate of ___% per annum, until the Principal Amount hereof is
paid or made available for payment [if applicable, insert--; provided that any
Principal Amount and premium, and any such installment of interest, which is
overdue shall bear interest at the rate of ___% per annum (or, if lower, the
maximum rate legally enforceable), from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable
on demand]. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
[the bearer on such Interest Payment Date] [the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
__________ or _________ (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date]. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to [the
bearer on such Interest Payment Date] [the Person in whose name this Security
(or one or more Predecessor Securities) is registered on such Regular Record
Date] and may be paid to [the bearer at the time of payment of such Defaulted
Interest] [the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date], or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert-- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of [yield to maturity] % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. [Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of [yield to maturity] % per annum (or, if lower, the maximum rate legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
[If this Security is not a Global Bearer Security, insert-- Payment of
the principal of (and premium, if any) and interest, if any, on this Security
will be made at any place of payment or at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York in
such coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts [If this Security is
not a Global Security, insert-- ; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register].
[If this Security is a Global Security, insert applicable manner of payment.]]
[If the Security is a Global Bearer Security, insert-- Payment of the principal of (and premium, if any) and interest on this Security shall be payable only through a Paying Agent located outside the United States and the United Kingdom in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts; provided, that such Paying Agent shall be permitted to make use of a US-based bank account for such purpose. [Insert applicable manner of payment.]]
All payments of principal and interest (including payments of discount and premium, if any) in respect of this Security shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within the United Kingdom or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("United Kingdom Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction the Company shall pay to the relevant Holders such additional amounts ("Additional Amounts") as will result in the payment to such Holders of the amount that would otherwise have been receivable by such Holders in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such United Kingdom Taxes in respect of this Security by reason of such Holder (or a fiduciary, settlor, beneficiary, member or shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some connection with the United Kingdom (including but not limited to being a citizen or resident or national or domiciliary of, or carrying on a trade or business or maintaining a permanent establishment, or being physically present in, the United Kingdom) other than the mere holding of this Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority or who fails to comply with any other certification, filing, identification, information or other reporting requirements if such is a precondition to exemption from, or the reduction in the rate of, deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal property taxes or any similar taxes, duties, assessments or other governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of any definitive Registered Security issued pursuant to an Optional Definitive Security Request.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (f) above. If the Company shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in respect of this Security shall be deemed also to refer to any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to the Holder of this Security upon request.
[Insert any special notice provisions required by any stock exchanges upon which the Securities of a series are to be listed.]
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:____________ By:______________________
Authorized Signatory
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203. Form of Reverse of Security
CE ELECTRIC UK FUNDING COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of December 15, 1997 (herein called the "Original Indenture"), among the Company and The Bank of New York, as trustee, principal paying agent, security exchange agent/registrar and transfer agent (herein called the "Trustee", which term includes any successor trustee under the Original Indenture), and Banque Internationale a Luxembourg S.A., as paying agent and transfer agent (herein called the "Paying Agent and Transfer Agent," which term includes any successor paying and transfer agent under the Original Indenture), [insert particulars with respect to any indentures supplemental thereto pursuant to which the Securities of this series are being issued] to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Terms defined in the Indenture which are not defined herein are used with the meanings assigned to them in the Indenture. This Security is one of theseries designated on the face hereof [if applicable, insert--limited in aggregate principal amount to $________ ].
[If applicable, insert-- This Security is not subject to redemption prior to maturity.]
[If applicable, insert-- The Securities of this series are subject to redemption upon not less than 30 or more than 60 days' notice to the Holders of such Securities as provided in the Indenture, [If applicable, insert-- (1) on ______________ in any year commencing with the year _____ and ending with the year through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [on or after __________ ___], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [if applicable, insert-- on or before ________________, ___%, and if redeemed] during the 12-month period beginning _______________, of the years indicated:
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable, insert-- (whether through operation of the sinking fund or otherwise)] with accrued and unpaid interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, all as provided in the Indenture.]
[If applicable, insert-- The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days' notice to the Holders of such Securities, as provided in the Indenture (1) on _______________ in any year commencing with the year and ending with the year _____ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after ___________________], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning ____________ of the years indicated:
Redemption Price Redemption Price for Redemption
for Redemption Through Operation Otherwise Than Through Operation of
Year of Sinking Fund the Sinking Fund
-------------------------------------------------------------------------------
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and thereafter at a Redemption Price equal to_____% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued and unpaid interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, all as provided in the Indenture.]
[If applicable, insert-- Notwithstanding the foregoing, the Company may not, prior to _______________, redeem any Securities of this series as contemplated by [Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than % per annum.]
[If applicable, insert-- The sinking fund for this series provides for
the redemption on _______________ in each year beginning with the year _____ and
ending with the year _____ of [If applicable, insert-- not less than $
__________ ("mandatory sinking fund") and, at the option of the Company, not
more than] $__________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the order in
which they become due].]
[If applicable, insert-- The Securities of this series will be redeemable in whole or in part, at the option of the Company at any time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities of this series being redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities of this series being redeemed discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield plus __________ basis points, plus, for (i) or (ii) above, whichever is applicable, accrued interest on the Securities of this series to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day in New York City preceding such Redemption Date, as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for US Government Securities" or (ii) if such release (or any successor release)
is not published or does not contain such prices on such Business Day, the
Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent investment banking institution of international standing appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to the Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount and quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day in New York City preceding such redemption date).
"Reference Treasury Dealer" means a primary US Government securities dealer in New York City appointed by the Company.
Notice of redemption shall be given as provided for in the Indenture not less than 30 days nor more than 60 days prior to the Redemption Date.
If fewer than all the Securities of this series are to be redeemed, selection of Securities of this series for redemption will be made by the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption Price, from and after the Redemption Date, the Securities of this series or portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect of such Securities of this series except the right to receive the Redemption Price thereof.]
[If the Security is subject to redemption of any kind, insert-- In the event of redemption of this Security in part only, the Trustee will reduce the Principal Amount hereof by endorsement on Schedule A hereto such that the Principal Amount shown on Schedule A after such endorsement will reflect only the unredeemed portion hereof.]
[If applicable, insert-- The Securities of this series are subject to redemption in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture to the Holders of Securities of this series at a price equal to the outstanding principal amount thereof together with Additional Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date if: (a) the Company has or will become obliged to pay Additional Amounts as a result of [either (x)] any change in, or amendment to, the laws or regulations of the United Kingdom or any political subdivision or any authority or agency thereof or therein having power to tax or levy duties, or any change in the application or interpretation of such laws or regulations, which change or amendment becomes effective on or after the [date of the underwriting or purchase agreement with respect to the Securities of this series,] [If the Security is a Global Security, insert-- or (y) the issuance of definitive Registered Securities at any time because (i) of an Optional Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests, or DTC at any time ceases to be a "clearing agency" registered as such under the Exchange Act, and, in either case, a successor is not appointed by the Company within 120 days; (iii) while this Global Security is subject to the transfer restrictions set forth in the legend hereon, the Book-Entry Interests cease to be eligible for DTC services because the Securities of such series are neither rated in one of the top four categories by a nationally recognized statistical rating organization nor included within a Self-Regulatory Organization system approved by the Commission for the reporting of quotation and trade information of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to this Security, and no successor is appointed by the Company within 120 days;] and (b) such obligation cannot be avoided by the Company taking reasonable measures available to it; provided that (i) that no notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obliged to pay such Additional Amounts were a payment in respect of the Securities then due; and (ii) prior to the publication of any such notice of redemption, the Company shall deliver to the Trustee both an opinion of independent legal counsel of recognized standing addressed to the Company stating that the Company is entitled to effect such redemption, and an Officers' Certificate in the form specified in the Indenture stating that the obligation to pay Additional Amounts referred to in (a) above cannot be avoided by the Company taking reasonable measures available to it.]
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
[If the Security is NOT an Original Issue Discount Security, insert-- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to Securities of this series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to Securities of this series have been cured or waived (other than the non-payment of principal of the Securities of this series which has become due solely by reason of such declaration of acceleration) then and in every such case, the Holders of a majority in aggregate principal amount of the Outstanding securities of such series may, by written notice to the Company and to the Trustee, rescind and annul such declaration and its consequences on behalf of all of the Holders, but no such recision or annulment shall extend to or affect any subsequent default or impair any right consequent thereon.]
[If the Security is an Original Issue Discount Security, insert--If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series (the "Acceleration Amount") may be declared due and payable in the manner and with the effect provided in the Indenture. In case of a declaration of acceleration on or before __________ in any year, the Acceleration Amount per $__________ principal amount at Stated Maturity of the Securities shall be equal to the amount set forth in respect of such date below:
Acceleration Amount per $__________ principal amount Date of declaration at Stated Maturity
and in case of a declaration of acceleration on any other date, the Acceleration Amount shall be equal to the Acceleration Amount as of the immediately preceding date set forth in the table above, plus accrued original issue discount (computed in accordance with the method used for calculating the amount of original issue discount that accrues for United States federal income tax purposes) from such next preceding date to the date of declaration at the yield to maturity. For the purpose of this computation the yield to maturity is ____%. Upon payment (i) of the Acceleration Amount so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and rights of the Holders of the Securities of any series at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest, if any, on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
[If this Security is a Global Security, insert-- This Security shall be exchangeable for Securities of this series registered in the names of Persons other than the Book-Entry Depositary with respect to such series or its nominee only as provided in this paragraph. This Security shall be so exchangeable in whole but not in part if (a) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests or DTC at any time ceases to be a "clearing agency" registered as such under the Exchange Act, and, in either case, a successor is not appointed by the Company within 120 days, (b) while this Global Security is subject to the transfer restrictions set forth in the legend hereon, the Book-Entry Interests cease to be eligible for DTC services because the Securities of such series are neither (i) rated in one of the top four categories by a nationally recognized statistical rating organization nor (ii) included within a Self-Regulatory Organization system approved by the Securities and Exchange Commission for the reporting of quotation and trade information of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL system, (c) the Book-Entry Depositary for Securities of this series notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to this Security and no successor is appointed within 120 days, or (d) the Company in its sole discretion executes and delivers to the Trustee an Officers' Certificate providing that this Security shall be so exchangeable. Additionally, this Security shall be so exchangeable in whole or in part if there shall have occurred and be continuing an Event of Default with respect to the Securities of this series and the Holder, in such circumstance, shall have requested in writing that this Security be exchanged for one or more definitive Registered Securities (an "Optional Definitive Security Request"). Securities so issued in exchange for this Security shall be of the same series, having the same interest rate, if any, and maturity and having the same terms as this Security, in authorized denominations and in the aggregate having the same principal amount as this Security and registered in such names as the Book-Entry Depositary for this Security shall direct based on the instructions of DTC.]
[If this Security is a Registered Security, insert-- As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
[if this Security is a Registered Global Security, insert-- a Security of the
series of which this Security is a part] [If this Security is a Registered
Security but not a Global Security, insert-- this Security] is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest, if any, on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.]
[If this Security is a Global Bearer Security, insert-- The bearer of this Global Security shall be treated as the owner of it for all purposes, subject to the terms of the Indenture.] As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination as requested by the Holder surrendering the same.
[If this Security is a definitive Registered Security, insert-- Definitive Securities of the series of which this Security is a part are issuable only in registered form without coupons in denominations of $10,000 and any integral multiple of $1,000 in excess thereof.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
[If this Security is a Registered Security, insert-- Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.]
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities of this series and may otherwise deal with the Company, its Subsidiaries or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company shall have any liability for any obligation of the Company under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities of this series by accepting a Security of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
[Customary abbreviations may be used in the name of a Holder of a Registered Security of this series or an assignee such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).]
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. [If this Security is to be listed on the Luxembourg Stock Exchange or is a Regulation S Security, insert -- This Security will also bear an ISIN number and a Common Code.] No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
[IF SECURITY IS A GLOBAL SECURITY, INSERT AS A SEPARATE PAGE--]
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_______________
Date Principal Principal Principal Notation made
adjustment amount amount amount on behalf of the
made increase decrease following Security Exchange
adjustment Agent/Registrar
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204. Form of Trustee's Certificate of Authentication
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:___________ By: _______________________
Authorized Signatory
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205. Form of Trustee's Certificate of Authentication by an Authenticating Agent
If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee's Certificate of Authentication by such Authenticating Agent to be borne by the Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: [NAME OF AUTHENTICATING
AGENT],
as Authenticating Agent
Dated:___________ By: __________________________________ Authorized Signatory
ARTICLE III
THE SECURITIES
301. Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section 303, set forth or determined in the manner provided in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 305, 306, 309 or 906, and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other than (a) the bearer (in the case of a Global Bearer Security) or (b) the Person in whose name the Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest (in the case of a Registered Security);
(4) the date or dates on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date;
(6) the place or places, if any, in addition to or in the place of the Corporate Trust Office, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable and (in the case of the Registered Securities) where such Securities may be registered or transferred;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof; and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation; and any provisions in addition to or in lieu of the provisions of Article Twelve applicable to the Securities of such series;
(9) if other than denominations of $10,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(11) if other than such coin or currency of the United States of America as at the time of payment is legal tender for payment of public or private debts, the coin or currency, including composite currencies such as the European Currency Unit, in which payment of the principal of (and premium, if any) and interest, if any, on the Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the designation of "Outstanding" in Section 101;
(12) if the principal of (and premium, if any) or interest, if any, on the Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated to be payable, the currency, currencies or currency units which may be elected and the period or periods within which, and the terms and conditions upon which, such election may be made and the amount so payable;
(13) if the amount of payments of principal of (and premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(15) any provisions permitted by this Indenture relating to Events of Default or covenants of the Company with respect to such series of Securities (including whether or not Additional Amounts are to be payable with respect to such series of Securities);
(16) if the Securities of the series shall be issued in whole or in part in
the form of one or more Global Securities, (i) whether beneficial
owners of interests in any such Global Security may exchange such
interests for Securities of such series of like tenor and of authorized
form and denomination and the circumstances under which any such
changes may occur, if other than in the manner provided in Section
309(b)(ii), and any related certificates in addition to those set forth
in Section 315 and, (ii) the Book-Entry Depositary for such Global
Security or Securities;
(17) if the Company wishes to issue definitive Bearer Securities, then all provisions relating to or governing such Bearer Securities will be set forth in an indenture supplemental hereto;
(18) any deletion of, addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(19) any deletion of, addition to or change in the covenants set forth in Sections 1004 and 1005 which applies to Securities of the series;
(20) any information the Company shall be obligated to provide to the Trustee, and the Trustee shall be obligated to promptly forward to Holders of Securities of the series, pursuant to Section 703(b);
(21) the form of any legend(s) which shall be borne by any Restricted
Securities in addition to or in lieu of that set forth in Section 202;
any circumstances in addition to or in lieu of those set forth in
Section 308(b) in which such legend(s) may be removed or modified; any
circumstances in addition to or in lieu of those set forth in Section
308(a) in which definitive Securities may be registered for transfer;
and any certificates in addition to or in lieu of those set forth in
Section 315; and
(22) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and set forth in the Officers' Certificate referred to above or in any indenture supplemental hereto referred to above.
If any of the terms of the Securities of a series, including the form of Security of such series, are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by a Director or any authorized officer of the Company, and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such series of Securities.
302. Denominations
The Securities of each series shall be issuable in bearer form or in registered form without coupons, except as otherwise expressly provided in a supplemental indenture hereto, in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $10,000 and any integral multiple of $1,000 in excess thereof.
303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by any Director of the Company so authorized and need not be attested. Definitive Registered Securities of any series may have the Company's seal reproduced thereon which need not be attested. The Securities of any series shall be executed by such additional Director or officer, if any, as shall be specified pursuant to Section 301. The signature of any such Person on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any individual who was at any time the proper Director or officer (if applicable), or the designee of either of them, of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of authentication of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601 and 603) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by
Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general principles of equity and such other matters as counsel may specify therein.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued and reasonably contemplate the issuance of each Security of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee or an Authenticating Agent by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
304. Transfer Agent and Paying Agent
For so long as Securities of any series are listed on the Luxembourg Stock Exchange and such stock exchange shall so require, the Company shall maintain a Paying Agent and Transfer Agent in Luxembourg.
The Company shall enter into an appropriate agency agreement with any Security Exchange Agent/Registrar, Transfer Agent or Paying Agent not a party to this Indenture, which shall implement the provisions of this Indenture that relate to such Person. The Company shall notify the Trustee of the name and address of any such Person. If the Company fails to maintain a Security Exchange Agent/Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 607. The Company initially appoints the Trustee as Transfer Agent and Principal Paying Agent in The City of New York and Banque Internationale a Luxembourg S.A. as Paying Agent and Transfer Agent in Luxembourg in connection with the Securities.
305. Temporary Securities
Pending the preparation of definitive Securities of any series, the Company may execute, and upon compliance by the Company with Section 303, the Trustee or the Authenticating Agent shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form, and with such appropriate insertions, omissions, substitutions and other variations as the Director or officer (if applicable) executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder except as provided in Section 306 (if in connection with a transfer) and except that a Person receiving definitive Bearer Securities shall bear the cost of insurance, postage, transportation and the like. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security for the individual Securities represented thereby pursuant to this Section 305 or Section 306, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount of such temporary Global Security, and such principal amount shall be reduced for all purposes by the amount so exchanged and endorsed.
306. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities, transfers of Registered Securities and Restricted Securities and exchanges of Securities. The Trustee is hereby initially appointed "Security Exchange Agent/Registrar" for the purpose of registering Registered Securities and transfers of Registered Securities and Restricted Securities, and for the purpose of exchanging Securities, all as herein provided. The Company may appoint one or more coregistrars and the term "Security Exchange Agent/Registrar" includes any coregistrar. For so long as a series of Securities is listed on the Luxembourg Stock Exchange and the rules of such Exchange so require, and if the Securities of such series have been issued in definitive registered form, an office or agency where the Securities of such series may be surrendered for registration of transfer and exchange shall be maintained in Luxembourg.
Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, any Registered Security or Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and upon receipt of a Company Order the Trustee or the Authenticating Agent shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
The Trustee, the Authenticating Agent or the Security Exchange Agent/Registrar may not deliver definitive Bearer Securities in exchange for Registered Securities.
All Securities issued upon any registration of transfer or exchange of Securities as provided in this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Exchange Agent/Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 305, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption under Section 1103 and ending at the close of business on the day of such mailing, (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of the series (but only if and under the circumstances for which the Securities of such series are issuable as Registered Securities), provided that such Registered Security shall be immediately surrendered for redemption with written instructions for payment consistent with the provisions of this Indenture.
The provisions of this Section 306 are, with respect to any Global Security, subject to Section 309 hereof.
307. Bearer Securities
A Global Bearer Security may be transferred in any manner not inconsistent with, or exchanged for another Security of the same series as provided in, Section 308(a)(i) and Section 309. Bearer Securities of any series may be issued in definitive form only as may be provided in an indenture supplemental hereto, in accordance with Section 301(17); provided that no Bearer Security may be issued in definitive form with respect to any series of Securities which are Restricted Securities.
308. Restricted Securities
(a) Transfer and Exchange.
(i) In General. Every Restricted Security shall be
subject to the restrictions on transfer provided in the applicable legend(s)
required to be set forth on the face of each Restricted Security pursuant to
Section 201 or as provided pursuant to Section 301, unless such restrictions on
transfer shall be waived or modified, in accordance with applicable laws, by the
written consent of the Company. Each of the Holder of each Restricted Security,
and the owners of beneficial interests in any Book-Entry Interest therein, by
its acceptance thereof, agrees to be bound by such restrictions on transfer.
(ii) Special Provisions Regarding Transfer of
Restricted Securities in Definitive Form. Unless expressly provided otherwise
in the Indenture, whenever any Restricted Security is presented or surrendered
for registration of transfer, such Restricted Security must be accompanied by a
certificate in substantially the form set forth in or contemplated by Section
315(b) (which may be attached to or set forth in the Restricted Security),
appropriately completed, dated the date of such surrender and signed by the
Holder of such Restricted Security, as to compliance with such restrictions on
transfer, unless the Company shall have notified the Trustee that there is an
effective registration statement under the Securities Act with respect to such
Restricted Security. Neither the Security Exchange Agent/Registrar nor any
Transfer Agent shall be required to accept for such registration of transfer or
exchange any Restricted Security not so accompanied by a properly completed
certificate.
(b) Removal of Transfer Restrictions.
Unless with respect to the whole or any portion of any Restricted Security the Company determines otherwise in accordance with applicable law, transfer restrictions and any restrictive legend(s) with respect to Restricted Securities of any series shall be removed by the Company (i) in the case of Rule 144A Securities, upon presentation of such Security by the Holder at any time on or after the expiration of the Holding Period, or (ii) in the case of Regulation S Securities, upon presentation or such Security by the Holder at any time on or after the expiration of the Restricted Period. Thereafter, upon registration of transfer of or exchange of such Securities, the Company shall execute, and the Trustee shall authenticate and deliver, an Unrestricted Security.
Except as otherwise provided in the preceding paragraph, if Securities are issued upon the registration of transfer, exchange or replacement of Securities bearing a legend or legends setting forth restrictions on transfer, or if a request is made to remove such legend(s) from a Security, the Securities so issued shall bear such legend(s), or such legend(s) shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence (which may include an opinion, reasonably satisfactory to the Company, of independent counsel experienced in matters of United States securities law) as may be reasonably required by the Company that neither such legend(s) nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 or Regulation S under the Securities Act or that such Securities are not "restricted securities" within the meaning of Rule 144 under the Securities Act. Upon provision of such satisfactory evidence to the Company, the Trustee, at the direction of the Company, shall authenticate and deliver a Security that does not bear such legend(s). In the absence of bad faith on its part, the Trustee may conclusively rely upon such direction of the Company in authenticating and delivering a Security that does not bear such legend(s).
As used in this Section 308, the term "transfer" encompasses any sale, pledge or other transfer of any Securities referred to herein.
309. Global Securities
(a) Form and Legend.
If the Company shall establish pursuant to Section 301 that the Securities of a particular series are to be issued in the form of a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 303, authenticate and deliver, a Global Security or Securities which (i) shall represent, and shall be denominated in an aggregate amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be in bearer form or, if in registered form, registered in the name of the Book-Entry Depositary or its nominee, (iii) shall be delivered by the Trustee to the Book-Entry Depositary for such series or pursuant to the Book-Entry Depositary's instruction and (iv) shall bear a legend substantially to the effect of the first two paragraphs of the form of face of Security set forth in Section 202.
(b) Transfer and Exchange.
(i) Transfers of Global Notes as such. Except as otherwise expressly provided in this Indenture or any supplement thereto, a Global Security representing all or a portion of the Securities of a series may not be transferred in global form, except as a whole (i) by the Book-Entry Depositary for such series to a nominee of such Book-Entry Depositary; (ii) by a nominee of such Book-Entry Depositary to such Book-Entry Depositary or another nominee of such Book-Entry Depositary; or (iii) by such Book-Entry Depositary or any such nominee to a successor Book-Entry Depositary for such series or a nominee of such successor Book-Entry Depositary.
(ii) Exchanges of Globa1 Securities for Definitive Securities. A Global Security of a series shall be exchangeable, in whole but not in part, for definitive Securities of such series if (a) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests or DTC at any time ceases to be a "clearing agency" registered as such under the Exchange Act, and, in either case, a successor is not appointed by the Company within 120 days; (b) while a Global Security is a Restricted Security the Book-Entry Interests cease to be eligible for DTC services because the Securities of such series are neither (i) rated in one of the top four categories by a nationally recognized statistical rating organization nor (ii) included within a Self-Regulatory Organization system approved by the Commission for the reporting of quotation and trade information of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL system; (c) the Book-Entry Depositary for Securities of this series notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to such Global Security and no successor is appointed within 120 days; or (d) the Company in its sole discretion executes and delivers to the Trustee an Officers' Certificate providing that such Global Security shall be so exchangeable. Securities so issued in exchange for any such Global Security shall be of the same series, having the same interest rate, if any, and maturity and having the same terms as such Global Security, in authorized denominations and in the aggregate having the same principal amount as such Global Security and registered in such names as the Book-Entry Depositary for such Global Security shall direct based on the instructions of DTC. Upon such exchange, the surrendered Global Security shall be cancelled by the Trustee.
A Global Security of a series shall be exchangeable, in whole or in
part, for definitive Registered Securities of such series if there shall have
occurred and be continuing an Event of Default with respect to the Securities of
such series and the Holder, in such circumstances, shall have requested in
writing that all or a part of the Global Security of such series be exchanged
for one or more definitive Registered Securities (an "Optional Definitive
Security Request"). Upon any such surrender, (i) the Company shall execute and
the Trustee shall authenticate and deliver without charge to each Person
specified by DTC, in exchange for such Person's beneficial interest in the
Book-Entry Interest in the Global Security, a new Security or Securities of the
same series in definitive registered form having the same interest rate, if any,
and maturity and having the same terms as such Global Security, in any
authorized denomination requested by such Person and of an aggregate principal
amount equal to such Person's beneficial interest in the Global Security; and
(ii) if the Global Security is being exchanged (x) as a whole, then the
surrendered Global Security shall be cancelled by the Trustee, or (y) in part,
then the principal amount of the surrendered Global Security shall be reduced by
an endorsement on Schedule A thereto in the appropriate amount.
Unless otherwise provided pursuant to a Board Resolution in accordance with Section 301, definitive Securities issued in exchange for a Global Security pursuant to this Section 309(b)(ii) shall be issued only in registered form and shall be registered in such names and in such authorized denominations as the Book-Entry Depositary for such Global Security, pursuant to instructions from DTC and its Participants or Indirect Participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
(c) Beneficial Interests.
Subject to Section 308 and Section 309, beneficial interests in the Book-Entry Interest in a Global Security may be transferred in any manner consistent with the Applicable Procedures and the Deposit Agreement.
(d) Special Provisions Regarding Transfer of Beneficial Interests in a Regulation S Global Security.
The transfer of beneficial interests in a Book-Entry Interest in a Regulation S Global Security shall be effected in a manner not inconsistent with the following provisions:
(i) Transfer Through a Rule 144A Global Security. If the holder of a beneficial interest in a Book-Entry Interest in a Regulation S Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Rule 144A Global Security, such transfer may be effected, subject to the Applicable Procedures, only in accordance with this Section 309(d)(i). Upon receipt by the Book-Entry Depositary of the instructions, order and certificate set forth below, the Book-Entry Depositary shall promptly forward the same to the Security Exchange Agent/Registrar at the Corporate Trust Office. Upon receipt by the Security Exchange Agent/Registrar from the Book-Entry Depositary at the Corporate Trust Office of (1) written instructions given in accordance with the Applicable Procedures from a Participant directing the Book-Entry Depositary to cause to be credited to a specified Participant's account a beneficial interest in a Book-Entry Interest in the Rule 144A Global Security equal to that of the beneficial interest in the Book-Entry Interest in the Regulation S Global Security to be so transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of the Participant to be credited with, and the account of the Participant held for Euroclear or Cedel (as the case may be) to be debited for, such beneficial interest, and (3) a certificate substantially in the form set forth in or contemplated by Section 315(a) given by the transferor of such beneficial interest, the Security Exchange Agent/Registrar, shall (A) reduce the principal amount of the Regulation S Global Security, and increase the principal amount of the Rule 144A Global Security, in each case by an amount equal to the principal amount of the beneficial interest in the Book-Entry Interest in the Regulation S Global Security to be so transferred, as evidenced by appropriate endorsements on Schedule A of the respective Global Securities and (B) instruct the Book-Entry Depositary, which shall instruct DTC in accordance with the Letter of Representations (x) to make corresponding reductions and increases to the Book-Entry Interests in the respective Global Securities and (y) to cause to be credited to the account of the Person specified in such instructions a beneficial interest in a Book-Entry Interest in the Rule 144A Global Security having a principal amount equal to the amount by which the principal amount of the Book-Entry Interest in the Regulation S Global Security was reduced upon such transfer.
Delivery of a beneficial interest in a Book-Entry Interest in the Regulation S Global Security of any series may not be taken in the form of a beneficial interest in a Book-Entry Interest in the Rule 144A Global Security if immediately prior to the contemplated transfer no Rule 144A Global Security of the same series is then Outstanding.
(ii) Interests in Regulation S Global Security Initially to be Held Through Euroclear or Cedel. Until the termination of the Restricted Period with respect to Securities of a series, beneficial interests in any Book-Entry Interest in a Regulation S Global Security of such series may be held only through Participants acting for and on behalf of Euroclear and Cedel; provided that this Section 309(d)(ii) shall not prohibit any transfer otherwise permissible under Section 309(d)(i).
(e) Special Provisions Regarding Transfer of Beneficial Interests in a Rule 144A Global Security.
The transfer of beneficial interests in a Book-Entry Interest in a Rule 144A Global Security shall be effected in a manner not inconsistent with the following provisions:
(i) Transfer Through a Regulation S Global Security. If the holder of a beneficial interest in a Book-Entry Interest in a Rule 144A Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Regulation S Global Security, such transfer may be effected, subject to the Applicable Procedures, only in accordance with this Section 309(e)(i). Upon receipt by the Book-Entry Depositary of the instructions, order and certificate set forth below, the Book-Entry Depositary shall promptly forward the same to the Security Exchange Agent/Registrar at the Corporate Trust Office. Upon receipt by the Security Exchange Agent/Registrar from the Book-Entry Depositary at the Corporate Trust Office of (1) written instructions given in accordance with the Applicable Procedures from a Participant directing the Book-Entry
Depositary to cause to be credited to a specified Participant's account a beneficial interest in a Book-Entry Interest in the Regulation S Global Security equal to that of the beneficial interest in the Book-Entry Interest in the Rule 144A Global Security to be so transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Participant held for Euroclear or Cedel (as the case may be) to be credited with, and the account of the Participant to be debited for, such beneficial interest, and (3) a certificate substantially in the form set forth in or contemplated by Section 315(c) given by the transferor of such beneficial interest, the Security Exchange Agent/Registrar, shall (A) reduce the principal amount of the Rule 144A Global Security, and increase the principal amount of the Regulation S Global Security, in each case by an amount equal to the principal amount of the beneficial interest in the Book-Entry Interest in the Rule 144A Global Security to be so transferred, as evidenced by appropriate endorsements on Schedule A of the respective Global Securities and (B) instruct the Book-Entry Depositary, which shall instruct DTC in accordance with the Letter of Representations (x) to make corresponding reductions and increases to the Book-Entry Interests in the respective Global Securities and (y) to cause to be credited to the account of the Person specified in such instructions a beneficial interest in a Book-Entry Interest in the Regulation S Global Security having a principal amount equal to the amount by which the principal amount of the Book-Entry Interest in the Rule 144A Global Security was reduced upon such transfer.
Delivery of a beneficial interest in a Book-Entry Interest in the Rule 144A Global Security of any series may not be taken in the form of a beneficial interest in a Book-Entry Interest in the Regulation S Global Security if immediately prior to the contemplated transfer no Regulation S Global Security of the same series is then Outstanding.
(ii) Transfer Through an Unrestricted Global
Security. If the holder of a beneficial interest in a Book-Entry Interest in a
Rule 144A Global Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this Section 309(e)(ii). Upon
receipt by the Book-Entry Depositary of the instructions, order and certificate
set forth below, the Book-Entry Depositary shall promptly forward the same to
the Security Exchange Agent/Registrar at the Corporate Trust Office. Upon
receipt by the Security Exchange Agent/Registrar from the Book-Entry Depositary
at the Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a Participant directing the Book-Entry
Depositary to cause to be credited to a specified Participant's account a
beneficial interest in a Book-Entry Interest in the Unrestricted Global Security
equal to that of the beneficial interest in the Book-Entry Interest in the Rule
144A Global Security to be so transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
account of the Participant (and, in the case of any such transfer pursuant to
Regulation S, the Euroclear or Cedel account for which such Participant's
account is held) to be credited with, and the account of the Participant to be
debited for, such beneficial interest, and (3) a certificate substantially in
the form set forth in or contemplated by Section 315(d) given by the transferor
of such beneficial interest, the Security Exchange Agent/Registrar, shall (A)
reduce the principal amount of the Rule 144A Global Security, and increase the
principal amount of the Unrestricted Global Security, in each case by an amount
equal to the principal amount of the beneficial interest in the Book-Entry
Interest in the Rule 144A Global Security to be so transferred, as evidenced by
appropriate endorsements on Schedule A of the respective Global Securities and
(B) instruct the Book-Entry Depositary, which shall instruct DTC in accordance
with the Letter of Representations (x) to make corresponding reductions and
increases to the Book-Entry Interests in the respective Global Securities and
(y) to cause to be credited to the account of the Person specified in such
instructions a beneficial interest in a Book-Entry Interest in the Unrestricted
Global Security having a principal amount equal to the amount by which the
principal amount of the Book-Entry Interest in the Rule 144A Global Security was
reduced upon such transfer.
(f) Deposit Agreement. If so provided pursuant to Section 301, the Company and the Book-Entry Depositary shall enter into a Deposit Agreement setting forth, among other things, the rights and duties of the Book-Entry Depositary as custodian for Bearer Global Securities of any series.
310. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such Security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security, in each such case without premium or penalty.
Upon the issuance of any new Security under this Section 310, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 310 in exchange for any mutilated Security or in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 310 are exclusive and shall preclude (to the extent lawful) all other Rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
311. Payment of Interest; Interest Rights Reserved
Except as may otherwise be established as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable and is punctually paid or duly provided for on any Interest Payment Date shall be paid, in the case of a Bearer Security, to the bearer thereof or, in the case of a Registered Security, to the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Payment of interest, if any, in respect of any Registered Security will be made by check mailed to the address of the Person entitled thereto as such person's address appearing in the Security Register. Payment of interest, if any, in respect of any Registered Security may also be made, in the case of a Holder of at least US $1,000,000 aggregate principal amount of Registered Securities, and payment of interest, if any, in respect of a Permanent Global Security shall be made, by wire transfer to a US Dollar account maintained by the Holder with a bank in the United States; provided that such Holder elects payment by wire transfer by giving written notice to the Trustee or a Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall, in the case of Registered Securities,
forthwith cease to be payable to the Holder thereof on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in Clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. Unless the Trustee is acting as the Security Exchange Agent/Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and respective principal amounts of such Registered Securities held by, the Holders appearing on the Security Register at the close of business on such Special Record Date. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date ~herefore to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date ~herefore having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series or any Permanent Global Security in any other lawful manner not inconsistent with the requirements of any Securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange.
Defaulted Interest on Global Bearer Securities shall be payable to the bearer thereof at the time of payment of such Defaulted Interest by the Company.
Subject to the foregoing provisions of this Section 311, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security, shall carry the Rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
312. Persons Deemed Owners
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 311) interest, if any, on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. All such payments so made to any such person, or upon such person's order, shall be valid, and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Security.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of a Global Bearer Security as the absolute owner of such Security for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever under this Indenture, whether or not such Global Bearer Security or payment be overdue, and neither the Company or the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Holders of beneficial interests in a Book-Entry Interest in a Global Security of any series will not be entitled to receive certificates therefor, except in the limited circumstances set forth in Section 309(b)(ii). No holder of any beneficial interest in a Book-Entry Interest in a Global Security shall have any rights under this Indenture with respect to such Global Security.
The Trustee shall not deem requests or directions from, or votes by, the Book-Entry Depositary for a Global Security of any series to be inconsistent if made on behalf of different holders of beneficial interests in a Book-Entry Interest.
Dealings between the Book-Entry Depositary and DTC and its Participants relating to exercising the rights of the Holders hereunder and the rights of owners of beneficial interests in any Book-Entry Interest in a Global Bearer Security shall be governed by the Deposit Agreement and the Letter of Representations.
313. Cancellation
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 313, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be returned to the Company upon written request.
314. Computation of Interest
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
315. Certification Form
(a) Except as otherwise specified as contemplated by Section 301 for Securities of any series, whenever any certification is to be given by a beneficial owner of a Book-Entry Interest in a Regulation S Global Security pursuant to Section 309(d) of this Indenture, in connection with the transfer of a beneficial interest therein to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Book-Entry Interest in a Rule 144A Global Security, such certification shall be provided substantially in the form of the following certificate (which may be attached to or set forth on the Security), including or omitting bracketed language as appropriate, but otherwise with only such changes as may be approved in writing by the Company:
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OR EXCHANGE FROM REGULATION S
GLOBAL SECURITY TO RULE 144A GLOBAL SECURITY
(Transfers Pursuant to ss.309(d) of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York, New York 10286
Re: CE Electric UK Funding Company % Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15, 1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent and Banque Internationale a Luxembourg S.A., as Paying Agent and Transfer Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to US $ principal amount of Securities which are evidenced by one or more Regulation S Global Securities in bearer form (ISIN No. _____) and held with the Book-Entry Depositary by means of a Book-Entry Interest through [Euroclear] [Cedel] in the name of [insert name of transferor] (the "Transferor").] The Transferor has requested a transfer of such beneficial interest in the Book-Entry Interest to a Person that will take delivery thereof (the "Transferee") in the form of any equal principal amount of Securities evidenced by one or more Rule 144A Global Securities (CUSIP No. ).]
In connection with such request and in respect of such Securities, the Transferor does hereby certify that the interests in the Book-Entry Interest are being transferred pursuant to and in accordance with Rule 144A under the Securities Act of 1933, and, accordingly, the Transferor does hereby further certify that the interests in the Book-Entry Interest are being transferred to a Person that the Transferor reasonably believes is purchasing the Securities for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a "qualified institutional buyer" within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the underwriters and initial purchasers of the Securities being transferred.
[Insert Name of Transferor]
Title:
cc: CE Electric UK Funding Company
(b) Except as otherwise specified as contemplated by Section 301 for Securities of any series, whenever any certification is to be given by a Holder of a Security pursuant to Section 308(a)(ii) of this Indenture in connection with the transfer or exchange of a definitive Restricted Security, such certification shall be provided substantially in the form of the following certificate (which may be attached to or set forth on the Security), including or omitting bracketed language as appropriate, but otherwise with only such changes as may be approved in writing by the Company:
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES
THAT ARE RESTRICTED SECURITIES
(Transfers Pursuant to ss.308(a)(ii)
of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York, New York 10286
Re: CE Electric UK Funding Company % Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15, 1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent and Banque Internationale a Luxembourg S.A., as Paying Agent and Transfer Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to US $ principal amount of Securities presented or surrendered on the date hereof (the "Surrendered Securities") which are registered in the name of [insert name of transferor] (the "Transferor"). The Transferor has requested a transfer of such Surrendered Securities registered in the name of a Person (the "Transferee") other than the Transferor (each such transaction being referred to herein as a "transfer").
In connection with such request and in respect of such Surrendered Securities, the Transferor does hereby certify that:
[CHECK ONE]
o (1) the Surrendered Securities are being transferred to the Company or an Affiliate thereof;
o (2) the Surrendered Securities are being transferred pursuant to and in accordance with Rule 144A under the Securities Act of 1933 (the "Securities Act") and, accordingly, the Transferor does hereby further certify that the Surrendered Securities are being transferred to a Person that the Transferor reasonably believes is purchasing the Surrendered Securities for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a "qualified institutional buyer" within the meaning of Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States; or
o (3) the Surrendered Securities are being transferred pursuant to and in accordance with Regulation S and:
(A) the offer of the Surrendered Securities was not made to a Person in the United States;
(B) either:
(i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any Person acting on its behalf reasonably believed that the transferee was outside the United States, or
(ii) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;
(C) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; or
o (4) the Surrendered Securities are being transferred in a trans- action permitted by Rule 144.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the underwriters and initial purchasers of the Securities being transferred.
[Insert Name of Transferor]
Title:
cc: CE Electric UK Funding Company
Signature Guaranty:_____________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Security Exchange Agent/Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Security Exchange Agent/Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
(c) Except as otherwise specified as contemplated by Section 301 for Securities of any series, whenever any certification is to be given by a beneficial owner of a Book-Entry Interest in a Rule 144A Global Security pursuant to Section 309(e)(i) of this Indenture in connection with the transfer of a beneficial interest therein to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Book-Entry Interest in a Regulation S Global Security, such certification shall be provided substantially in the form of the following certificate (which may be attached to or set forth on the Security), with only such changes as shall be approved in writing by the Company.
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY TO REGULATION S GLOBAL SECURITY
(Transfers pursuant to ss. 309(e)(i)
of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York New York 10286
Re: CE Electric UK Funding Company % Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15, 1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent and Banque Internationale a Luxembourg, S.A., as Paying Agent and Transfer Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to US$ principal amount of Securities which are evidenced by one or more Rule 144A Global Securities (CUSIP No. ) and held through DTC in the name of [insert name of transferor] (the "Transferor"). The Transferor has requested a transfer of such beneficial interest in the Securities to a non-US Person who will take delivery thereof in the form of an equal principal amount of Securities evidenced by one or more Regulation S Global Securities (CUSIP No. ), which amount, immediately after such transfer, is to be held with DTC through Euroclear or Cedel or both (Common Code ).
In connection with such request and in respect of such Securities, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with Rule 903 or Rule 904 under the United States Securities Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor does hereby further certify that:
(1) the offer of the Securities was not made to a person in the United States;
(2) either:
(A) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any Person acting on its behalf reasonably believed that the transferee was outside the United States, or
(B) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any Person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being transferred as described above is to be held with DTC through Euroclear or Cedel or both (Common Code ).
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the underwriters or initial purchasers, if any, of the initial offering of such Securities being transferred. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated: , 199_
----------
cc: CE Electric UK Funding Company
|
Signature Guaranty:____________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Security Exchange Agent/Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Security Exchange Agent/Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
(d) Except as otherwise specified as contemplated by Section 301 for Securities of any series, whenever any certification is to be given by a beneficial owner of a Book-Entry Interest in a Rule 144A Global Security pursuant to Section 309(e)(ii) of this Indenture in connection with the transfer of a beneficial interest in the Rule 144A Global Security to a Person who wishes to take delivery thereof in the form of a beneficial interest in an Unrestricted Global Security, such certification shall be provided substantially in the form of the following certificate, with only such changes as shall be approved in writing by the Company.
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A GLOBAL
SECURITY TO UNRESTRICTED GLOBAL SECURITY
(Transfers pursuant to ss. 309(e)(ii)
of the Indenture)
The Bank of New York,
as Trustee
101 Barclay Street
New York New York 10286
Re: CE Electric UK Funding Company % Due (the "Securities")
Reference is hereby made to the Indenture, dated as of December 15, 1997 (the "Indenture"), among CE Electric UK Funding Company, The Bank of New York, as Trustee, Principal Paying Agent, Security Exchange Agent/Registrar and Transfer Agent and Banque Internationale a Luxembourg, S.A., as Paying Agent and Transfer Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to US$ principal amount of Securities which are evidenced by one or more Rule 144A Global Securities (CUSIP No. ) and held through DTC in the name of [insert name of transferor] (the "Transferor"). The Transferor has requested a transfer of such beneficial interest in the Securities to a Person who will take delivery thereof in the form of an equal principal amount of Securities evidenced by one or more Unrestricted Global Securities (CUSIP No. ).
In connection with such request and in respect of such Securities, the Transferor does hereby certify that such transfer has been effected pursuant to and in accordance with either Rule 903, Rule 904 or Rule 144 under the United States Securities Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule 904:
(A) the offer of the Securities was not made to a Person in the United States;
(B) either:
(i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any Person acting on its behalf reasonably believed that the transferee was outside the United States, or
(ii) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any Person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States;
(C) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; or
(2) if the transfer has been effected pursuant to Rule 144, the Securities have been transferred in a transaction permitted by Rule 144.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the underwriters and initial purchasers, if any, of the Securities being transferred. Terms used in this certificate and not otherwise defined in the Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
Title:
cc: CE Electric UK Funding Company
316. CUSIP and ISIN Numbers.
The Company in issuing the Securities may use "CUSIP" numbers or "ISIN" numbers (in either case, if then generally in use), and, if so, the Trustee shall use "CUSIP" or "ISIN" numbers, as applicable, in notices of redemption as a convenience to Holders; provided that the Trustee shall assume no responsibility for the accuracy of such numbers and any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
401. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and any rights to receive payments of any principal, premium or interest in respect thereof as provided in Section 1001), and the Trustee shall execute instruments in form and substance satisfactory to itself and to the Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 310 and
(ii) Securities for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 402, and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount of (a) money or (b) US Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms
will provide not later than one day before the Stated Maturity
or Redemption Date, as the case may be, money, or (c) a
combination of money and such US Government Obligations, in
each case, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal, premium, if any,
and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid, caused to be paid or made provision satisfactory to the Trustee for payment of all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an opinion of independent counsel of recognized standing, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
following rights and obligations shall survive: (i) the obligations of the
Company to the Trustee under Section 607(3), (ii) the obligations of the Trustee
to any Authenticating Agent under Section 614, (iii) if money or US Government
Obligations shall have been deposited with or received by the Trustee pursuant
to Section 401(1)(B) or Section 402, the obligations of the Trustee under
Section 403 and the last paragraph of Section 1003, (iv) any rights of
registration of transfer, exchange or replacement of Securities provided in
Article Three and Sections 906, 1002 and 1107, and (v) any rights to Additional
Amounts pursuant to Section 1009.
402. Defeasance, Discharge and Covenant Defeasance
(a) Defeasance and Discharge of a Series of Securities. The
Company shall be deemed to have been discharged from its obligations with
respect to Outstanding Securities of any series, as provided in this Section
402(a) on and after the date the applicable conditions set forth in subsection
(c) hereof are satisfied (hereinafter called "Defeasance") with respect to such
Securities. For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness representing the
Outstanding Securities of such series and to have satisfied all of its other
respective obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of Securities of such series
to receive, solely from the trust fund described in Section 403 and as more
fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(ii) the Company's obligations with respect to the Securities of such series
under Article Three and Sections 1002, 1003 and 1009 (to the extent then known),
(iii) the rights (including without limitation, the rights set forth in Section
607), powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Article. Subject to compliance with this Article, the Company may defease
any Securities pursuant to this Section notwithstanding the prior Covenant
Defeasance of such Series pursuant to subsection (b) hereof.
(b) Covenant Defeasance. On and after the date the applicable
conditions set forth in subsection (c) hereof are satisfied (hereinafter called
"Covenant Defeasance") with respect to the Outstanding Securities of any series,
(i) the Company shall be released from its obligations under Sections 801, 1004
and 1005, and any covenants established as contemplated by Section 301 or
adopted by indenture supplemental hereto under Section 901(2) for the benefit of
the Holders of such Securities and (ii) the occurrence of any event specified in
Sections 501(3) and 501(4) or pursuant to Section 501(7) with respect to any
obligations referred to in Clause (i) shall be deemed not to be or result in an
Event of Default, in each case with respect to the Outstanding Securities of
such series as provided in this Section. For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
(c) Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to the Defeasance or the Covenant Defeasance pursuant to this Section 402 of the Outstanding Securities of any series:
(1) The Company shall elect by Board Resolution to effect a Defeasance or a Covenant Defeasance pursuant to this Section 402 with respect to the Outstanding Securities of any series specified in such Board Resolution;
(2) The Company shall irrevocably have deposited or caused to
be deposited (except as provided in Section 607, Section
403(c) and the last paragraph of Section 1003) with the
Trustee (specifying that each such deposit is pursuant to this
Section 402) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the
Outstanding Securities of such series, (a) money, or (b) US
Government Obligations which through the payment of principal
and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment, money, or (c) a combination thereof, in each case
in an amount sufficient, in the opinion of a nationally
recognized firm of independent accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to
pay and discharge, the principal of and any premium and
interest (Additional Amounts then known) on the Securities of
such series on the respective Stated Maturities (or if the
Company has designated a Redemption Date pursuant to the next
sentence of this clause (2), to and including the Redemption
Date so designated by the Company), in accordance with the
terms of this Indenture and the Securities of such series. If
the Company shall wish to deposit or cause to be deposited
money or US Government Obligations to pay or discharge the
principal of (and premium, if any) and interest, if any, on
the outstanding Securities of such series to and including a
Redemption Date on which all of the outstanding Securities of
such series are to be redeemed, such Redemption Date shall be
irrevocably designated by a Board Resolution delivered to the
Trustee on or prior to the date of deposit of such money or US
Government Obligations, and such Board Resolution shall be
accompanied by an irrevocable Company Request that the Trustee
give notice of such redemption in the name and at the expense
of the Company not less than 30 nor more than 60 days prior to
such Redemption Date in accordance with this Indenture;
(3) In the event of a Defeasance pursuant to Section 402(a), the Company shall have delivered to the Trustee an opinion of independent counsel of recognized standing stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this instrument, there has been a change in the applicable US federal income tax law, in either case (x) or (y) to the effect that, and based thereon such opinion shall confirm that, the Holders and any beneficial owners of the Book-Entry Interests in Outstanding Securities of such series will not recognize income, gain or loss for US federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Outstanding Securities of such series and will be subject to US federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur;
(4) In the event of a Covenant Defeasance pursuant to Section
402(b), the Company shall have delivered to the Trustee an
opinion of independent counsel of recognized standing to the
effect that the Holders and any beneficial owners of the
Book-Entry Interests in Outstanding Securities of such series
will not recognize income, gain or loss for US federal income
tax purposes as a result of the deposit with and Covenant
Defeasance to be effected with respect to the Outstanding
Securities of such series and will be subject to US federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Covenant
Defeasance and discharge were not to occur;
(5) The Company shall have delivered to the Trustee an opinion of independent counsel of recognized standing in England stating that the Trustee has a valid security interest over such deposit;
(6) The Securities of such series, if then listed on any securities exchange, will not be delisted as a result of such deposit;
(7) No event which is, or after notice or lapse of time or both would become, an Event of Default (including by reason of such deposit) with respect to the Outstanding Securities of such series shall have occurred and be continuing at the time of such deposit;
(8) If the Trust Indenture Act shall be applicable to the Securities of such series, such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act);
(9) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound; and
(10) The Company shall have delivered to the Trustee an Officers' Certificate, stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
403. Application of Trust Money
(a) Subject to the provisions of the last paragraph of Section 1003, all money or US Government Obligations deposited with the Trustee pursuant to Sections 401 or 402 and all money received by the Trustee in respect of US Government Obligations deposited with the Trustee pursuant to Sections 401 or 402, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal of (and premium, if any) and interest, if any, on the Securities for whose payment such money has been deposited with or received by the Trustee.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Trustee or the trust created hereby with respect to US Government Obligations deposited pursuant to Sections 401 or 402 or the interest and principal received in respect thereof other than any such tax, fee or other charge which by law is payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any monies or US Government Obligations held by it as provided in Sections 401 or 402 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which, at the time of such certification, would have been required to be deposited to effect the discharge of the Indenture or of any series of Securities, or the Defeasance or Covenant Defeasance of the Securities of any series, as the case may be. This paragraph (c) shall not authorize the sale by the Trustee of any US Government Obligations held under this Indenture.
404. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 401 or 402 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 403 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in Trust.
ARTICLE V
REMEDIES
501. Events of Default
"Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events:
(1) default in the payment of any interest or any Additional Amounts upon any Security of that series when it becomes due and payable and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity and the continuance of such default for a period of 3 days; or
(3) default in the payment of any sinking fund installment, when and as due by the terms of a Security of that series; or
(4) material default in the performance, or breach, of any other material covenant or obligation of the Company in this Indenture (other than a covenant a default in whose performance or whose breach is elsewhere in this Section 501 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series of Securities other than that series) and continuance of such material default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) default in the payment of the principal of any bond, debenture, note or other evidence of indebtedness, in each case for money borrowed by the Company or any Significant Subsidiary, or in the payment of principal under any mortgage, indenture (including this Indenture) or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for Money Borrowed by the Company or any Significant Subsidiary, if such Indebtedness for Borrowed Money is not Project Finance Indebtedness and provides for recourse generally to the Company which default for payment of principal is in an aggregate principal amount exceeding the greater of $50,000,000 or 4% of Capital and Reserves (or its equivalent in any other currency or currencies) when such indebtedness becomes due and payable (whether at maturity, upon redemption or acceleration or otherwise), if such default shall continue unremedied or unwaived for more than 30 Business Days and the time for payment of such amount has not been expressly extended; provided, however, that, subject to the provisions of Sections 601 and 602, the Trustee shall not be deemed to have knowledge of such default unless either (a) a Responsible Officer of the Trustee shall have actual knowledge of such default or (b) the Trustee shall have received written notice thereof from the Company, from any Holder, from the holder of any such indebtedness or from the trustee under any such mortgage, indenture or other instrument; and provided further, that if such default under such indenture or instrument shall be remedied or cured by the Company or such Significant Subsidiary or waived by the holders of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been remedied, cured or waived without further action upon the part of the Trustee or any of the Holders; or
(6) The failure of the Company or a Significant Subsidiary generally to pay its debts as they become due, or the admission in writing of its inability to pay its debts generally, or the making of a general assignment for the benefit of its creditors, or the institution of any proceeding by or against the Company or a Significant Subsidiary (other than any such proceeding brought against the Company or a Significant Subsidiary that is dismissed within 180 days from the commencement thereof) seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition (in each case, other than a solvent liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition) of it or its debts under any law relating to bankruptcy, insolvency, reorganization, moratorium or relief of debtors, or seeking the entry of an order for relief or appointment of an administrator, receiver, trustee, intervenor or other similar official for it or for any substantial part of its property, or the taking of any action by the Company or a Significant Subsidiary to authorize any of the actions set forth in this subparagraph (6); or
(7) any other Event of Default provided in the supplemental indenture or provided in or pursuant to the Board Resolution under which such series of Securities is issued or in the form of Security for such series.
502. Acceleration of Maturity; Rescission and Annulment
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then either the Trustee or (a) in the case of an Event of Default described under subparagraph (1) or (2) of Section 501 above, the Holders of at least 33% in aggregate principal amount of the Outstanding Securities of that series, or (b) in the case of any other Event of Default, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series, may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof), and any interest accrued thereon, of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such declaration of acceleration with respect to Securities of any series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as hereinafter in this Article provided, if all Events of Default with respect to Securities of that series have been cured or waived (other than the non-payment of principal of the Securities which has become due solely by reason of such declaration of acceleration), then, and in every such case, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series may, by written notice to the Company and the Trustee, rescind and annul such declaration and its consequences on behalf of all of the Holders, but no such rescission or annulment shall affect any subsequent default or impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
503. Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if
(1) default is made in the payment of any interest on any Security of a series when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on any Security of a series at the Stated Maturity thereof and such default continues for a period of 3 days,
the Company will, upon written demand of the Trustee, pay to it, for the benefit of the Holders of such Securities of such series, the whole amount then due and payable on such Securities of such series for principal (and premium, if any) and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and any overdue interest, at the rate or rates prescribed therefor in such Securities of such series, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If any Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights.
504. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation (other than a solvent liquidation), bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
505. Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
506. Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be applied in the following order with respect to the Securities of any series, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: In case the principal and premium, if any, of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities of such a series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee and to the extent permitted by law) upon the overdue installments of interest at the rate prescribed therefor in such Securities, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and premium, if any, and interest, if any, with interest upon the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee and to the extent permitted by law) upon overdue installments of interest at the rate prescribed therefor in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and any premium and interest, without preference or priority of principal over interest, or of interest over principal or premium, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and any premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
507. Limitation on Suits
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) (a) in the case of an Event of Default described under subparagraph
(1) or (2) of Section 501 above, the Holders of at least 33% in
aggregate principal amount of the Outstanding Securities of that
series, or (b) in the case of any other Event of Default, the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of that series, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 90-day period by the Holders of a majority in principal amount of the outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
508. Unconditional Right of Holders to Receive Principal, Premium and Interest
Subject to Section 507, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 311) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Company, the Trustee and the Holders shall continue as though no such proceeding had been instituted.
510. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient by the Trustee or by the Holders, as the case may be.
512. Control by Holders
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) the action so directed would not be prejudicial to Holders of any other series of Outstanding Securities not taking part in such action; provided, further, that the Trustee shall be under no obligation to determine whether any such direction shall be so prejudicial.
513. Waiver of Past Defaults
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
514. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant in such suit, but the provisions of this Section 514 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest, if any, on any Security on or after the Stated Maturity or Maturities expressed in such Security.
ARTICLE VI
THE TRUSTEE
601. Certain Duties and Responsibilities
(a) Except during the continuance of a default with respect to the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the same to determine whether or not they conform to the requirements of this Indenture.
(b) In case a default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless the Trustee was negligent in ascertaining the pertinent facts;
(3) no provision of this Indenture shall require the Trustee to spend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if repayment of such funds or adequate indemnity against such risk or liability satisfactory to the Trustee has not been assured to it; and
(4) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct of, or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 601.
602. Notice of Defaults
Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or a Responsible Officer of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 602, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order or as otherwise expressly provided herein and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend or risk its own funds or to exercise, at the request or direction of any of the Holders, any of the rights or powers vested in it by this Indenture pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable prior request and during normal business hours to examine the books, records and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and shall not be liable for the actions or omissions of such agents appointed by it with due care.
604. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent nor any party hereto (other than the Company) assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent nor any party hereto (other than the Company) shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security Exchange Agent/Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Exchange Agent/Registrar or such other agent.
606. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
607. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time such compensation as is agreed upon in writing, which compensation shall not be limited by any provision of law regarding compensation of the trustee of an express trust;
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel, which compensation, expenses and disbursements shall be set forth in sufficient written detail to the satisfaction of the Company), except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith; and
(3) to indemnify each of the Trustee, its officers, directors and employees for, and to hold it harmless against, any loss, liability or expense incurred without negligence, bad faith, or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. Obligations under this Section 607(3) will survive the satisfaction and discharge of this Indenture pursuant to Section 401 hereof.
608. Disqualification; Conflicting Interests
If the Trust Indenture Act shall be applicable to a series of Securities issued hereunder and the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, then the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
609. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be eligible to act as trustee under the Trust Indenture Act and which shall have a combined capital and surplus of at least $50,000,000. If the Trustee does not have an office in The City of New York, the Trustee may appoint an agent in The City of New York reasonably acceptable to the Company to conduct any activities which the Trustee may be required under this Indenture to conduct in The City of New York. If the Trustee does not have an office in The City of New York or has not appointed an agent in The City of New York, the Trustee shall be a Participant in DTC and in the FAST distribution systems. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a United States federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 609, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 609, the Trustee shall resign immediately in the manner and with the effect hereinafter specified in this Article.
610. Resignation and Removal; Appointment of Successor Trustee
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series, subject to Section 609.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days of such
removal, the Trustee subject to such removal may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series, subject to Section 609.
(d) If at any time:
(1) the Trustee shall fail to comply with section 310(b) of the Trust Indenture Act pursuant to Section 608, with respect to any series of Securities to which the Trust Indenture Act may be applicable, after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
~herefore by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by giving notice in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
611. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
612. Merger, Conversion, Consolidation or Succession to Business Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
613. Preferential Collecting of Claims Against Company
(a) Subject to subsection (b) of this Section 613, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to a default, as defined in subsection (c) of this Section 613, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the Holders of the Securities and the holders of other indenture securities, as defined in subsection (c) of this Section 613:
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest effected after the beginning of such three months' period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this subsection (a), or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been applied by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such three months' period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i)
payments made on account of any such claim by any
Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale
of any such claim by the Trustee to a third Person,
and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such three months' period;
(C) to realize, for its own account, but
only to extent of the claim hereinafter mentioned,
upon any property held by it as security for any such
claim, if such claim was created after the beginning
of such three months' period and such property was
received as security therefor simultaneously with the
creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property
was so received the Trustee had no reasonable cause
to believe that a default, as defined in subsection
(c) of this Section 613, would occur within three
months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C) of this Section 613, against the release of any property held as security for such claim as provided in paragraph (B) or (C), as the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D) of this Section 613, property substituted after the beginning of such three months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any preexisting claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account for the funds and property held in such special account, the proceeds thereof shall be apportioned among the Trustee, the Holders and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the United Kingdom, as applicable, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee and the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the United Kingdom, as applicable, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the United Kingdom, as applicable, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim.
Any Trustee which has resigned or been removed after the beginning of such three months' period shall be subject to the provisions of this Section 613 as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three months' period, it shall be subject to the provisions of this Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would have given rise to the obligation to account, if such Trustee had continued as Trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advances and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depository, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction, as defined in subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in subsection (c) of this
Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make payment in full of the principal of or interest on any of the Securities or upon the other indenture securities when and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor (as defined in
the Trust Indenture Act) outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of
this Section 613, and (iii) under which a default exists at
the time of the apportionment of the funds and property held
in such special account;
(3) the term "cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Code or Title 11 of the United States Code.
614. Authenticating Agents
From time to time the Trustee, with the prior written approval of the Company, may appoint one or more Authenticating Agents with respect to one or more series of Securities with power to act on the Trustee's behalf and subject to its direction in the authentication and delivery of Securities of such series issued upon original issuance and upon exchange, registration of transfer or partial redemption thereof or in connection with transfers and exchanges under Sections 305, 306, 310 and ll07 as fully to all intents and purposes as though the Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities by an Authenticating Agent pursuant to this Section 614 shall be deemed to be authentication and delivery of such Securities "by the Trustee". Each such Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 614 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be merged or with which it may be consolidated, or any corporation resulting from, any merger or consolidation or to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of the Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section 614, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.
An Authenticating Agent may resign at any time by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section 614, the Trustee may appoint a successor Authenticating Agent with the prior written approval of the Company and shall mail notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as the names and addresses of such Holders appear on the Security Register. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614 as may be agreed in a separate writing among the Company, the Trustee and such Authenticating Agent, and the Trustee shall be entitled to be reimbursed for such payments pursuant to Section 607.
If an appointment with respect to one or more series of Securities is made pursuant to this Section 614, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to in the within mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
[NAME OF AUTHENTICATING
AGENT],
as Authenticating Agent
Dated:__________ By: __________________________________
Authorized Signatory
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
701. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee with respect to the Registered Securities of each series
(a) semi-annually, not later than 15 days after each Regular Record Date, or, in the case of any series of Registered Securities on which semi-annual interest is not payable, not more than 15 days after such semi-annual dates as may be specified by the Trustee, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date or semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Exchange Agent/Registrar for any series of Registered Securities, no such list shall be required to be furnished with respect to any such series.
702. Preservation of Information; Communications to Holders
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Exchange Agent/Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 702(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable, by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
703. Reports by Trustee
(a) Within 60 days after the initial Regular Record Date of each calendar year, commencing in 1998, the Trustee shall transmit by mail to all Holders of Securities a brief report dated as of such date, of such year with respect to any of the following events which may have occurred within the previous 12 months (but if no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 609 and its qualifications under Section 608;
(2) the creation of or any material change to a relationship specified in Section 608;
(3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than one-half of one percent of the principal amount of the Securities outstanding on the date of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the Trustee in
its individual capacity, on the date of such report, with a
brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Sections
613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Securities, except action in respect of a default, notice of which has been or is to be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of Securities a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to subsection (a) of this Section 703 (or if no such report has yet been so transmitted, since the date of execution of this instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on property or funds held or collected by it as Trustee and which it has not previously reported pursuant to this Subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of the securities outstanding at such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each US stock exchange upon which any Securities are listed and with the Company. The Company will notify the Trustee when any Securities are listed on any US stock exchange.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
801. Company May Consolidate, Etc., Only on Certain Terms
Nothing contained in this Indenture shall prevent the Company from
consolidating with or merging into another corporation or conveying,
transferring or leasing its properties and assets substantially as an entirety
to any person, provided that (a) the successor entity expressly assumes, by an
amendment to the Indenture and the Securities of each series then Outstanding,
all of the Company's obligations under the Indenture and on the Securities and
(b) immediately after giving effect to such transaction no Event of Default and
no event which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing.
In the event that any such successor entity is organized under the laws
of a country located outside of the United Kingdom and withholding or deduction
is required by law for or on account of any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within such country in which the successor
entity is organized or by or within any political subdivision thereof or any
authority therein or thereof having power to tax, the successor entity shall pay
to the relevant Holder of the Global Securities or to the relevant Holders of
the definitive Registered Securities, as the case may be, such additional
amounts, under the same circumstances and subject to the same limitations as are
specified for "United Kingdom Taxes," as is set forth under Section 1009 herein,
but substituting for the United Kingdom in each place the name of the country
under the laws of which such successor entity is organized. In addition such
successor entity shall be entitled to effect optional tax redemptions under the
same circumstances and subject to the same limitations as are set forth under
Section 1108 herein, but substituting for the United Kingdom in each place the
name of the country under the laws of which such successor entity is organized.
802. Successor Corporation to be Substituted
Upon any consolidation by the Company with or merger by the Company into any other corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
901. Supplemental Indenture without Consent of Holders
Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series);
(4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to facilitate the issuance of Securities in uncertificated form, or to permit or facilitate the issuance of extendible Securities;
(5) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only as to the Securities of any series created by such supplemental indenture and Securities of any series subsequently created to which such change or elimination is made applicable by the subsequent supplemental indenture creating such series;
(6) to secure the Securities pursuant to the requirements of Section 1004 or otherwise;
(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301;
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b);
(9) to provide for any rights of the Holders of Securities of any series to require the repurchase of Securities of such series by the Company;
(10) to modify the restrictive legends set forth on the face of the
form of Security in Section 202 or as are otherwise set forth pursuant
to Section 201 and 301, or modify the form of certificate set forth in
Section 311; provided, however, that any such modification shall not
materially and adversely affect the interest of the Holders of the
Securities; or
(11) to amend this Indenture to conform to the provisions of the Trust Indenture Act as in effect at the time of the execution of such supplemental indenture; or
(12) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not materially and adversely affect the interests of the Holders of Securities of any series; or
(13) to modify, alter, amend or supplement this Indenture in any other respect which is not materially adverse to Holders, which does not involve a change described in clauses (1), (2) or (3) of Section 902 hereof and which, in the judgment of the Trustee, is not to the prejudice of the Trustee, or in order to provide for the duties, responsibilities and compensation of the Trustee as a transfer agent in the event one registered Security of any series is issued in the aggregate principal amount of all outstanding Securities of such series in which Holders will hold an interest.
902. Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of all series affected by such supplemental indenture (voting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon, or change any obligation of the Company to pay Additional Amounts, if any, or reduce any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section 902, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
902, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
903. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
904. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
905. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall, if so required by the Trust Indenture Act, conform to the requirements of the Trust Indenture Act as then in effect.
906. Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
1001. Payment of Principal, Premium, if any, and Interest
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. An installment of principal of or interest on the Securities of a series shall be considered paid on the date it is due if the Trustee or Paying Agent holds at 11:00 a.m. New York City Time on that date money deposited by the Company in immediately available funds and designated for, and sufficient to pay, the installment in full.
Neither the Company nor any agent of the Company (including but not limited to the Paying Agent) will have any responsibility or liability for any aspect relating to payments made or to be made by the Book-Entry Depositary to DTC in respect of the Global Securities of a series or the Book-Entry Interests therein, subject only to limited indemnification rights of the Book-Entry Depository set forth in the Deposit Agreement. None of the Company, the Trustee, the Paying Agent, the Book-Entry Depositary or any agent of any of the foregoing will have any responsibility or liability for any aspect relating to payments made or to be made by DTC on account of a Participant's or Indirect Participant's ownership of a beneficial interest in a Book-Entry Interest or for maintaining, supervising or reviewing any records relating to a Participant's interests in the Book-Entry Interest.
1002. Maintenance of Office or Agency
The Company will maintain (i) in the Borough of Manhattan, The City of New York, an office or agency where Securities of any series may be presented or surrendered for payment, and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served and if definitive Registered Securities have been issued, an office or agency of a Security Exchange Agent/Registrar and Transfer Agent in such Place of Payment where Securities may be surrendered for registration of transfer or exchange, and (ii) an office or agency of a Paying Agent where the Securities may be paid and if Definitive Registered Securities have been issued, an office or agency of a Security Exchange Agent/Registrar and Transfer Agent in such Place of Payment where Securities may be surrendered for registration of transfer or exchange, in Luxembourg so long as the Securities are listed on the Luxembourg Stock Exchange and the rules of such exchange so require. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of that series may be presented at the place specified for that purpose pursuant to Section 301, and the Company hereby appoints the Paying Agent as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Securities of one or more series and any appurtenant coupons may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for any series of Securities for such purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such other office or agency. The Company will at all times maintain at least one Paying Agent which is located outside the United Kingdom for each series of Securities.
1003. Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, no later than 10:00 a.m. New York City Time, on each due date of the principal of (and premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum in immediately available funds sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the Pewns entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by the Company or by any Paying Agent to the Trustee, the Company or such Paying Agent, as the case may be, shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
1004. Limitation on Liens
If this covenant shall be made applicable to the Securities of a particular series, neither the Company nor any Significant Subsidiary shall issue, assume or guarantee any Indebtedness secured by a Lien upon any property or assets (other than cash or cash equivalents) of the Company or any such Significant Subsidiary, as applicable, without effectively providing that the Outstanding Securities (together with, if the Company so determines, any other indebtedness or obligation then existing or thereafter created ranking equally with such Securities) shall be secured equally and ratably with (or prior to) such Indebtedness so long as such Indebtedness shall be so secured. The foregoing restriction on Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of such Securities;
(b) any Lien created or arising over any property which is acquired, constructed or created by the Company or any of its Significant Subsidiaries, but only if (a) such Lien secures only principal amounts (not exceeding the cost of such acquisition, construction or creation) raised for the purposes of such acquisition, construction or creation, together with any costs, expenses, interest and fees incurred in relation thereto or a guarantee given in respect thereof, (B) such Lien is created or arises on or before 180 days after the completion of such acquisition, construction or creation and (C) such Lien is confined solely to the property so acquired, constructed or created;
(c) any Lien securing amounts not more than 180 days overdue or otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit balances in connection with the operation of cash management programs established for the benefit of the Company and/or a Significant Subsidiary or in connection with the issuance of letters of credit for the benefit of the Company and/or a Significant Subsidiary; (ii) any Lien securing indebtedness of the Company and/or a Significant Subsidiary incurred in connection with the financing of accounts receivable; (iii) any Lien incurred or deposits made in the ordinary course of business, including, but not limited to, (a) any mechanics', materialmen's, carriers', workmen's, vendors' or other like Liens and (B) any Liens securing amounts in connection with workers' compensation, unemployment insurance and other types of social security; (iv) any Lien upon specific items of inventory or other goods and proceeds of the Company and/or a Significant Subsidiary securing obligations of the Company and/or a Significant Subsidiary in respect of bankers' acceptances issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods; (v) any Lien incurred or deposits made securing the performance of tenders, bids, leases, trade contracts
(other than for borrowed money), statutory obligations, surety bonds,
appeal bonds, government contracts, performance bonds, return-of-money
bonds, letters of credit not securing borrowings and other obligations
of like nature incurred in the ordinary course of business; (vi) any
Lien created by the Company or a Significant Subsidiary under or in
connection with or arising out of any pooling and settlement agreements
or pooling and settlement arrangements of the electricity industry,
including without limitation the Pooling and Settlement Agreement dated
March 30, 1990, as amended, modified or supplemented from time to time,
or any transactions or arrangements entered into in connection with
hedging or management of risks relating to the electricity industry;
(vii) any Lien constituted by a right of set off or right over a margin
call account or any form of cash or cash collateral or any similar
arrangement for obligations incurred in respect of Currency or Interest
Rate Agreements; (viii) any Lien arising out of title retention or like
provisions in connection with the purchase of goods and equipment in
the ordinary course of business; (ix) any Lien securing reimbursement
obligations under letters of credit, guaranties and other forms of
credit enhancement given in connection with the purchase of goods and
equipment in the ordinary course of business; and (x) any Lien securing
obligations under Currency or Interest Rate Agreements;
(e) Liens in favor of the Company or a Subsidiary;
(f) (i) Liens on any property or assets acquired from a corporation which is merged with or into the Company or a Significant Subsidiary, or any Liens on the property or assets of any corporation or other entity existing at the time such corporation or other entity becomes a Subsidiary of the Company and, in either such case, is not created in anticipation of any such transaction (unless such Lien is created to secure or provide for the payment of any part of the purchase price of such corporation); (ii) any Lien on any property or assets existing at the time of acquisition thereof and which is not created in anticipation of such acquisition (unless such Lien was created to secure or provide for the payment of any part of the purchase price of such property or assets); and (iii) any Lien created or outstanding on or over any asset of any company which becomes a Significant Subsidiary on or after the date of the issuance of such Securities where such Lien is created prior to the date on which such company becomes a Significant Subsidiary;
(g) (i) Liens required by any contract or statute in order to permit the Company or a Significant Subsidiary to perform any contract or subcontract made by it with or at the request of a governmenta1 entity or any department, agency or instrumentality thereof, or to secure partial, progress, advance or any other payments by the Company or a Significant Subsidiary to such governmental unit pursuant to the provisions of any contract or statute; (ii) any Lien securing industrial revenue, development or similar bonds issued by or for the benefit of the Company or a Significant Subsidiary, provided that such industrial revenue, development or similar bonds are nonrecourse to the Company and/or such Significant Subsidiary; and (iii) any Lien securing taxes or assessments or other applicable governmental charges or levies;
(h) (i) any Lien which arises pursuant to any order of attachment, distraint or similar legal process arising in connection with court proceedings and any Lien which secures the reimbursement obligation for any bond obtained in connection with an appeal taken in any court proceeding, so long as the execution or other enforcement of such Lien arising pursuant to such legal process is effectively stayed and the claims secured thereby are being contested in good faith and, if appropriate, by appropriate legal proceedings, or any Lien in favor of a plaintiff or defendant in any action before a court or tribunal as security for costs and/or other expenses; or (ii) any Lien arising by operation of law or by order of a court or tribunal or any Lien arising by an agreement of similar effect, including but not limited to judgment Liens;
(i) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Liens referred to in the foregoing clauses, for amounts not exceeding the principal amount of the Indebtedness secured by the Lien so extended, renewed or replaced, provided that such extension, renewal or replacement Lien is limited to all or a part of the same property or assets that were covered by the Lien extended, renewed or replaced (plus improvements on such property or assets);
(j) any Lien created in connection with Project Finance Indebtedness; and
(k) any Lien created in connection with a customary receivables securitization program.
Notwithstanding the foregoing, the Company and/or a Significant Subsidiary may create or permit to subsist Liens over any of their respective property or assets, so long as the aggregate amount of Indebtedness secured by all such Liens (excluding therefrom the amount of Indebtedness secured by Liens set forth in clauses (a) through (k), inclusive, above) does not exceed 10% of Consolidated Net Tangible Assets.
Nothing contained in this Indenture in any way restricts or prevents the Company or any Subsidiary from incurring any unsecured indebtedness.
1005. Limitation on Distributions
If this covenant shall be made applicable to the Securities of a particular series, the Company covenants and agrees that so long as any Securities of that series remain outstanding the Company shall not declare, recommend, make or pay any Distribution to any of its shareholders unless there exists no Event of Default and no such Event of Default will result from the making of such Distribution and either:
(a) at the time and as a result of such Distribution, the Company's Leverage Ratio does not exceed 0.62:1 and the Company's Interest Coverage Ratio is not less than 2.2:1; or
(b) (if the Company is not in compliance with the foregoing ratios) at such time its senior long term debt rating from the Rating Agencies is at least BBB (or its then equivalent) with S&P and DCR and Baa2 (or its then equivalent) with Moody's.
The foregoing restriction on Distributions shall no longer apply in the event that the Company obtains confirmation from each of S&P, DCR and Moody's that its long term senior debt would be rated BBB+ (or its then equivalent) in the case of S&P and DCR and Baa1 (or its then equivalent) in the case of Moody's, or better, notwithstanding the release of the Company from its obligations thereunder. If the restriction on Distributions ceases to apply by virtue of the Company obtaining the foregoing confirmation with respect to its credit ratings, the Company will be under no obligation to reinstate such restriction or otherwise observe its terms in the event such ratings are thereafter lowered or withdrawn.
In order to obtain the release of the restriction on Distributions, the Company shall deliver to the Trustee written confirmation from each Rating Agency of the ratings conditions as described in the preceding paragraph. Securities of any series which are entitled to the benefit of this Section 1005 authenticated and delivered after the release of the restriction on Distributions (or any reinstatement thereof) may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to the current applicability of such restriction.
1006. Statement by Officers as to Default
The Company will give the Trustee notice by facsimile or other written communication satisfactory to the Trustee of any Event of Default relating to the Company or of any condition or event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default relating to the Company within five (5) days after the occurrence of such Event of Default becomes known to the Company, and of the measures it is taking to remedy such Event of Default.
The Company will deliver to the Trustee within 120 days after the end of each fiscal year of the Company a certificate from a Director of the Company or, in the case of a Director which is not a natural person, from an officer or other duly authorized designee of such Director, stating that in the course of the performance by such signer of his duties as a Director of the Company (or as an officer or designee thereof) he would normally have knowledge of any default by the Company in the performance and observance of any of the covenants contained in the Indenture, stating whether or not he has knowledge of any such default without regard to any period of grace or requirement of notice and, if so, specifying each such default of which such signer has knowledge and the nature thereof.
1007. Modification or Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in this Indenture with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either modify the covenant or
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, provided that no such modification shall without
the consent of each Holder of Outstanding Securities of such series (a) change
the stated maturity upon which the principal of or the interest on the
Securities of such series is due and payable, (b) reduce the principal amount
thereof or the rate of interest thereon, (c) change any obligation of the
Company to pay Additional Amounts with respect to Securities of such series, (d)
change any place of payment or the currency in which the Securities of such
series or any premium or the interest thereon is payable, (e) impair the right
to institute suit for the enforcement of any such payment on or after the stated
maturity thereof (or, in the case of redemption, on or after Redemption Date) or
(f) reduce the percentage in principal amount of the outstanding Securities of
such series, the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture. The Securities
owned by the Company or any of its Subsidiaries shall be deemed not to be
Outstanding for, among other purposes, consenting to any such modification.
1008. Further Assurances
The Company and the Trustee shall execute and deliver all such other documents, instruments and agreements and do all such other acts and things as may be reasonably required to enable the Trustee to exercise and enforce its rights under this Indenture and under the documents, instruments and agreements required under this Indenture and to carry out the intent of this Indenture.
1009. Payment of Additional Amounts
If the Securities of a particular series provide for payment of Additional Amounts, all payments of principal and interest (including payments of discount and premium, if any) in respect of the Securities of such series shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within the United Kingdom or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("United Kingdom Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction, the Company shall pay to the relevant Holders such additional amounts ("Additional Amounts") as will result in the payment to such Holders of the amount that would otherwise have been receivable by such Holders in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such United Kingdom Taxes in respect of Securities by reason of such Holder (or a fiduciary, settlor, beneficiary, member or shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some connection with the United Kingdom (including but not limited to being a citizen or resident or national or domiciliary of, or carrying on a trade or business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than the mere holding of a Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that such Holder would have been entitled to such Additional Amounts on presenting such Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority or who fails to comply with any other certification, filing, identification, information or other reporting requirements if such is a precondition to exemption from, or the reduction in the rate of, deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal property taxes or any similar taxes, duties, assessments or other governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of any definitive Registered Security issued pursuant to an Optional Definitive Security Request.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (f) above. If the Company shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
Reference to principal, interest, discount or premium in respect of the Securities shall be deemed also to refer to any Additional Amounts which may be payable as set forth in this Indenture or in the Securities.
At least 10 Business Days prior to the first Interest Payment Date (and at least 10 Business Days prior to each succeeding Interest Payment Date if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate) the Company will furnish to the Trustee and the Paying Agents an Officers' Certificate instructing the Trustee and the Paying Agents whether payments of principal of or interest on the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any United Kingdom Taxes. If any such deduction or withholding
shall be required, prior to such Interest Payment Date the Company will furnish the Trustee and the Paying Agents with an Officers' Certificate which specifies the amount, if any, required to be withheld on such payment to Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, and to hold the Trustee harmless against, any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on the Trustee's part, arising out of or in connection with actions taken or omitted by the Trustee in reliance on any Officers' Certificate furnished pursuant to this paragraph. Any Officers' Certificate required by this Section 1009 to be provided to the Trustee and any Paying Agent shall be deemed to be duly provided if telecopied to the Trustee and such Paying Agent.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be made available to the Holders of the Securities upon request.
1010. Copies Available to Holders
Copies of this Indenture shall be available for inspection by the Holders on a Business Day during normal business hours at the principal office of the Company and at the Corporate Trust Office. In addition, if the Securities of any series are listed on the London Stock Exchange, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, copies of this Indenture, the Deposit Agreement, the Letter of Representations, the memorandum and articles of association of the Company and the most recent publicly available annual report of the Company shall be made available for inspection by the Holders of such Securities on a Business Day during normal business hours at the offices of the paying agents and at the office of the listing agent required to be maintained by such exchange for so long as the Securities of such series are outstanding and are listed on such stock exchange.
1011. Reports by Company
If the Company becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, then the Company shall file with the Trustee, and the Trustee shall provide Holders, within 15 days after it files them with the Commission, copies of its annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
As long as the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, nor is exempt from reporting pursuant
to Rule 12g3-2(b) under the Exchange Act and the Securities of any series are
"restricted securities" within the meaning of Rule 144 under the Securities Act,
upon the request of a Holder or any holder of a beneficial interest in a
Book-Entry Interest in a Global Security, the Company shall promptly furnish or
cause to be furnished "Rule 144A Information" (as defined herein) to such Holder
or holder of a beneficial interest in a Book-Entry Interest in a Global Security
or to a prospective purchaser of such Security designated by such Holder or
holder of a beneficial interest in a Book-Entry Interest in a Global Security in
order to permit compliance with Rule 144A. "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act.
1012. Resale of Restricted Securities by the Company
Except as otherwise provided pursuant to Section 301 or pursuant to a supplemental indenture entered into pursuant to Article Nine hereof, beginning from the original issue date with respect to the Senior Notes of each series through the time period referred to in Rule 144(k) under the Securities Act, the Company will not, and will not permit any of its "affiliates" (as defined under Rule 144 under the Securities Act) to, resell any Senior Notes of such series which constitute "restricted securities" under Rule 144 otherwise than pursuant to an effective registration statement under the Securities Act.
ARTICLE XI
REDEMPTION OF SECURITIES
1101. Applicability of Article
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified in or contemplated by Section 301 for Securities of any series) in accordance with this Article Eleven.
1102. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be authorized by a Board Resolution and evidenced by an Officers' Certificate. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or pursuant to an election by the Company which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction or condition.
1103. Selection by Trustee of Securities to Be Redeemed
If less than all the Securities of any series are to be redeemed, the particular securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions equal to the minimum authorized denomination for Securities of that series (or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by certificate number in a written statement
signed by an authorized officer of the Company and delivered to the Security
Exchange Agent/Registrar at least 45 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
1104. Notice of Redemption
Notice of redemption shall be given not less than 30 days nor more than 60 days prior to the Redemption Date to each Holder of Securities to be redeemed in accordance with Section 106.
All notices of redemption shall include the CUSIP number and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
1105. Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Principal Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in same day funds sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date (to the extent that such amounts are not already on deposit at such time in accordance with the provisions of Sections 401, 402 or 1007).
1106. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued and unpaid interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued and unpaid interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, and in the case of Registered Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 306.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
1107. Securities Redeemed in Part
Any Security (including any Global Security) which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee upon written direction shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the security so surrendered; provided, that if a Global Security is surrendered for partial redemption, no new Global Security shall be issued but instead the principal amount of the surrendered Global Security shall be reduced by an endorsement to Schedule A to such Global Security by the Security Exchange Agent/Registrar equal to the redeemed portion of the principal of the Global Security so surrendered, whereupon such Global Security shall be delivered to the Book-Entry Depository; and provided further that following any such partial redemption the Securities selected for redemption and any beneficial interests therein shall not have had their principal amount reduced below the minimum authorized denomination for Securities of such series and for any beneficial interests therein. In the case of a partial redemption of the Global Securities, DTC (and, in turn, its Participants) shall have the responsibility to select the interests in the Book-Entry Interest in such Global Securities to be redeemed in accordance with Applicable Procedures.
1108. Optional Redemption in the Event of Change in United Kingdom Tax Treatment
The Securities of any series may be redeemed at the election of the
Company, as a whole, but not in part, by the giving of notice as provided in
Section 1104, at a price equal to the outstanding principal amount thereof,
together with Additional Amounts, if any, and accrued interest, if any, to the
Redemption Date, if: (a) the Company has or will become obligated to pay
Additional Amounts on the Securities of such series, as a result of either (x)
any change in, or amendment to, the laws or regulations of the United Kingdom or
any political subdivision or any authority or agency thereof or therein having
power to tax or levy duties, or any change in the application or interpretation
of such laws or regulations, which change or amendment becomes effective on or
after the date of the relevant underwriting or purchase agreement for the
Securities of such series, or (y) the issuance of definitive Registered
Securities at any time because (i) of an Optional Definitive Security Request,
(ii) DTC notifies the Company and the Book-Entry Depositary that it is unable or
unwilling to continue to hold the Book-Entry Interest or DTC at any time ceases
to be a "clearing agency" registered as such under the Exchange Act and, in
either case, a successor is not appointed by the Company within 120 days; (iii)
while the Global Security is subject to the transfer restrictions set forth in
the legend hereon, the Book-Entry Interests cease to be eligible for DTC
services because the Securities of such series are neither rated in one of the
top four categories by a nationally recognized statistical rating organization
nor included within a Self-Regulatory Organization system approved by the
Commission for the reporting of quotation and trade information of securities
eligible for transfer pursuant to Rule 144A, such as the PORTAL system; or (iv)
the Book-Entry Depositary notifies the Company that it is unwilling or unable to
continue as Book-Entry Depositary with respect to the Securities of such series,
and no successor is appointed by the Company within 120 days; and (b) such
obligation cannot be avoided by the Company taking reasonable measures available
to it; provided, that, (i) no notice of redemption shall be given earlier than
90 days prior to the earliest date on which the Company would be obligated to
pay such Additional Amounts were a payment in respect of the Securities then
due; and (ii) prior to the giving of any such notice of redemption the Company
shall deliver to the Trustee an opinion of independent legal counsel of
recognized standing addressed to the Company stating that the Company is
entitled to effect such redemption, and an Officers' Certificate stating that
the obligation to pay such Additional Amounts cannot be avoided by the Company
taking reasonable measures available to it.
ARTICLE XII
SINKING FUNDS
1201. Applicability of Article
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
1202. Satisfaction of Sinking Fund Payments with Securities
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 313, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 1202, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Company through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund Redemption Price specified in such
Securities.
1203. Redemption of Securities for Sinking Fund
Not less than 30 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying (a) the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, (b) whether or not the Company intends to exercise its right, if any, to make an optional sinking fund payment with respect to such series on the next ensuing sinking fund payment date and, if so, the amount of such optional sinking fund payment, and (c) the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202, and will also deliver to the Trustee any Securities to be so delivered. Such written statement shall be irrevocable and upon its receipt by the Trustee the Company shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such 30th day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect therefor and (ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this Section 1203.
Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
The Trustee shall not redeem or cause to be redeemed any Security of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a default in payment of interest with respect to Securities of that series or an Event of Default with respect to the Securities of that series except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 513 or the default or Event of Default cured on or before the 30th day preceding the sinking fund payment date, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section 1203 to the redemption of such Securities.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
1301. Purposes of Meeting
A meeting of the Holders may be called at any time from time to time pursuant to this Article Thirteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to Article Nine hereof;
(2) to remove the Trustee and appoint a successor trustee pursuant to Article Six hereof;
(3) to consent to the execution of an indenture supplemental hereto pursuant to Section 902 hereof.
1302. Place of Meetings
(a) The Trustee may at any time (upon not less than 21 days'
notice) call a meeting of Holders to be held at such time and at such place in
the location determined by the Trustee pursuant to this Section 1302 hereof.
Notice of every meeting of Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to each Holder and published in the manner contemplated by
Section 106 hereof.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Securities then outstanding, shall have requested the Trustee to call a meeting
of the Holders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first giving of the notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders in the amount above specified may
determine the time (not less than 21 days after notice is given) and the place
in the location determined by the Company or the Holders pursuant to this
Section 1302 for such meeting and may call such meeting to take any action
authorized in Section 1301 hereof by giving notice thereof as provided in
Section 1302(a) hereof.
1303. Voting at Meetings
To be entitled to vote at any meeting of Holders, a Person shall be (i) a Holder or (ii) a Person appointed by an instrument in writing as proxy for a Holder or Holders by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons so entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel, and any representatives of the Company and its counsel.
1304. Voting Rights, Conducts and Adjournment
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the holding of Securities of a series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities of a series shall be proved in the manner specified in Article Two hereof and the appointment of any proxy shall be proved in such manner as is deemed appropriate by the Trustee or by having the signature of the person executing the proxy witnessed or guaranteed by any bank, banker or trust company customarily authorized to certify to the holding of a security such as a Global Note.
(b) At any meeting of Holders, the representative of Persons holding or representing Securities of a series in an aggregate principal amount sufficient under the appropriate provision of this Indenture to take action upon the business for the transaction of which such meeting was called shall constitute a quorum. Any meetings of Holders duly called pursuant to Section 1303 hereof may be adjourned from time to time by vote of the Holders (or proxies for the Holders) of a majority of the Securities of a series represented at the meeting and entitled to vote, whether or not a quorum shall be present; and the meeting may be held as so adjourned without further notice. No action at a meeting of Holders shall be effective unless approved by Persons holding or representing Securities of a series in the aggregate principal amount required by the provision of this Indenture pursuant to which such action is being taken.
(c) At any meeting of Holders, each Holder or proxy shall be entitled to one vote for each $1,000 principal amount of outstanding Securities of a series held or represented.
1305. Revocation of Consent by Holders
At any time prior to (but not after) the evidencing to the Trustee of the taking of any action at a meeting of Holders by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal corporate trust office and upon proof of holding as provided herein, revoke such consent so far as concerns such Securities. Except as aforesaid any such consent given by the Holder of any Securities shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Securities and of any Securities issued in exchange therefore, in lieu thereof or upon transfer thereof, irrespective of whether or not any notation in regard thereto is made upon such Securities. Any action taken by the Holders of the percentage in aggregate principal amount of the Holders specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities.
ARTICLE XIV
MISCELLANEOUS
1401. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
(a) The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Securities and the Trustee, that any legal action, suit or proceeding against it with respect to its obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Securities may be brought in the United States District Court for the Southern District of New York or in the Supreme Court of New York in New York County, and, until amounts due and to become due in respect of the Securities have been paid, hereby irrevocably consents and submits to the nonexclusive jurisdiction of each such court and any appellate court of either of them in personam, generally and unconditionally with respect to any action, suit or proceeding for itself and in respect of its properties, assets and revenues.
(b) The Company hereby designates, appoints, and empowers CT Corporation System, acting through its office at 1633 Broadway, New York, New York 10019, as the Company's designee, appointee and agent (the "Authorized Agent") to receive, accept and acknowledge for and on its behalf, and its properties, assets and revenues, service of any and all legal process, summons, notices and documents which may be served in any action, suit or proceeding brought against the Company pursuant to paragraph (a) of this Section. Such appointment shall be irrevocable until all amounts in respect of the principal of and any premium and interest due and to become due on or in respect of all the Securities issued under this Indenture have been paid by the Company to the Trustee pursuant to the terms hereof and of the Securities. Notwithstanding the foregoing, the Company reserves the right to appoint another Person satisfactory to the Trustee and located or with an office in the Borough of Manhattan, The City of New York, as a successor Authorized Agent, and upon acceptance of such appointment by such a successor the appointment of the prior Authorized Agent shall terminate. The Company shall give notice to the Trustee and all Holders of the appointment by it of a successor Authorized Agent. If for any reason CT Corporation System ceases to be able to act as the Authorized Agent or to have an address in the Borough of Manhattan, The City of New York, the Company will appoint a successor Authorized Agent in accordance with the two preceding sentences. The Company further agrees to take any and all action, including the filing of any and all documents and instruments as may be necessary to continue such designation and appointment of such agent in full force and effect until this Indenture has been satisfied and discharged in accordance with Article Four hereof. The Company further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents in any action, suit or proceeding against the Company by serving a copy thereof upon the relevant agent for service of process referred to in this Section 1401 (whether or not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service) or by mailing copies thereof by registered or certified air mail, postage prepaid, to the Company at its address specified in or designated pursuant to this Indenture. The Company agrees that the failure of any such designee, appointee and agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of the holders of the Securities and the Trustee, to serve any such legal process, summons, notices and documents in any other manner permitted by applicable law or to obtain jurisdiction over the Company or bring actions, suits or proceedings against the Company in such other jurisdictions, and in such manner, as may be permitted by applicable law. The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought in the United States District Court for the Southern District of New York or in the Supreme Court of New York in New York County, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
If for the purpose of obtaining judgment in any Court it is necessary to convert a sum due hereunder to the holder of any Security from US dollars into another currency, the Company has agreed, and each holder by holding such Security will be deemed to have agreed, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures such Holder could purchase US dollars with such other currency in The City of New York on the Business Day preceding the day on which final judgment is given.
The obligation of the Company in respect of any sum payable by it to the holder of a Security shall, notwithstanding any judgment in a currency (the "judgment currency") other than US dollars, be discharged only to the extent that on the Business Day following receipt by the Holder of such security of any sum, adjudged to be so due in the judgment currency, the Holder of such Security may in accordance with normal banking procedures purchase US dollars with the judgment currency; if the amount of US dollars so purchased is less than the sum originally due to the holder of such Security in the judgment currency (determined in the manner set forth in the preceding paragraph), the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Holder of such Security against such loss, and if the amount of the US dollars so purchased exceeds the sum originally due to the Holder of such Security, such Holder agrees to remit to the Company such excess, provided that such Holder shall have no obligation to remit any such excess as long as the Company shall have failed to pay such Holder any obligations due and payable under such Security, in which case such excess may be applied to such obligations of the Company under such Security in accordance with the terms thereof.
1402. Counterparts
This instrument may be executed in any number of Counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers or directors duly authorized thereto, all as of the day and year first above written.
CE ELECTRIC UK FUNDING COMPANY
By: /s/ Steven A. McArthur
------------------------------------
Name: Steven A. McArthur
Title: Director
|
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Security Exchange Agent/Registrar
and Transfer Agent
By: /s/ Thomas E. Tabor
------------------------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
|
BANQUE INTERNATIONALE A
LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
By: /s/ Thomas E. Tabor
------------------------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
|
STATE OF NEW YORK )
): SS
COUNTY OF NEW YORK )
On this 12th day of December, 1997, before me personally came
|
Steven A. McArthur to me known, who, being by me duly sworn, did depose and say that he is Director and authorized agent of CE Electric UK Funding Company, one of the companies described in and which executed the foregoing instrument; and that he signed his name thereto by authority of the Board of Directors of CE Electric UK Funding Company.
/s/ Ronnell Wilson |
STATE OF NEW YORK )
): SS
COUNTY OF NEW YORK )
|
On this _____ day of December, 1997, before me personally came Thomas E. Tabor to me known, who, being by me duly sworn, did depose and say that he is an authorized agent of The Bank of New York, one of the companies described in and which executed the foregoing instrument; and that he signed his name thereto by authority of the Board of Directors of said corporation.
EXHIBIT 10.73
CE ELECTRIC UK FUNDING COMPANY
and
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Security Exchange Agent/Registrar and Transfer Agent
and
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
6.853%Senior Notes Due 2004
6.995%Senior Notes Due 2007
First Supplemental Indenture
Dated as of December 15, 1997
FIRST SUPPLEMENTAL INDENTURE, dated as of December 15, 1997 (herein called the "First Supplemental Indenture"), among CE ELECTRIC UK FUNDING COMPANY, an unlimited company incorporated under the laws of England and Wales (hereinafter called the "Company"), and THE BANK OF NEW YORK, as Trustee (hereinafter called the "Trustee"), Principal Paying Agent, Securities Exchange Agent/Registrar and Transfer Agent under the Original Indenture referred to below, and BANQUE INTERNATIONALE A LUXEMBOURG S.A., a societe anonyme organized and existing under the laws of the Grand Duchy of Luxembourg, as Paying Agent and Transfer Agent under the Original Indenture.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated as of December 15, 1997 (hereinafter called the "Original Indenture"), to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), the form and terms of which are to be established as set forth in Sections 201 and 301 of the Original Indenture.
WHEREAS, Section 901 of the Original Indenture provides, among other things, that the Company and the Trustee may enter into indentures supplemental to the Original Indenture for, among other things, the purpose of establishing the form and terms of the Securities of any series as permitted in Sections 201 and 301 of the Original Indenture and of appointing an Authenticating Agent with respect to the Securities of any series;
WHEREAS, the Company desires to create two series of the Securities, one series of Securities in an aggregate principal amount of one-hundred and twenty-five million dollars ($125,000,000) to be designated the "6.853% Senior Notes Due 2004" and one series of the Securities in an aggregate principal amount of two-hundred and thirty-seven million dollars ($237,000,000) to be designated the "6.995% Senior Notes Due 2007" (collectively the "Senior Notes"), and all action on the part of the Company necessary to authorize the issuance of the Senior Notes under the Original Indenture and this First Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Senior Notes, when executed by the Company and authenticated and delivered by the Trustee as provided in the Original Indenture, the valid and binding obligations of the Company and to constitute these presents a valid and binding supplemental indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance and purchase of the Senior Notes by the holders thereof and of the acceptance of this trust by the Trustee, the Company covenants and agrees with the Trustee, for the equal benefit of holders of the Senior Notes, as follows:
ARTICLE I.
Definitions
The use of the terms and expressions herein is in accordance with the definitions, uses and constructions contained in the Original Indenture and the forms of Senior Notes attached hereto as Exhibits A and B, respectively. In addition, for all purposes of this First Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise expressly requires, the following terms shall have the respective meanings assigned to them as follows and shall be construed as if defined in Article I of the Original Indenture:
"Book-Entry Depositary" means the person designated by the Company (i) initially, as set forth in Section 301 of this First Supplemental Indenture, or (ii) as specified in the Deposit Agreement as Book-Entry Depositary, or its nominee or the custodian of either, until a successor Book-Entry Depositary shall have become such pursuant to the applicable provisions of the Deposit Agreement, and thereafter "Book-Entry Depositary" shall mean such successor Book-Entry Depositary or its nominee or the custodian of either.
"Definitive Registered Senior Notes" means a Senior Note of either series modified from the applicable forms set forth in Exhibits A and B to this First Supplemental Indenture by means of such insertions, deletions, substitutions and other variations in accordance with Article II of the Original Indenture as would be appropriate for Senior Notes of such series in definitive registered form.
"Deposit Agreement" means the Deposit Agreement, dated as of the date of this First Supplemental Indenture, between the Company and The Bank of New York, as Book-Entry Depositary.
"DTC" means the Depositary Trust Company or its successors.
"Global Senior Note" means a Rule 144A Global Security or a Regulations S Global Security, in global bearer form substantially in the form set forth in Exhibit A, with respect to the 6.853% Senior Notes Due 2004, or Exhibit B, with respect to the 6.995% Senior Notes Due 2007, to this First Supplemental Indenture.
ARTICLE II.
Terms and Issuance of the Senior Notes
Section 201. Issue of Senior Notes. Two series of Securities, which shall be designated the "6.853% Senior Notes Due 2004" and the "6.995% Senior Notes Due 2007," respectively (collectively, the "Senior Notes"), shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of the Original Indenture and this First Supplemental Indenture (including the forms of Senior Notes set forth in Exhibits A and B, as applicable). The aggregate principal amount of the 6.853% Senior Notes Due 2004 and the aggregate principal amount of 6.995% Senior Notes Due 2007 which may be authenticated and delivered under the First Supplemental Indenture shall not exceed $125,000,000 and $237,000,000, respectively.
Section 202. Form of Senior Notes; Incorporation of Terms. The form of the Senior Notes shall be substantially in the forms of Exhibits A and B attached hereto, as applicable, the respective terms of which are herein incorporated by reference and which are part of this First Supplemental Indenture.
Section 203. Limitation on Liens. The covenant provided by
Section 1004 of the Original Indenture shall be applicable to the Senior Notes.
Section 204. Limitation on Distributions. The covenant provided by Section 1005 of the Original indenture shall be applicable to the Senior Notes.
Section 205. Additional Amounts. The terms provided by Section 1009 of the Original Indenture shall be applicable to the Senior Notes.
Section 206. Place of Payment. The Place of Payment in respect
of the Senior Notes will be (i) in The City of New York, initially at the
Corporate Trust Office of The Bank of New York (which as of the date hereof is
located at 101 Barclay Street, Floor 21 West, New York, NY 10286, Attention:
Corporate Trust Administration and (ii) for so long as the Senior Notes are
listed on the Luxembourg Stock Exchange, in Luxembourg, initially at the
corporate trust office of Banque Internationale a Luxembourg S.A. (which as of
the date hereof is located at 69 route d'Esch, L-1470 Luxembourg).
Section 207. Issuance of Global Senior Notes. The 6.853% Senior Notes Due 2004 shall be issued as one or more Global Senior Notes in bearer form and the 6.995% Senior Notes Due 2007 shall be issued as one or more Global Senior Notes in bearer form (each a "Global Senior Note" and collectively the "Global Senior Notes") and delivered by the Trustee to the Book-Entry
Depositary, as the Holder thereof, or a nominee or custodian therefor, to be held by the Book-Entry Depositary pursuant to the Deposit Agreement.
Section 208. Exchange of the Global Senior Notes. Each of the Global Senior Notes shall be exchangeable for Definitive Registered Senior Notes only as provided in Section 309(b)(ii) of the Original Indenture.
Section 209. Regular Record Date for the Senior Notes. The Regular Record Date for the Senior Notes shall be 15 calendar days immediately prior to each Interest Payment Date.
Section 210. Authorized Denominations. Beneficial interests in Book-Entry Interests in Global Senior Notes, as well as Definitive Registered Senior Notes, may be held only in denominations of $10,000 and integral multiples of $1,000 in excess thereof.
ARTICLE III.
Book-Entry Depositary
Section 301. Book-Entry Depositary. The Bank of New York, a New York banking corporation, and its successors are hereby appointed Book-Entry Depositary with respect to the Senior Notes.
ARTICLE IV.
Section 401. Execution as Supplemental Indenture. This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture and, as provided in the Original Indenture, this First Supplemental Indenture forms a part thereof.
Section 402. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 403. Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 404. Separability Clause. In case any provision in this First Supplemental Indenture or in the Senior Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 405. Benefits of First Supplemental Indenture. Noting in this First Supplemental Indenture or in the Senior Notes, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.
Section 406. Execution and Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereof have caused this First Supplemental Indenture to be duly executed by their respective officers or directors duly authorized thereto, all as of the day and year first above written.
CE ELECTRIC UK FUNDING COMPANY
By: /s/Steven A. McArthur
---------------------
Name: Steven A. McArthur
Title: Director
|
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent, Security
Exchange Agent/Registrar and Transfer Agent
By: /s/ Thomas E. Tabor
---------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
|
BANQUE INTERNATIONALE A LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
By: /s/ Thomas E. Tabor
---------------------
Name: Thomas E. Tabor
Title: Assistant Treasurer
|
STATE OF NEW YORK )
) :SS
COUNTY OF NEW YORK )
On this 12th day of December, 1997, before me personally came
|
Steven A. McArthur to me known, who, being by me duly sworn, did depose and say that he is a Director and an authorized agent of CE Electric UK Funding Company, one of the companies described in and which executed the foregoing instrument; and that he signed his name thereto by authority of the Board of Directors of CE Electric UK Funding Company.
/s/ Ronnell Wilson ------------------------- |
STATE OF NEW YORK )
) :SS
COUNTY OF NEW YORK )
On this ___ day of December, 1997, before me personally came
|
Thomas E. Tabor to me known, who, being by me duly sworn, did depose and say that he is an authorized agent of The Bank of New York, one of the companies described in and which executed the foregoing instrument; and that he signed his name thereto by authority of the Board of Directors of said corporation.
Exhibit A.1
[FORM OF FACE OF RULE 144A GLOBAL SENIOR NOTE DUE 2004]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR A NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK-ENTRY DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF THE BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN INITIALLY RESOLD IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATIONS) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
No. 1 $____________ CUSIP No. 125148 AA 4
ISIN No. US125148 AA 48
Common Code: 8289018
|
CE ELECTRIC UK FUNDING COMPANY, an unlimited company incorporated under the laws of England and Wales (herein called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to the bearer upon surrender hereof the Initial Principal Amount specified on Schedule A hereto (such Initial Principal Amount, as it may from time to time be adjusted by endorsement on Schedule A hereto, is hereinafter referred to as the "Principal Amount") on December 30, 2004, and to pay interest thereon from December 15, 1997, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 30 and December 30 in each year, commencing June 30, 1998 at the rate of 6.853% per annum, until the Principal Amount hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the bearer on such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the bearer on such Interest Payment Date and may be paid to the bearer at the time of payment of such Defaulted Interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security shall be payable only through a Paying Agent located outside the United States and the United Kingdom in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts; provided, that such Paying Agent shall be permitted to make use of a US-based bank account for such purpose. Such payment shall be made by wire transfer of immediately available funds to a US Dollar account maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments of discount and premium, if any) in respect of this Security shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within the United Kingdom or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("United Kingdom Taxes"), unless such withholding or
deduction is required by law. In the event of any such withholding or deduction the Company shall pay to the relevant Holders such additional amounts ("Additional Amounts") as will result in the payment to such Holders of the amount that would otherwise have been receivable by such Holders in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such United Kingdom Taxes in respect of this Security by reason of such Holder (or a fiduciary, settlor, beneficiary, member or shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some connection with the United Kingdom (including but not limited to being a citizen or resident or national or domiciliary of, or carrying on a trade or business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than the mere holding of this Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority or who fails to comply with any other certification, filing, identification, information or other reporting requirements if such is a precondition to exemption from, or the reduction in the rate of, deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal property taxes or any similar taxes, duties, assessments or other governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of any definitive Registered Security issued pursuant to an Optional Definitive Security Request.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (f) above. If the Company shall determine that Additional Amounts will not be payable because of
the immediately preceding sentence, the Company will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in respect of this Security shall be deemed also to refer to any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts ) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to the Holder of this Security upon request.
So long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: _______________________________ Authorized Signatory
[FORM OF REVERSE OF RULE 144A GLOBAL SENIOR NOTE DUE 2004]
CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of December 15, 1997 (herein called the "Original Indenture"), among the Company and The Bank of New York, as trustee, principal paying agent, security exchange agent/registrar and transfer agent (herein called the "Trustee," which term includes any successor trustee under the Original Indenture), and Banque Internationale a Luxembourg S.A., as paying agent and transfer agent (herein called the "Paying Agent and Transfer Agent," which term includes any successor paying and transfer agent under the Original Indenture), as supplemented by the First Supplemental Indenture, dated as of December 15, 1997 (together with the Original Indenture, the "Indenture") among the Company, the Trustee and the Paying Agent and Transfer Agent, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Terms defined in the Indenture which are not defined herein are used with the meanings assigned to them in the Indenture. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $125,000,000.
The Securities of this series will be redeemable in whole or in part, at the option of the Company at any time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities of this series being redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities of this series being redeemed discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield plus 15 basis points, plus, for (i) or (ii) above, whichever is applicable, accrued interest on the Securities of this series to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any Redemption Date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day in New York City preceding such Redemption Date, as set forth in the daily statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for US Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent investment banking institution of international standing appointed by the Company.
"Reference Treasury Dealer" means a primary US Government securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the Indenture not less than 30 days nor more than 60 days prior to the Redemption Date.
If fewer than all the Securities of this series are to be redeemed, selection of Securities of this series for redemption will be made by the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption Price, from and after the Redemption Date, the Securities of this series or portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect of such Securities of this series except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the Trustee will reduce the Principal Amount hereof by endorsement on Schedule A hereto such that the Principal Amount shown on Schedule A after such endorsement will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture to the Holders of Securities of this series at a price equal to the outstanding principal amount thereof together with Additional
Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date if: (a) the Company has or will become obliged to pay Additional Amounts as a result of either (x) any change in, or amendment to, the laws or regulations of the United Kingdom or any political subdivision or any authority or agency thereof or therein having power to tax or levy duties, or any change in the application or interpretation of such laws or regulations, which change or amendment becomes effective on or after December 5, 1997, or (y) the issuance of definitive Registered Securities at any time because (i) of an Optional Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests, or DTC at any time ceases to be a "clearing agency" registered as such under the Exchange Act, and, in either case, a successor is not appointed by the Company within 120 days; (iii) while this Global Security is subject to the transfer restrictions set forth in the legend hereon, the Book-Entry Interests cease to be eligible for DTC services because the Securities of such series are neither rated in one of the top four categories by a nationally recognized statistical rating organization nor included within a Self-Regulatory Organization system approved by the Commission for the reporting of quotation and trade information of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to this Security, and no successor is appointed by the Company within 120 days; and (b) such obligation cannot be avoided by the Company taking reasonable measures available to it; provided that (i) no notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due; and (ii) prior to the publication of any such notice or redemption, the Company shall deliver to the Trustee both an opinion of independent legal counsel of recognized standing addressed to the Company stating that the Company is entitled to effect such redemption, and an Officers' Certificate in the form specified in the Indenture stating that the obligation to pay Additional Amounts referred to in (a) above cannot be avoided by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to Securities of this series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to Securities of this series have been cured or waived (other than the non-payment of principal of the Securities of this series which has become due solely by reason of such declaration of acceleration) then and in every such case, the Holders of a majority in aggregate principal amount of the Outstanding securities of such series may, by written notice to the Company and to the Trustee, rescind and
annul such declaration and its consequences on behalf of all of the Holders, but no such recision or annulment shall extend to or affect any subsequent default or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and rights of the Holders of the Securities of any series at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor on in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest, if any, on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
in part if there shall have occurred and be continuing an Event of Default with respect to the Securities of this series and the Holder, in such circumstance, shall have requested in writing that this Security be exchanged for one or more definitive Registered Securities (an "Optional Definitive Security Request"). Securities so issued in exchange for this Security shall be of the same series, having the same interest rate, if any, and maturity and having the same terms as this Security, in authorized denominations and in the aggregate having the same principal amount as this Security and registered in such names as the Book-Entry Depositary for this Security shall direct based on the instructions of DTC.
The bearer of this Global Security shall be treated as the owner of it for all purposes, subject to the terms of the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities of this series and may otherwise deal with the Company, its Subsidiaries or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company shall have any liability for any obligation of the Company under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities of this series by accepting a Security of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. This Security will also bear an ISIN number
and a Common Code. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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A-13
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Exhibit A.2
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[FORM OF FACE OF REGULATION S GLOBAL SENIOR NOTE DUE 2004]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR A NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK-ENTRY DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF THE BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN ISSUED IN RELIANCE ON REGULATION S UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATIONS) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
No. 2 $____________ CUSIP No. G1989D AA 5
ISIN No. USG1989 AA 57
Common Code: 8289018
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CE ELECTRIC UK FUNDING COMPANY, an unlimited company incorporated under the laws of England and Wales (herein called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to the bearer upon surrender hereof the Initial Principal Amount specified on Schedule A hereto (such Initial Principal Amount, as it may from time to time be adjusted by endorsement on Schedule A hereto, is hereinafter referred to as the "Principal Amount") on December 30, 2004, and to pay interest thereon from December 15, 1997, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 30 and December 30 in each year, commencing June 30, 1998 at the rate of 6.853% per annum, until the Principal Amount hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the bearer on such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the bearer on such Interest Payment Date and may be paid to the bearer at the time of payment of such Defaulted Interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security shall be payable only through a Paying Agent located outside the United States and the United Kingdom in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts; provided, that such Paying Agent shall be permitted to make use of a US-based bank account for such purpose. Such payment shall be made by wire transfer of immediately available funds to a US Dollar account maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments of discount and premium, if any) in respect of this Security shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within the United Kingdom or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("United Kingdom Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction the Company shall pay to the relevant Holders such additional amounts ("Additional Amounts") as will result in the payment to such Holders of the
amount that would otherwise have been receivable by such Holders in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such United Kingdom Taxes in respect of this Security by reason of such Holder (or a fiduciary, settlor, beneficiary, member or shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some connection with the United Kingdom (including but not limited to being a citizen or resident or national or domiciliary of, or carrying on a trade or business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than the mere holding of this Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority or who fails to comply with any other certification, filing, identification, information or other reporting requirements if such is a precondition to exemption from, or the reduction in the rate of, deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal property taxes or any similar taxes, duties, assessments or other governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of any definitive Registered Security issued pursuant to an Optional Definitive Security Request.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (f) above. If the Company shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in respect of this Security shall be deemed also to refer to any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to the Holder of this Security upon request.
So long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: ________________________________ Authorized Signatory
[FORM OF REVERSE OF REGULATION S GLOBAL SENIOR NOTE DUE 2004]
CE ELECTRIC UK FUNDING COMPANY
6.853% Senior Notes Due 2004
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of December 15, 1997 (herein called the "Original Indenture"), among the Company and The Bank of New York, as trustee, principal paying agent, security exchange agent/registrar and transfer agent (herein called the "Trustee," which term includes any successor trustee under the Original Indenture), and Banque Internationale a Luxembourg S.A., as paying agent and transfer agent (herein called the "Paying Agent and Transfer Agent," which term includes any successor paying and transfer agent under the Original Indenture), as supplemented by the First Supplemental Indenture, dated as of December 15, 1997 (together with the Original Indenture, the "Indenture") among the Company, the Trustee and the Paying Agent and Transfer Agent, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Terms defined in the Indenture which are not defined herein are used with the meanings assigned to them in the Indenture. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $125,000,000.
The Securities of this series will be redeemable in whole or in part, at the option of the Company at any time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities of this series being redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities of this series being redeemed discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield plus 15 basis points, plus, for (i) or (ii) above, whichever is applicable, accrued interest on the Securities of this series to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any Redemption Date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day in New York City preceding such Redemption Date, as set forth in the daily statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for US Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent investment banking institution of international standing appointed by the Company.
"Reference Treasury Dealer" means a primary US Government securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the Indenture not less than 30 days nor more than 60 days prior to the Redemption Date.
If fewer than all the Securities of this series are to be redeemed, selection of Securities of this series for redemption will be made by the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption Price, from and after the Redemption Date, the Securities of this series or portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect of such Securities of this series except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the Trustee will reduce the Principal Amount hereof by endorsement on Schedule A hereto such that the Principal Amount shown on Schedule A after such endorsement will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture to the Holders of Securities of this series at a price equal to the outstanding principal amount thereof together with Additional Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date if: (a) the Company has or will become obliged to pay Additional Amounts as a result of either (x) any change in, or amendment to, the laws or regulations of the United Kingdom or any political subdivision or any authority or agency thereof or therein having power to tax or levy duties, or any change in the application or interpretation of such laws or regulations, which change or amendment becomes effective on or after December 5, 1997, or (y) the issuance of
definitive Registered Securities at any time because (i) of an Optional Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests, or DTC at any time ceases to be a "clearing agency" registered as such under the Exchange Act, and, in either case, a successor is not appointed by the Company within 120 days; (iii) while this Global Security is subject to the transfer restrictions set forth in the legend hereon, the Book-Entry Interests cease to be eligible for DTC services because the Securities of such series are neither rated in one of the top four categories by a nationally recognized statistical rating organization nor included within a Self-Regulatory Organization system approved by the Commission for the reporting of quotation and trade information of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to this Security, and no successor is appointed by the Company within 120 days; and (b) such obligation cannot be avoided by the Company taking reasonable measures available to it; provided that (i) no notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due; and (ii) prior to the publication of any such notice or redemption, the Company shall deliver to the Trustee both an opinion of independent legal counsel of recognized standing addressed to the Company stating that the Company is entitled to effect such redemption, and an Officers' Certificate in the form specified in the Indenture stating that the obligation to pay Additional Amounts referred to in (a) above cannot be avoided by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to Securities of this series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to Securities of this series have been cured or waived (other than the non-payment of principal of the Securities of this series which has become due solely by reason of such declaration of acceleration) then and in every such case, the Holders of a majority in aggregate principal amount of the Outstanding securities of such series may, by written notice to the Company and to the Trustee, rescind and annul such declaration and its consequences on behalf of all of the Holders, but no such recision or annulment shall extend to or affect any subsequent default or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and rights of the Holders of the Securities of any series at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor on in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest, if any, on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
in part if there shall have occurred and be continuing an Event of Default with
respect to the Securities of this series and the Holder, in such circumstance,
shall have requested in writing that this Security be exchanged for one or more
definitive Registered Securities (an "Optional Definitive Security Request").
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Book-Entry
Depositary for this Security shall direct based on the instructions of DTC.
The bearer of this Global Security shall be treated as the owner of it for all purposes, subject to the terms of the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities of this series and may otherwise deal with the Company, its Subsidiaries or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company shall have any liability for any obligation of the Company under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities of this series by accepting a Security of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. This Security will also bear an ISIN number and a Common Code. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $______________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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Exhibit B.1
[FORM OF FACE OF RULE 144A GLOBAL SENIOR NOTE DUE 2007]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR A NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK-ENTRY DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF THE BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN INITIALLY RESOLD IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS
SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS
THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE
TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
No. 1 $____________ CUSIP No. 125148 AB 2
ISIN No. US125148 AB 21
Common Code: 8289042
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CE ELECTRIC UK FUNDING COMPANY, an unlimited company incorporated under the laws of England and Wales (herein called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to the bearer upon surrender hereof the Initial Principal Amount specified on Schedule A hereto (such Initial Principal Amount, as it may from time to time be adjusted by endorsement on Schedule A hereto, is hereinafter referred to as the "Principal Amount") on December 30, 2007, and to pay interest thereon from December 15, 1997, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 30 and December 30 in each year, commencing June 30, 1998 at the rate of 6.995% per annum, until the Principal Amount hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the bearer on such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the bearer on such Interest Payment Date and may be paid to the bearer at the time of payment of such Defaulted Interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security shall be payable only through a Paying Agent located outside the United States and the United Kingdom in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts; provided, that such Paying Agent shall be permitted to make use of a US-based bank account for such purpose. Such payment shall be made by wire transfer of immediately available funds to a US Dollar account maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments of discount and premium, if any) in respect of this Security shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within the United Kingdom or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("United Kingdom Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction the Company shall pay to the relevant Holders such additional amounts ("Additional Amounts") as will result in the payment to such Holders of the amount that would otherwise have been receivable by such Holders in the absence
of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such United Kingdom Taxes in respect of this Security by reason of such Holder (or a fiduciary, settlor, beneficiary, member or shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some connection with the United Kingdom (including but not limited to being a citizen or resident or national or domiciliary of, or carrying on a trade or business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than the mere holding of this Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority or who fails to comply with any other certification, filing, identification, information or other reporting requirements if such is a precondition to exemption from, or the reduction in the rate of, deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal property taxes or any similar taxes, duties, assessments or other governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of any definitive Registered Security issued pursuant to an Optional Definitive Security Request.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (f) above. If the Company shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in respect of this Security shall be deemed also to refer to any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to the Holder of this Security upon request.
So long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: ________________________________ Authorized Signatory
[FORM OF REVERSE OF RULE 144A GLOBAL SENIOR NOTE DUE 2007]
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of December 15, 1997 (herein called the "Original Indenture"), among the Company and The Bank of New York, as trustee, principal paying agent, security exchange agent/registrar and transfer agent (herein called the "Trustee," which term includes any successor trustee under the Original Indenture), and Banque Internationale a Luxembourg S.A., as paying agent and transfer agent (herein called the "Paying Agent and Transfer Agent," which term includes any successor paying and transfer agent under the Original Indenture), as supplemented by the First Supplemental Indenture, dated as of December 15, 1997 (together with the Original Indenture, the "Indenture") among the Company, the Trustee and the Paying Agent and Transfer Agent, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Terms defined in the Indenture which are not defined herein are used with the meanings assigned to them in the Indenture. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $237,000,000.
The Securities of this series will be redeemable in whole or in part, at the option of the Company at any time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities of this series being redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities of this series being redeemed discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield plus 20 basis points, plus, for (i) or (ii) above, whichever is applicable, accrued interest on the Securities of this series to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any Redemption Date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day in New York City preceding such Redemption Date, as set forth in the daily statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for US Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent investment banking institution of international standing appointed by the Company.
"Reference Treasury Dealer" means a primary US Government securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the Indenture not less than 30 days nor more than 60 days prior to the Redemption Date.
If fewer than all the Securities of this series are to be redeemed, selection of Securities of this series for redemption will be made by the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption Price, from and after the Redemption Date, the Securities of this series or portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect of such Securities of this series except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the Trustee will reduce the Principal Amount hereof by endorsement on Schedule A hereto such that the Principal Amount shown on Schedule A after such endorsement will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture to the Holders of Securities of this series at a price equal to the outstanding principal amount thereof together with Additional Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date if: (a) the Company has or will become obliged to pay Additional Amounts as a result of either (x) any change in, or amendment to, the laws or regulations of the United Kingdom or any political subdivision or any authority or agency thereof or therein having power to tax or levy duties, or any change in the application or interpretation of such laws or regulations, which change or amendment becomes effective on or after December 5, 1997, or (y) the issuance of
definitive Registered Securities at any time because (i) of an Optional Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests, or DTC at any time ceases to be a "clearing agency" registered as such under the Exchange Act, and, in either case, a successor is not appointed by the Company within 120 days; (iii) while this Global Security is subject to the transfer restrictions set forth in the legend hereon, the Book-Entry Interests cease to be eligible for DTC services because the Securities of such series are neither rated in one of the top four categories by a nationally recognized statistical rating organization nor included within a Self-Regulatory Organization system approved by the Commission for the reporting of quotation and trade information of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to this Security, and no successor is appointed by the Company within 120 days; and (b) such obligation cannot be avoided by the Company taking reasonable measures available to it; provided that (i) no notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due; and (ii) prior to the publication of any such notice of redemption the Company shall deliver to the Trustee both an opinion of independent legal counsel of recognized standing addressed to the Company stating that the Company is entitled to effect such redemption, and an Officers' Certificate in the form specified in the Indenture stating that the obligation to pay Additional Amounts referred to in (a) above cannot be avoided by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to Securities of this series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to Securities of this series have been cured or waived (other than the non-payment of principal of the Securities of this series which has become due solely by reason of such declaration of acceleration) then and in every such case, the Holders of a majority in aggregate principal amount of the Outstanding securities of such series may, by written notice to the Company and to the Trustee, rescind and annul such declaration and its consequences on behalf of all of the Holders, but no such recision or annulment shall extend to or affect any subsequent default or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and rights of the Holders of the Securities of any series at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor on in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest, if any, on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
in part if there shall have occurred and be continuing an Event of Default with
respect to the Securities of this series and the Holder, in such circumstance,
shall have requested in writing that this Security be exchanged for one or more
definitive Registered Securities (an "Optional Definitive Security Request").
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Book-Entry
Depositary for this Security shall direct based on the instructions of DTC.
The bearer of this Global Security shall be treated as the owner of it for all purposes, subject to the terms of the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities of this series and may otherwise deal with the Company, its Subsidiaries or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company shall have any liability for any obligation of the Company under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities of this series by accepting a Security of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. This Security will also bear an ISIN number and a Common Code. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_____________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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Exhibit B.2
[FORM OF FACE OF REGULATION S GLOBAL SENIOR NOTE DUE 2007]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY OR A NOMINEE OF A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE BOOK- ENTRY DEPOSITARY TO A NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY A NOMINEE OF THE BOOK-ENTRY DEPOSITARY TO THE BOOK-ENTRY DEPOSITARY OR ANOTHER NOMINEE OF THE BOOK-ENTRY DEPOSITARY OR BY THE BOOK-ENTRY DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR BOOK-ENTRY DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR BOOK-ENTRY DEPOSITARY) MAY BE MADE EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN ISSUED IN RELIANCE ON REGULATION S UNDER THE SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF, US PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A US PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
THEREOF WAS THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF)
THROUGH THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT
WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR
ANY AFFILIATE THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
No. 2 $____________ CUSIP No. G1989D AB 3
ISIN No. USG1989D AB 31
Common Code: 8289042
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CE ELECTRIC UK FUNDING COMPANY, an unlimited company incorporated under the laws of England and Wales (herein called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to the bearer upon surrender hereof the Initial Principal Amount specified on Schedule A hereto (such Initial Principal Amount, as it may from time to time be adjusted by endorsement on Schedule A hereto, is hereinafter referred to as the "Principal Amount") on December 30, 2007, and to pay interest thereon from December 15, 1997, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 30 and December 30 in each year, commencing June 30, 1998 at the rate of 6.995% per annum, until the Principal Amount hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the bearer on such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the bearer on such Interest Payment Date and may be paid to the bearer at the time of payment of such Defaulted Interest, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security shall be payable only through a Paying Agent located outside the United States and the United Kingdom in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts; provided, that such Paying Agent shall be permitted to make use of a US-based bank account for such purpose. Such payment shall be made by wire transfer of immediately available funds to a US Dollar account maintained by the bearer with a bank in the United States.
All payments of principal and interest (including payments of discount and premium, if any) in respect of this Security shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within the United Kingdom or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("United Kingdom Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction the Company shall pay to the relevant Holders such
additional amounts ("Additional Amounts") as will result in the payment to such Holders of the amount that would otherwise have been receivable by such Holders in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such United Kingdom Taxes in respect of this Security by reason of such Holder (or a fiduciary, settlor, beneficiary, member or shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some connection with the United Kingdom (including but not limited to being a citizen or resident or national or domiciliary of, or carrying on a trade or business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than the mere holding of this Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority or who fails to comply with any other certification, filing, identification, information or other reporting requirements if such is a precondition to exemption from, or the reduction in the rate of, deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer or personal property taxes or any similar taxes, duties, assessments or other governmental charges; or
(f) to, or to a Person on behalf of, a Holder in respect of any definitive Registered Security issued pursuant to an Optional Definitive Security Request.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (f) above. If the
Company shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
References to principal, interest, discount or premium in respect of this Security shall be deemed also to refer to any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be made available by the Trustee to the Holder of this Security upon request.
So long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxembourger Wort).
REFERENCES IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an officer or director duly authorized.
CE ELECTRIC UK FUNDING COMPANY
By: ________________________________
Name:
Title:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:______________ By: ________________________________ Authorized Signatory
[FORM OF REVERSE OF REGULATION S GLOBAL SENIOR NOTE DUE 2007]
CE ELECTRIC UK FUNDING COMPANY
6.995% Senior Notes Due 2007
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of December 15, 1997 (herein called the "Original Indenture"), among the Company and The Bank of New York, as trustee, principal paying agent, security exchange agent/registrar and transfer agent (herein called the "Trustee," which term includes any successor trustee under the Original Indenture), and Banque Internationale a Luxembourg S.A., as paying agent and transfer agent (herein called the "Paying Agent and Transfer Agent," which term includes any successor paying and transfer agent under the Original Indenture), as supplemented by the First Supplemental Indenture, dated as of December 15, 1997 (together with the Original Indenture, the "Indenture") among the Company, the Trustee and the Paying Agent and Transfer Agent, to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Terms defined in the Indenture which are not defined herein are used with the meanings assigned to them in the Indenture. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $237,000,000.
The Securities of this series will be redeemable in whole or in part, at the option of the Company at any time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities of this series being redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Securities of this series being redeemed discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield plus 20 basis points, plus, for (i) or (ii) above, whichever is applicable, accrued interest on the Securities of this series to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any Redemption Date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day in New York City preceding such Redemption Date, as set forth in the daily statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for US Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an independent investment banking institution of international standing appointed by the Company.
"Reference Treasury Dealer" means a primary US Government securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such redemption date).
Notice of redemption shall be given as provided for in the Indenture not less than 30 days nor more than 60 days prior to the Redemption Date.
If fewer than all the Securities of this series are to be redeemed, selection of Securities of this series for redemption will be made by the Trustee in any manner the Trustee deems fair and appropriate.
Unless the Company defaults in payment of the Redemption Price, from and after the Redemption Date, the Securities of this series or portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect of such Securities of this series except the right to receive the Redemption Price thereof.
In the event of redemption of this Security in part only, the Trustee will reduce the Principal Amount hereof by endorsement on Schedule A hereto such that the Principal Amount shown on Schedule A after such endorsement will reflect only the unredeemed portion hereof.
The Securities of this series are subject to redemption in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture to the Holders of Securities of this series at a price equal to the outstanding principal amount thereof together with Additional Amounts, if any, and accrued and unpaid interest, if any, to the Redemption Date if: (a) the Company has or will become obliged to pay Additional Amounts as a result of either (x) any change in, or amendment to, the laws or regulations of the United Kingdom or any political subdivision or any authority or agency thereof or therein having power to tax or levy duties, or any change in the application or interpretation of such laws or regulations, which change or amendment becomes effective on or after December 5, 1997, or (y) the issuance of
definitive Registered Securities at any time because (i) of an Optional Definitive Security Request; (ii) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests, or DTC at any time ceases to be a "clearing agency" registered as such under the Exchange Act, and, in either case, a successor is not appointed by the Company within 120 days; (iii) while this Global Security is subject to the transfer restrictions set forth in the legend hereon, the Book-Entry Interests cease to be eligible for DTC services because the Securities of such series are neither rated in one of the top four categories by a nationally recognized statistical rating organization nor included within a Self-Regulatory Organization system approved by the Commission for the reporting of quotation and trade information of securities eligible for transfer pursuant to Rule 144A, such as the PORTAL system; or (iv) the Book-Entry Depositary notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to this Security, and no successor is appointed by the Company within 120 days; and (b) such obligation cannot be avoided by the Company taking reasonable measures available to it; provided that (i) no notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due; and (ii) prior to the publication of any such notice of redemption the Company shall deliver to the Trustee both an opinion of independent legal counsel of recognized standing addressed to the Company stating that the Company is entitled to effect such redemption, and an Officers' Certificate in the form specified in the Indenture stating that the obligation to pay Additional Amounts referred to in (a) above cannot be avoided by the Company taking reasonable measures available to it.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to Securities of this series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to Securities of this series have been cured or waived (other than the non-payment of principal of the Securities of this series which has become due solely by reason of such declaration of acceleration) then and in every such case, the Holders of a majority in aggregate principal amount of the Outstanding securities of such series may, by written notice to the Company and to the Trustee, rescind and annul such declaration and its consequences on behalf of all of the Holders, but no such recision or annulment shall extend to or affect any subsequent default or impair any right consequent thereon.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and rights of the Holders of the Securities of any series at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor on in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest, if any, on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities of this
series registered in the names of Persons other than the Book-Entry Depositary
with respect to such series or its nominee only as provided in this paragraph.
This Security shall be so exchangeable in whole but not in part if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or DTC at any time ceases to
be a "clearing agency" registered as such under the Exchange Act, and, in either
case, a successor is not appointed by the Company within 120 days, (b) while
this Global Security is subject to the transfer restrictions set forth in the
legend hereon, the Book-Entry Interests cease to be eligible for DTC services
because the Securities of such series are neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a Self-Regulatory Organization system approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A, such as
the PORTAL system, (c) the Book-Entry Depositary for Securities of this series
notifies the Company that it is unwilling or unable to continue as Book-Entry
Depositary with respect to this Security and no successor is appointed within
120 days, or (d) the Company in its sole discretion executes and delivers to the
Trustee an Officers' Certificate providing that this Security shall be so
exchangeable. Additionally, this Security shall be so exchangeable in whole or
in part if there shall have occurred and be continuing an Event of Default with
respect to the Securities of this series and the Holder, in such circumstance,
shall have requested in writing that this Security be exchanged for one or more
definitive Registered Securities (an "Optional Definitive Security Request").
Securities so issued in exchange for this Security shall be of the same series,
having the same interest rate, if any, and maturity and having the same terms as
this Security, in authorized denominations and in the aggregate having the same
principal amount as this Security and registered in such names as the Book-Entry
Depositary for this Security shall direct based on the instructions of DTC.
The bearer of this Global Security shall be treated as the owner of it for all purposes, subject to the terms of the Indenture. As provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities of this series and may otherwise deal with the Company, its Subsidiaries or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company shall have any liability for any obligation of the Company under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities of this series by accepting a Security of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. This Security will also bear an ISIN number and a Common Code. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Schedule A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: US $_________________
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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EXHIBIT 10.74
CONFORMED COPY
DATED 4th February, 1998
YORKSHIRE POWER FINANCE LIMITED
and
YORKSHIRE POWER GROUP LIMITED
and
BANKERS TRUSTEE COMPANY LIMITED
TRUST DEED
constituting
(pound)200,000,000
7.25 per cent, Guaranteed Bonds due 2028 (with authority to issue further bonds or notes)
For the Issuer and the Guarantor:
Allen & Overy One New Change London EC4M9QQ
For the Trustee:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
CONTENTS
Clause
Page
1. Definitions 1
2. Covenant to Repay and to Pay Interest on Original Bonds 10
3. Form and Issue of Original Bonds and Original Coupons 13
4. Fees, Duties and Taxes 14
5. Covenant of Compliance 14
6. Cancellation of Securities and Records 14
7. Guarantee and Indemnity 15
8. Enforcement 18
9. Proceedings, Action and Indemnification 18
10. Application of Moneys 18
11. Notice of Payments 19
12. Investment by Trustee 19
13. Partial Payments 20
14. Covenants by the Issuer and the Guarantor 20
15. Remuneration and Indemnification of Trustee 24
16. Supplement to Trustee Act 1925 26
17. Trustee's Liability 29
18. Trustee Contracting with Issuer and Guarantor 29
19. Waiver, Authorisation and Determination 30
20. Holder of Definitive Bearer Security assumed to be Couponholder 30
21. Substitution 31
22. Currency Indemnity 32
23. New Trustee 32
24. Trustee's Retirement and Removal 33
25. Trustee's Powers to be Additional 34
26. Notices 34
27. Governing Law 35
28. Submission to Jurisdiction 35
29. Counterparts 36
Schedule
First Form of Original Temporary Global Bond 37
Form of Original Permanent Global Bond 48
Second Form of Original Bond 55
Form of Original Coupon 57
Form of Original Talon 58
Conditions of the Original Bonds 60
Third Register and Transfer of Registered Securities 75
Fourth Provisions for Meetings of Holders 77
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THIS TRUST DEED is made on 4th February, 1998 BETWEEN:
(1) YORKSHIRE POWER FINANCE LIMITED, a company incorporated under the laws of the Cayman Islands, whose registered office is at P.O. Box 309, George Town, Grand Cayman, Cayman Islands (the "Issuer");
(2) YORKSHIRE POWER GROUP LIMITED, a company incorporated under the laws of England, whose registered office is at Wetherby Road, Scarcroft, Leeds LS14 3HS (the "Guarantor"); and
(3) BANKERS TRUSTEE COMPANY LIMITED, a company incorporated under the laws of England, whose registered office is at 1 Appold Street, Broadgate, London EC2A 2HE (the "Trustee", which expression shall, wherever the context so admits, include such company and all other persons or companies for the time being the trustee or trustees of these presents) as trustee for the Holders and Couponholders (each as defined below).
WHEREAS:
(1) By resolutions of the board of directors of the Issuer passed on 5th January, 1998 and by resolutions of a duly authorised committee of the board of directors of the Issuer passed on 22nd January, 1998 the Issuer has resolved to issue (pound)200,000,000 7.25 per cent. Guaranteed Bonds due 2028 to be constituted by this Trust Deed.
(2) By a resolution of the Board of Directors of the Guarantor passed on 2nd December, 1997 the Guarantor has agreed to guarantee the said Bonds and to enter into certain covenants as set out in this Trust Deed.
(3) The said Bonds in definitive form will be in bearer form with Coupons attached.
(4) The Trustee has agreed to act as trustee of these presents for the benefit of the Holders and Couponholders upon and subject to the terms and conditions of these presents.
NOW THIS TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows:
1. DEFINITIONS
(A) In these presents unless there is anything in the subject or context inconsistent therewith the following expressions shall have the following meanings:
"Agency Agreement" means, in relation to the Securities of any series, the agreement appointing the initial Paying Agents and, if applicable, Registrar and Transfer Agents in relation to such Securities and any other agreement for the time being in force appointing Successor .paying agents and, if applicable, registrars or transfer agents in relation to such Securities, or in connection with their duties, the terms of which have previously been approved in writing by the Trustee, together with any agreement for the time being in force amending or modifying with the prior written approval of the Trustee any of the aforesaid agreements in relation to such Securities;
"Agent Bank" means, in relation to the Securities of any relevant series, the bank initially appointed as agent bank in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agent Bank Agreement or, if applicable, any Successor agent bank in relation to such Securities;
"Agent Bank Agreement" means, in relation to the Securities of any relevant series, the agreement (which may, but need not, be the relative Agency Agreement) appointing the initial Agent Bank in relation to such Securities and any other agreement for the time being in force appointing any Successor agent bank in relation to such Securities, or in connection with its duties, the terms of which have previously been approved in writing by the Trustee, together with any agreement for the time being in force amending or modifying with the prior written approval of the Trustee any of the aforesaid agreements in relation to such Securities;
"Appointee" means any attorney, manager, agent, delegate or other person appointed by the Trustee under these presents;
"Auditors" means the auditors for the time being of the Issuer or the Guarantor (as the case may be) or, in the event of their being unable or unwilling promptly to carry out any action requested of them pursuant to the provisions of these presents, such other firm of accountants as may be nominated or approved by the Trustee for the purposes of these presents after consultation with the Issuer or the Guarantor (as the case may be) where, in the opinion of the Trustee, such consultation is practicable;
"Bearer Securities" means those of the Securities which are for the time being in bearer form;
"Capital and Reserves" has the meaning set out in Condition 3;
"Cedel Bank" means Cedel Bank, societe anonyme;
"Conditions" means:
(i) in relation to the Original Bonds, the Conditions to be endorsed on the Original Bonds in definitive form in the form or substantially in the form set out in Part II of the Second Schedule as the same may from time to time be modified in accordance with these presents and any reference in these presents to a particular specified Condition or paragraph of a Condition shall in relation to the Original Bonds be construed accordingly; and
(ii) in relation to the Further Securities of any series, the Conditions to be endorsed on such Further Securities in definitive form in the form or substantially in the form set out or referred to in the supplemental Trust Deed relating thereto as the same may from time to time be modified in accordance with these presents and any reference in these presents to a particular specified Condition or paragraph of a Condition shall in relation to the Further Securities of any series, unless either referring specifically to a particular specified Condition or paragraph of a Condition of such Further Securities or the context otherwise requires, be construed as a reference to the provisions (if any) in the Conditions thereof which correspond to the provisions of the particular specified Condition or paragraph of a Condition of the Original Bonds;
"Couponholders" means the several persons who are for the time being holders of the Coupons;
"Coupons" means the bearer interest coupons appertaining to the Bearer Securities in definitive form or, as the context may require, a specific number thereof and includes any replacements for Coupons issued pursuant to Condition 14 and, where the context so permits, the Talons;
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System;
"Event of Default" means any of the conditions, events or acts provided in Condition 11 to be events upon the happening of which the Securities of any series would, subject only to notice by the Trustee as therein provided, become immediately due and repayable;
"Excluded Subsidiary" has the meaning set out in Condition 3;
"Extraordinary Resolution" has the meaning set out in paragraph 21 of the Fourth Schedule;
"Further Securities" means bonds or notes (whether in bearer or registered form) of the Issuer constituted by a Trust Deed supplemental to this Trust Deed pursuant to Clause 2(D) or the principal amount thereof for the time being outstanding or as the context may require a specific number thereof and includes any replacements for Further Securities issued pursuant to Condition 14 and where applicable any Global Security issued in respect thereof and, where the context requires or admits, includes the Receipts issued in respect of any Further Securities;
"Global Security" means the Original Temporary Global Bond and/or the Original Permanent Global Bond and/or any other global bond or note issued in respect of the Further Securities of any series and includes any replacements for Global Securities issued pursuant to Condition 14;
"Holders" means the several persons who are for the time being holders of the Securities (being, in the case of Bearer Securities, the bearers thereof and, in the case of Registered Securities, the several persons whose names are entered in the register of holders of the Registered Securities as the holders thereof) and the words "holder" and "holders" and related expressions shall (where appropriate) be construed accordingly;
"indebtedness for borrowed money" has the meaning set out in Condition 3;
"Liability" means any loss, damage, cost, charge, claim, demand, expense, judgment, action, proceeding or other liability whatsoever (including, without limitation, in respect of taxes, duties, levies, imposts and other charges) and including any value added tax or similar tax charged or chargeable in respect thereof and legal fees and expenses on a full indemnity basis;
"Original Bondholders" means the several persons who are for the time being holders of the Original Bonds and, where the context so requires or admits, shall include the Original Receiptholders;
"Original Bonds" means the bonds (in bearer form) comprising the said
(pound)200,000,000 7.25 per cent. Guaranteed Bonds due 2028 of the
Issuer hereby constituted or the principal amount thereof for the time
being outstanding or, as the context may require, a specific number
thereof and includes any replacements for Original Bonds issued
pursuant to Condition 14, where the context so requires or admits any
Original Receipts and (except for the purposes of Clause 3) the
Original Temporary Global Bond and the Original Permanent Global Bond;
"Original Couponholders" means the several persons who are for the time being holders of the Original Coupons;
"Original Coupons" means the Coupons appertaining to the Original Bonds;
"Original Permanent Global Bond" means the permanent global bond in respect of the Original Bonds to be issued pursuant to Clause 3(C) in the form or substantially in the form set out in the First Schedule;
"Original Receiptholders" means the holders of the Original Receipts;
"Original Receipts" means the Receipts appertaining to the Original Bonds;
"Original Talons" means the Talons appertaining to the Original Bonds in definitive form;
"Original Temporary Global Bond" means the temporary global bond in respect of the Original Bonds to be issued pursuant to Clause 3(A) in the form or substantially in the form set out in the First Schedule;
"outstanding" means in relation to the Securities all the Securities issued other than:
(a) those Securities which have been redeemed pursuant to these presents;
(b) those Securities in respect of which the date for redemption in accordance with the Conditions has occurred and the redemption moneys (including premium (if any) and all interest payable thereon) have been duly paid to the Trustee or to the Principal Paying Agent in the manner provided in the Agency Agreement (and where appropriate notice to that effect has been given to the relative Holders in accordance with Condition 15) and remain available for payment against presentation of the relevant Securities and/or Coupons;
(c) those Securities which have been purchased and cancelled in accordance with Condition 7;
(d) those Securities which have become void under Condition 10;
(e) those mutilated or defaced Securities which have been surrendered and cancelled and in respect of which replacements have been issued pursuant to Condition 14;
(f) (for the purpose only of ascertaining the principal amount of the Securities outstanding and without prejudice to the status for any other purpose of the relevant Securities) those Securities which are alleged to have been lost, stolen or destroyed and in respect of which replacements have been issued pursuant to Condition 14;
(g) any Global Security to the extent that it shall have been exchanged for another Global Security in respect of the Securities of the relevant series or for the Securities of the relevant series in definitive form pursuant to its provisions; and
(h) those Bearer Securities which have been exchanged for Registered Securities (and, where applicable, vice versa) and which have been cancelled or, if permitted by the Conditions of such Securities, are for the time being retained by or on behalf of the Issuer, in each case pursuant to the provisions of these presents.
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Holders or any of them;
(ii) the determination of how many and which Securities are for the time being outstanding for the purposes of Clause 9(A), Conditions 11, 12 and 16 and paragraphs 2, 5, 6 and 9 of the Fourth Schedule;
(iii) any discretion, power or authority (whether contained in these presents or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them; and
(iv) the determination by the Trustee whether any event, circumstance, matter or thing is, in its opinion, materially prejudicial to the interests of the Holders or any of them,
those Securities (if any) which are for the time being held by, for the benefit of, or on behalf of, the Issuer, the Guarantor or any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company, in each case as beneficial owner, shall (unless and until ceasing to be so held) be deemed not to remain outstanding;
"Paying Agents" means, in relation to the Securities of any series, the several institutions (including where the context permits the Principal Paying Agent) at their respective specified offices initially appointed as paying agents in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agency Agreement and/or, if applicable, any Successor paying agents in relation to such. Securities;
"PES Licence" has the meaning set out in Condition 3(j);
"PES Subsidiary" has the meaning set out in Condition 3;
"Potential Event of Default" means any condition, event or act which, with the lapse of time and/or the issue, making or giving of any notice, certification, declaration, demand, determination and/or request and/or the taking of any similar action and/or the fulfillment of any Similar condition, would constitute an Event of Default;
"Principal Paying Agent" means, in relation to the Securities of any series, the institution at its Specified office initially appointed as principal paying agent in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agency Agreement or, if applicable, any Successor principal paying agent in relation to such Securities;
"Principal Subsidiary" means at any time a Subsidiary of the Guarantor (other than the Issuer and not being an Excluded Subsidiary or any other Subsidiary of the Guarantor whose only indebtedness for borrowed money is Project Finance Indebtedness):
(a) whose net profits before tax attributable to the Guarantor (consolidated in the case of a Subsidiary which itself has Subsidiaries and which in the normal course, prepares con- solidated accounts) or whose gross assets (consolidated in the case of a Subsidiary which itself has Subsidiaries) represent in each case (or, in the case of a Subsidiary acquired after the end of the financial period to which the then latest relevant audited consolidated accounts of the Guarantor and its Subsidiaries relate, are equal to) not less than 20 per cent, of the consolidated net profits before tax attributable to the shareholders of the Guarantor, or, as the case may be, consolidated gross assets, of the Guarantor and its Subsidi- aries taken as a whole, all as calculated respectively by reference to the then latest audited accounts (consolidated or, as the case may be, unconsolidated) of such Subsidiary and the then latest audited consolidated accounts of the Guarantor and its Subsidiaries, provided that
(i) in the case of a Subsidiary acquired after the end of the financial period to which the then latest relevant audited consolidated accounts relate, the reference to the then latest audited consolidated accounts for the purposes of the calculation above shall, until consolidated accounts for the financial period in which the acquisition is made have been prepared and audited as aforesaid, be deemed to be a reference to such first-mentioned accounts as if such Subsidiary had been shown in such accounts by reference to its then latest relevant audited accounts, adjusted as deemed appropriate by the Auditors of the Guarantor; and
(ii) if, in the case of a Subsidiary which itself has Subsidiaries, no consolidated accounts are prepared and audited, its consolidated net profits before tax attributable to the Guarantor and consolidated gross assets shall be determined on the basis of pro forma consolidated accounts of the relevant Subsidiary and its Subsidiaries prepared and audited for this purpose by the Auditors of the Guarantor or the auditors for the time being of the relevant Subsidiary; or
(b) to which is transferred all or substantially all of the
business, undertaking and assets of a Subsidiary of the
Guarantor which immediately prior to such transfer is a
Principal Subsidiary of the Guarantor, provided that the
transferor Subsidiary shall upon such transfer forthwith
cease to be a Principal Subsidiary of the Guarantor and the
transferee Subsidiary shall cease to be a Principal Subsidiary
of the Guarantor pursuant to this sub-paragraph (b) on the
date on which the consolidated accounts of the Guarantor and
its Subsidiaries for the financial period current at the
date of such transfer have been prepared and audited as
aforesaid but so that such transferor Subsidiary or such
transferee Subsidiary may be a Principal Subsidiary of the
Guarantor on or at any time after the date on which such
consolidated accounts have been prepared and audited as
aforesaid by virtue of the provisions of sub-paragraph (a)
above or before, on or at any time after such date by virtue
of the provisions of this sub-paragraph (b) or sub-paragraph
(c) below; or
(c) to which is transferred a business, an undertaking or assets which, taken together with the business, undertaking and assets of the transferee Subsidiary, generated (or, in the case of the transferee Subsidiary being acquired after the end of the financial period to which the then latest relevant audited consolidated, accounts of the Guarantor and its Sub- sidiaries relate, generate net profits before tax attributable to the Guarantor equal to) not less than 20 per cent. of the consolidated net profits before tax attributable to the share- holders of the Guarantor, or represent (or, in the case afore- said, are equal to) not less than 20 per cent, of the consoli- dated gross assets, of the Guarantor and its Subsidiaries taken as a whole, all as calculated as referred to in sub- paragraph (a) above, provided that the transferor Subsidiary (if a Principal Subsidiary of the Guarantor) shall upon such
transfer forthwith cease to be a Principal Subsidiary of the Guarantor unless immediately following such transfer its business, undertaking and assets generate (or, in the case aforesaid, generate net profits before tax attributable to the Guarantor equal to) not less than 20 per cent. of the con- solidated net profits before tax attributable to the share- holders of the Guarantor, or its assets represent (or, in the case aforesaid, are equal to) not less than 20 per cent. of the consolidated gross assets, of the Guarantor and its Subsidiaries taken as a whole, all as calculated as referred to in sub-paragraph (a) above, and the transferee Subsidiary shall cease to be a Principal Subsidiary of the Guarantor pursuant to this sub-paragraph (c) on the date on which the consolidated accounts of the Guarantor and its Subsidiaries for the financial period current at the date of such transfer have been prepared and audited but so that such transferor Subsidiary or such transferee Subsidiary may be a Principal Subsidiary of the Guarantor on or at any time after the date on which such consolidated accounts have been prepared and audited as aforesaid by virtue of the provisions of sub- paragraph (a) above or before, on or at any time after such date by virtue of the provisions of this sub-paragraph (c) or sub-paragraph (b) above,
provided that, in calculating the consolidated net profits before tax attributable to the shareholders of the Guarantor or consolidated gross assets of the Guarantor and its Subsidiaries taken as a whole, amounts in respect of minority interests shall only be excluded if and to the extent that such amounts have not been already excluded in the course of preparation of the relevant consolidated accounts.
For the purposes of this definition if there shall at any time not be any relevant audited consolidated accounts of the Guarantor and its Subsidiaries, references thereto herein shall be deemed to refer to a consolidation by the Auditors of the Guarantor of the relevant audited accounts of the Guarantor and its Subsidiaries.
A report by the Auditors of the Guarantor that in their opinion a Subsidiary of the Guarantor is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary of the Guarantor shall, in the absence of manifest error, be conclusive and binding on all parties;
"Project Finance Indebtedness" has the meaning set out in Condition 3;
"Receiptholders" means the holders of the Receipts;
"Receipts" means the non-transferable receipts (if any) for Securities to be issued by Paying Agents to the Holders pursuant to Condition 8(c);
"Reference Banks" means, in relation to the Securities of any relevant series, the several banks initially appointed as reference banks in relation to such Securities by the Issuer and the Guarantor and referred to in the Conditions of such Securities and/or, if applicable, any Successor reference banks in relation to such Securities;
"Registered Securities" means those of the Securities which are for the time being in registered form;
"Registrar" means, in relation to the Securities of any relevant series (being, or which are exchangeable for, Registered Securities), the institution at its specified office initially appointed as registrar in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agency Agreement or, if applicable, any Successor registrar in relation to such Securities;
"Relevant Date" has the meaning set out in Condition 9;
"Relevant Indebtedness" has the meaning set out in Condition 3;
"repay", "redeem" and "pay" shall each include both the others and cognate expressions shall be construed accordingly;
"Restructuring Event" has the meaning set out in Condition 8(d)(vii);
"Security Interest" has the meaning set out in Condition 3;
"Securities" means, as the context may require, the Original Bonds and/or any Further Securities and/or any series thereof;
"Subsidiary" means any company which is for the time being a subsidiary (within the meaning of Section 736 of the Companies Act 1985 of Great Britain);
"Successor" means, in relation to the Agent Bank, the Principal Paying Agent, the other Paying Agents, the Reference Banks, the Registrar and the Transfer Agents, any successor to any one or more of them in relation to the Securities of the relevant series which shall become such pursuant to the provisions of these presents, the relative Agent Bank Agreement and/or the relative Agency Agreement (as the case may be) and/or such other or further agent bank, principal paying agent, paying agents, reference banks, registrar and/or transfer agents (as the case may be) in relation to such Securities as may (with the prior approval of, and on terms previously approved by, the Trustee in writing) from time to time be appointed as such, and/or, if applicable, such other or further specified offices (in the former case being within the same city as those for which they are substituted) as may from time to time be nominated, in each case by the Issuer and, if applicable, the Guarantor, and (except in the case of the initial appointments and specified offices made under and specified in the Conditions, the relative Agent Bank Agreement and/or the relative Agency Agreement, as the case may be) notice of whose appointment or, as the case may be, nomination has been given to the relevant Holders pursuant to Clause 14(xiii) in accordance with Condition 15;
"Talons" means the talons appertaining to, and exchangeable in accordance with the provisions therein contained for further Coupons appertaining to, the Bearer Securities of any relevant Series in definitive form and includes any replacements for Talons issued pursuant to Condition 14;
"The Stock Exchange" means, in relation to the Securities of any relevant series, the stock exchange or exchanges (if any) on which such Securities are quoted or listed on the issue thereof;
"these presents" means this Trust Deed and the Schedules and any Trust Deed Supplemental hereto and the Schedules (if any) thereto and the Securities, the Coupons and the Conditions, all as from time to time modified in accordance with the provisions herein or therein Contained;
"Transfer Agents" means, in relation to the Securities of any relevant series (being, or which are exchangeable for, Registered Securities), the institutions at their respective specified offices initially appointed as transfer agents in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agency Agreement and/or, if applicable, any Successor transfer agents in relation to such Securities;
"Trust Corporation" means a corporation entitled by rules made under the Public Trustee Act 1906 of Great Britain or entitled pursuant to any other comparable legislation applicable to a trustee in any other jurisdiction to carry out the functions of a custodian trustee;
words denoting the singular shall include the plural and vice versa;
words denoting one gender only shall include the other genders; and
words denoting persons only shall include firms and corporations and vice versa.
(B) (i) All references in these presents to principal and/or
premium and/or interest in respect of the Securities or to any
moneys payable by the Issuer and/or the Guarantor under these
presents shall be deemed to include a reference to any
additional amounts which may be payable under Condition 9 or,
if applicable, under any undertaking or covenant given
pursuant to Clause 14(xv) or Clause 21(A)(2)(ii).
(ii) All references in these presents to principal or principal
amount shall, unless the context otherwise requires, be deemed
to include the Redemption Price (as defined in Condition 7).
(iii) All references in these presents to "pounds", "sterling",
"pounds sterling" or the sign "(pound)" shall be construed as
references to the lawful currency for the time being of the
United Kingdom.
(iv) All references in these presents to any statute or any
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provision of any statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under any such modification or re-enactment.
(v) All references in these presents to guarantees or to an obligation being guaranteed shall be deemed to include respectively references to indemnities or to an indemnity being given in respect thereof.
(vi) All references in these presents to any action, remedy or method of proceeding for the enforcement of the rights of creditors shall be deemed to include, in respect of any jurisdiction other than England, references to such action, remedy or method of proceeding for the enforcement of the rights of creditors available or appropriate in such jurisdiction as shall most nearly approximate to such action, remedy or method of proceeding described or referred to in these presents.
(vii) All references in these presents to taking proceedings against the Issuer and/or the Guarantor shall be deemed to include references to proving in the winding up of the Issuer and/or the Guarantor (as the case may be).
(viii) Wherever in these presents the Issuer or the Guarantor (as the case may be) is required to give an opinion or make any determination, the Issuer or the Guarantor (as the case may be) shall, in so doing, be entitled to rely on advice from professional advisers but so that, as between the Issuer or the Guarantor (as the case may be), the Trustee, the Holders and the Couponholders, the Issuer or the Guarantor (as the case may be) alone shall be liable as to the validity of such opinion or determination.
(ix) Unless the context otherwise requires words or expressions used in these presents shall bear the same meanings as in the Companies Act 1985 of Great Britain.
(x) In this Trust Deed references to Schedules, Clauses, sub-clauses, paragraphs and sub-paragraphs shall be construed as references to the Schedules to this Trust Deed and to the Clauses, sub-clauses, paragraphs and sub-paragraphs of this Trust Deed respectively.
(xi) In these presents tables of contents and Clause headings are included for ease of reference and shall not affect the construction of these presents.
2. COVENANT TO REPAY AND TO PAY INTEREST ON ORIGINAL BONDS
(A) THE aggregate principal amount of the Original Bonds is limited to
(pound)200,000,000.
(B) The Issuer covenants with the Trustee that it will, in accordance with these presents, on the due date for the final maturity of the Original Bonds provided for in the Conditions, or on such earlier date as the same or any part thereof may become immediately due and repayable thereunder, pay or procure to be paid unconditionally to or to the order of the Trustee in pounds sterling in London in immediately available funds the principal amount of the Original Bonds repayable on that date and shall in the meantime and until such date (both before and after any judgment or other order of a court of competent juris- diction) pay or procure to be paid unconditionally to or to the order of the Trustee as aforesaid interest (which shall accrue from day to day) on the principal amount of the Original Bonds at the rate of 7.25 per cent. per annum payable (less tax, if appropriate) annually in arrear on 4th August, the first such payment to be made on 4th August, 1998 in respect of the period from (and including) 4th February, 1998 to (but excluding) 4th August, 1998 PROVIDED THAT:
(i) every payment of principal or interest in respect of the Original Bonds to or to the account of the Principal Paying Agent in the manner provided in the Agency Agreement shall operate in satisfaction pro tanto of the relative covenant by the Issuer in this Clause except to the extent that there is default in the subsequent payment thereof in accordance with the Conditions to the relevant Original Bondholders or Original Couponholders (as the case may be);
(ii) in any case where payment of principal is not made to the
Trustee or the Principal Paying Agent on or before the due
date, interest shall continue to accrue on the principal
amount of the Original Bonds (both before and after any
judgment or other order of a court of competent jurisdiction)
at the rate aforesaid (or, if higher, the rate of interest
on judgment debts for the time being provided by English law)
up to and including the date which the Trustee determines to
be the date on and after which payment is to be made to the
Original Bondholders in respect thereof as stated in a notice
given to the Original Bondholders in accordance with Condition
15 (such date to be not later than 30 days after the day on
which the whole of such principal amount, together with an
amount equal to the interest which has accrued and is to
accrue pursuant to this proviso up to and including that date,
has been received by the Trustee or the Principal Paying
Agent);
(iii) in any case where payment of the whole or any part of the principal amount of any Original Bond is improperly withheld or refused upon due presentation thereof (other than in circumstances contemplated by proviso (ii) above) interest shall accrue on that principal amount payment of which has been so withheld or refused (both before and after any judgment or other order of a court of competent jurisdiction) at the rate aforesaid or, if higher, the rate of interest on judgment debts for the time being provided by English law) from and including the date of such withholding or refusal up to and including the date on which, upon further presenta-
tion of the relevant Original Bond, payment of the full amount (including interest as aforesaid) in pounds sterling payable in respect of such Original Bond is made or (if earlier) the seventh day after notice is given to the relevant Original Bondholder (either individually or in accordance with Condition 15) that the full amount (including interest as aforesaid) in pounds sterling payable in respect of such Original Bond is available for payment, provided that, upon further presentation thereof being duly made, such payment is made.
The Trustee will hold the benefit of this covenant on trust for the Original Bondholders and the Original Couponholders in accordance with these presents.
TRUSTEE'S REQUIREMENTS REGARDING PAYING AGENTS, REGISTRAR AND TRANSFER
AGENTS
(C) At any time alter an Event of Default or a Potential Event of Default shall have occurred or the Securities shall otherwise have become due and repayable or the Trustee shall have received any money which it proposes to pay under Clause 10 to the Holders and/or Couponholders, the Trustee may:
(i) by notice in writing to the Issuer, the Guarantor, the Principal Paying Agent, the other Paying Agents, the Registrar and the Transfer Agents require the Principal Paying Agent, the other Paying Agents, the Registrar and the Transfer Agents pursuant to the Agency Agreement:
(a) to act thereafter as Principal Paying Agent, Paying Agents, Registrar and Transfer Agents respectively of the Trustee in relation to payments to be made by or on behalf of. the Trustee under the provisions of these presents mutatis mutandis on the terms provided in the Agency Agreement (save that the Trustee's liability under any provisions thereof for the indemnification, remuneration and payment of out-of- pocket expenses of the Paying Agents, the Registrar and the Transfer Agents shall be limited to the amounts for the time being held by the Trustee on the trusts of these presents relating to the relative Securities) and thereafter to hold all Securities and Coupons and all sums, documents and records held by them in respect of Securities and Coupons on behalf of the Trustee; or
(b) to deliver up all Securities and Coupons and all sums, documents and records held by them in respect of Securities and Coupons to the Trustee or as the Trustee shall direct in such notice provided that such notice shall be deemed not to apply to any documents or records which the relative Paying Agent, the Registrar or the relative Transfer Agent, as the case may be, is obliged not to release by any law or regulation; and
(ii) by notice in writing to the Issuer and the Guarantor require each of them to make all subsequent payments in respect of the Securities and Coupons to or to the order of the Trustee and not to the Principal Paying Agent; with effect from the issue of any such notice to the Issuer and the Guarantor and until such notice is withdrawn provisos (i) and (ii) to sub-clause (B) of this Clause relating to the Original Bonds and any similar provisos relating to any Further Securities shall cease to have effect.
FURTHER ISSUES
(D) (i) The Issuer shall be at liberty from time to time (but
subject always to the provisions of these presents) without
the consent of the Holders or Couponholders to create and
issue further bonds or notes (whether in bearer or registered
form) either (a) ranking pari passu in all respects (or in all
respects save for the first payment of interest thereon), and
so that the same shall be consolidated and form a single
series, with the Original Bonds and/or the Further Securities
of any series or (b) upon such terms as to ranking, interest,
conversion, redemption and otherwise as the Issuer may at the
time of issue thereof determine.
(ii) Any further bonds or notes which are to be created and
issued pursuant to the provisions of paragraph (i) above
so as to form a single series with the Original Bonds and/or
the Further Securities of any series shall be constituted by
a trust deed supplemental to this Trust Deed and any other
further bonds or notes which are to be created and issued
pursuant to the provisions of paragraph (i) above may
(subject to the consent of the Trustee) be constituted by a
trust deed supplemental to this Trust Deed. In any such case
the Issuer and the Guarantor shall prior to the issue of any
further bonds or notes to be so constituted (being Further
Securities) execute and deliver to the Trustee a trust deed
supplemental to this Trust Deed (in relation to which all
applicable stamp duties or other documentation fees, duties or
taxes have been paid and, if applicable, duly stamped or
denoted accordingly) and containing a covenant by the Issuer
in the form mutatis mutandis of Clause 2(B) in relation to
the principal, premium (if any) and interest in respect of
such Further Securities and such other provisions (whether
or not corresponding to any of the provisions contained in
this Trust Deed) as the Trustee shall require.
(iii) A memorandum of every such supplemental Trust Deed shall be
endorsed by the Trustee on this Trust Deed and by the Issuer
and the Guarantor on their duplicates of this Trust Deed.
(iv) Whenever it is proposed to create and issue any Further
Securities the Issuer shall give to the Trustee not less than
14 days' notice in writing of its intention so to do stating
the amount of further bonds or notes proposed to be created
and issued.
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(E) Any Further Securities not forming a single series with the Original Bonds or Further Securities of any series shall form a separate series and accordingly, unless for any purpose the Trustee in its absolute discretion shall otherwise determine, the provisions of sub-clause (C) of this Clause and of Clauses 4 to 22 (both inclusive) and 23(B) and the Third and Fourth Schedules shall apply mutatis mutandis separately and independently to each series of the Securities and in such Clauses and Schedules the expressions "Securities", "Holders", "Coupons", "Couponholders", "Receipts", "Receiptholders" and "Talons" shall be construed accordingly.
3. FORM AND ISSUE OF ORIGINAL BONDS AND ORIGINAL COUPONS
(A) THE Original Bonds shall be represented initially by the Original Temporary Global Bond which the Issuer shall issue to a bank depositary common to both Euroclear and Cedel Bank on terms that such depositary shall hold the same for the account of the persons who would otherwise be entitled to receive the Original Bonds in definitive form ("Definitive Original Bonds") (as notified to such depositary by UBS Limited on behalf of the Managers of the issue of the Original Bonds) and the successors in title to such persons as appearing in the records of Euroclear and Cedel Bank for the time being.
(B) The Original Temporary Global Bond shall be printed or typed in the form or substantially in the form set out in the First Schedule. The
Original Temporary Global Bond shall be in the aggregate principal amount shown therein and shall be signed manually by a person duly authorised by the Issuer on behalf of the Issuer and shall be authenticated by or on behalf of the Principal Paying Agent. The Original Temporary Global Bond so executed and authenticated shall be a binding and valid obligation of the Issuer.
(C) The Issuer shall issue the Original Permanent Global Bond in exchange for the Original Temporary Global Bond in accordance with the provisions thereof. The Original Permanent Global Bond shall be printed or typed in the form or substantially in the form set out in the First Schedule. The Original Permanent Global Bond shall be in the aggregate principal amount shown therein and shall be signed manually or in facsimile by a person duly authorised by the Issuer on behalf of the Issuer and shall be authenticated by or on behalf of the Principal Paying Agent. The Original Permanent Global Bond so executed and authenticated shall be a binding and valid obligation of the Issuer.
(D) The Issuer shall issue the Definitive Original Bonds (together with the unmatured Original Coupons attached) in exchange for the Original Permanent Global Bond in accordance with the provisions thereof. Pending exchange of the entire principal amount of the Original Permanent Global Bond the holder thereof shall, subject to the terms thereof, be deemed to be the holder of the Original Bonds and the Original Coupons represented thereby for all purposes.
(E) The Definitive Original Bonds and the Original Coupons shall be issued
to bearer in the respective forms or substantially in the respective
forms set out in Part I of the Second Schedule and the Definitive
Original Bonds shall be issued in the denominations of (pound)1,000,
(pound)10,000 and (pound)100,000 (serially numbered) and shall be
endorsed with the Conditions. Title to the Definitive Original Bonds
and the Original Coupons shall pass by delivery.
(F) The Definitive Original Bonds shall be signed manually or in facsimile by a Director of the Issuer on behalf of the Issuer and shall be authenticated by or on behalf of the Principal Paying Agent. The Issuer may use the facsimile signature of any person who at the date such signature is affixed is a Director of the Issuer notwithstanding that at the time of issue of any of the Definitive Original Bonds he may have ceased for any reason to be the holder of such office. The Definitive Original Bonds so executed and authenticated and the Original Coupons, upon execution and authentication of the relevant Definitive Original Bonds, shall be binding and valid obligations of the Issuer. The Original Coupons shall not be signed.
4. FEES, DUTIES AND TAXES
THE Issuer will pay any stamp, issue, registration, documentary and other fees, duties and taxes, including interest and penalties, payable on or in connection with (i) the execution and delivery of these presents, (ii) the constitution and original issue of the Securities and the Coupons and (iii) any action taken by or on behalf of the Trustee or (where permitted under these presents so to do) any Holder or Couponholder to enforce, or to resolve any doubt concerning, or for any other purpose in relation to, these presents.
5. COVENANT OF COMPLIANCE
EACH of the Issuer and the Guarantor severally covenants with the Trustee that it will comply with and perform and observe all the provisions of these presents which are expressed to be binding on it.
The Conditions shall be binding on the Issuer, the Guarantor, the Holders and the Couponholders. The Trustee shall be entitled to enforce the obligations of the Issuer and the Guarantor under the Securities and the Coupons as if the same were set out and contained in the trust deeds constituting the same, which shall be read and construed as one document with the Securities and the Coupons.
The Trustee shall hold the benefit of this covenant upon trust for itself and the Holders according to its and their respective interests.
6. CANCELLATION OF SECURITIES AND RECORDS
(A) THE Issuer shall procure that all Securities (i) redeemed or (ii)
purchased by or on behalf of the Issuer, the Guarantor or any other
Subsidiary of the Guarantor and surrendered for cancellation or
(iii) which, being mutilated or defaced, have been surrendered and
replaced pursuant to Condition 14 or (iv) exchanged as provided in
these presents (together in each case with all unmatured Coupons
attached thereto or delivered therewith) and all Coupons paid in
accordance with the Conditions or which, being mutilated or defaced,
have been surrendered and replaced pursuant to Condition 14 and all
Talons exchanged in accordance with the Conditions for further Coupons
shall forthwith be cancelled by or on behalf of the Issuer and a
certificate stating:
(a) the aggregate principal amount of Securities which have been redeemed and the aggregate amounts in respect of Coupons which have been paid;
(b) the serial numbers of such Bearer Securities in definitive form;
(c) the total numbers (where applicable, of each denomination) by maturity date of such Coupons;
(d) the aggregate amount of interest paid (and the due dates of such payments) on Global Securities and/or on Registered Securities;
(e) the aggregate principal amount of Securities (if any) which have been purchased by or on behalf of the Issuer, the Guarantor or any other Subsidiary of the Guarantor and cancelled and the serial numbers of such Bearer Securities in definitive form and the total number (where applicable, of each denomination) by maturity date of the Coupons attached thereto or surrendered therewith;
(f) the aggregate principal amounts of Securities and the aggregate amounts in respect of Coupons which have been so exchanged or surrendered and replaced and the serial numbers of such Bearer Securities in definitive form and the total number (where applicable, of each denomination) by maturity date of such Coupons;
(g) the total number (where applicable, of each denomination) by maturity date of unmatured Coupons missing from Securities in definitive form bearing interest at a fixed rate which have been redeemed or exchanged or surrendered and replaced and the serial numbers of the Bearer Securities in definitive form to which such missing unmatured Coupons appertained; and
(h) the total number (where applicable, of each denomination) by maturity date of Talons which have been exchanged for further Coupons,
shall be given to the Trustee by or on behalf of the Issuer as soon as possible and in any event within four months after the date of such redemption, purchase, payment, exchange or replacement (as the case may
be). The Trustee may accept such certificate as conclusive evidence of redemption, purchase, exchange or replacement pro tanto of the Securities or payment of interest thereon or exchange of the Talons respectively and of cancellation of the relative Securities and Coupons.
(B) The Issuer shall procure (i) that the Principal Paying Agent shall keep a full and complete record of all Securities and Coupons (other than serial numbers of Coupons) and of their redemption, purchase by or on behalf of the Issuer, the Guarantor or any other Subsidiary of the Guarantor, cancellation, payment or exchange (as the case may be) and of all replacement securities or coupons or talons issued in sub- stitution for lost, stolen, mutilated, defaced or destroyed Securities or Coupons (ii) that the Principal Paying Agent shall in respect of the Coupons of each maturity retain (in the case of Coupons other than Talons) until the expiry of 10 years from the Relevant Date in respect of such Coupons and (in the case of Talons) indefinitely either all paid or exchanged Coupons of that maturity or a list of the serial numbers of Coupons of that maturity still remaining unpaid or unexchanged and (iii) that such records and Coupons (if any) shall be made available to the Trustee at all reasonable times.
7. GUARANTEE AND INDEMNITY
(A) THE Guarantor hereby irrevocably and unconditionally guarantees to the Trustee:
(i) the due and punctual payment in accordance with the provisions of these presents of the principal of and premium (if any) and interest on the Securities and of any other amounts payable by the Issuer under these presents; and
(ii) the due and punctual performance and observance by the Issuer of each of the other provisions of these presents on the Issuer's part to be performed or observed.
(B) If the Issuer fails for any reason whatsoever punctually to pay any such principal, premium, interest or other amount, the Guarantor shall cause each and every such payment to be made as if the Guarantor instead of the Issuer were expressed to be the primary obligor under these presents and not merely as surety (but without affecting the nature of the Issuer's obligations) to the intent that the holder of the relevant Security, Coupon or Receipt or the Trustee (as the case may be) shall receive the same amounts in respect of principal, premium, interest or such other amount as would have been receivable had such payments been made by the Issuer.
(C) If any payment received by the Trustee or any Holder or Couponholder under the provisions of these presents shall (whether on the subsequent bankruptcy, insolvency or corporate reorganisation of the Issuer or, without limitation, on any other event) be avoided or set aside for any reason, such payment shall not be considered as discharging or diminishing the liability of the Guarantor and this guarantee shall continue to apply as if such payment had at all times remained owing by the Issuer and the Guarantor shall indemnify the Trustee and the Holders and/or Couponholders and/or Receiptholders (as the case may be) in respect thereof PROVIDED THAT the obligations of the Issuer and/or the Guarantor under this sub-clause shall, as regards each payment made to the Trustee or any Holder or Couponholder or Receiptholder which is avoided or set aside, be contingent upon such payment being reimbursed to the Issuer or other persons entitled through the Issuer.
(D) The Guarantor hereby agrees that its obligations under this Clause shall be unconditional and that the Guarantor shall be fully liable irrespective of the validity, regularity, legality or enforceability against the Issuer of, or of any defence or counter-claim whatsoever
available to the Issuer in relation to, its obligations under these presents, whether or not any action has been taken to enforce the same or any judgment obtained against the Issuer, whether or not any of the other provisions of these presents have been modified, whether or not any time, indulgence, waiver, authorisation or consent has been granted to the Issuer by or on behalf of the Holders or the Coupon- holders or the Receiptholders or the Trustee, whether or not any determination has been made by the Trustee pursuant to Clause 19(A), whether or not there have been any dealings or transactions between the Issuer, any of the Holders or Couponholders or Receiptholders or the Trustee, whether or not the Issuer has been dissolved, liquidated, merged, consolidated, bankrupted or has changed its status, functions, control or ownership, whether or not the Issuer has been prevented from making payment by foreign exchange provisions applicable at its place of registration or incorporation and whether or not any other circumstances have occurred which might otherwise con- stitute a legal or equitable discharge of or defence to a guarantor. Accordingly the validity of this guarantee shall not be affected by reason of any invalidity, irregularity, illegality or unenforce- ability of all or any of the obligations of the Issuer under these presents and this guarantee shall not be discharged nor shall the liability of the Guarantor under these presents be affected by any act, thing or omission or means whatever whereby its liability would not have been discharged if it had been the principal debtor.
(E) Without prejudice to the provisions of Clause 9(A) the Trustee may determine from time to time whether or not it will enforce this guarantee which it may do without making any demand of or taking any proceedings against the Issuer and may from time to time make any arrangement or compromise with the Guarantor in relation to this guarantee which the Trustee may consider expedient in the interests of the Holders.
(F) The Guarantor waives diligence, presentment, demand of payment, filing of claims with a court in the event of dissolution, liquidation, merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to these presents or the indebtedness evidenced thereby and all demands whatsoever and covenants that this guarantee shall be a continuing guarantee, shall extend to the ultimate balance of all sums payable and obligations owed by the Issuer under these presents, shall not be discharged except by complete performance of the obligations in these presents and is additional to, and not instead of, any security or other guarantee or indemnity at any time existing in favour of any person, whether from the Guarantor or otherwise.
(G) If any moneys shall become payable by the Guarantor under this guarantee the Guarantor shall not, so long as the same remain unpaid, without the prior written consent of the Trustee:
(i) in respect of any amounts paid by it under this guarantee, exercise any rights of subrogation or contribution or, without limitation. any other right or remedy which may accrue to it in respect of or as a result of any such payment; or
(ii) in respect of any other moneys for the time being due to the Guarantor by the Issuer, claim payment thereof or exercise any other right or remedy;
(including in either case claiming the benefit of any security or right of set-off or, on the liquidation of the Issuer, proving in competition with the Trustee). If, notwithstanding the foregoing, upon the bankruptcy, insolvency or liquidation of the Issuer, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, shall be received by the Guarantor before payment in full of all amounts payable under these presents shall have been made to the Holders, the Couponholders, the
Receiptholders and the Trustee, such payment or distribution shall be received by the Guarantor on trust to pay the same over immediately to the Trustee for application in or towards the payment of all sums due and unpaid under these presents in accordance with Clause 10.
(H) The obligations of the Guarantor under these presents constitute direct, unconditional and (subject to the provisions of Condition 3) unsecured obligations of the Guarantor and (subject as aforesaid) rank and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the Guarantor, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors' rights.
(I) As separate, independent and alternative stipulations, the Guarantor unconditionally and irrevocably agrees (1) that any sum which, although expressed to be payable by the Issuer under this Trust Deed, the Securities or the Coupons, is for any reason (whether or not now existing and whether or not now known or becoming known to the Issuer, the Guarantor, the Trustee or any holder or Couponholder) not recover- able from the Guarantor on the basis of a guarantee will nevertheless be recoverable from it as if it were the sole principal debtor and will be paid by it to the Trustee on demand and (2) as a primary obligation to indemnify the Trustee, each Holder and each Couponholder against any loss suffered by it as a result of any sum expressed to be payable by the Issuer under this Trust Deed, the Securities or the Coupons not being paid on the date and otherwise in the manner specified in this Trust Deed or any payment obligation of the Issuer under this Trust Deed, the Securities or the Coupons being or becoming void, voidable or unenforceable for any reason (whether or not now existing and whether or not now known or becoming known to the Trustee, any Holder or any Couponholder), the amount of any such loss being the amount expressed to be payable by the Issuer in respect of the relevant sum.
8. ENFORCEMENT
(A) THE Trustee may at any time, at its discretion and without notice, take such proceedings and/or other action as it may think fit against or in relation to each of the Issuer and the Guarantor to enforce their respective obligations under these presents.
(B) Proof that as regards any specified Security or Coupon the Issuer or the Guarantor (as the case may be) has made default in paying any amount due in respect of such Security or Coupon shall (unless the contrary be proved) be sufficient evidence that the same default has been made as regards all other Securities or Coupons (as the case may be) in respect of which the relevant amount is due and payable.
(C) References in the provisions of any Trust Deed supplemental to this Trust Deed corresponding to provisos (ii) and (iii) to Clause 2(B) to "the rate aforesaid" shall, in respect of any Securities bearing interest at a floating or variable rate, in the event of such Securities having become due and repayable, with effect from the expiry of the interest period during which such Securities become due and repayable, be construed as references to a rate of interest calculated mutatis mutandis in accordance with the Conditions except that no notices need be published in respect thereof.
9. PROCEEDINGS, ACTION AND INDEMNIFICATION
(A) THE Trustee shall not be bound to take any proceedings mentioned in Clause 8(A) or any other action in relation to these presents unless respectively directed or requested to do so (i) by an Extraordinary Resolution or (ii) in writing by the holders of at least one-quarter in
principal amount of the Securities then outstanding and in either case then only if it shall be indemnified to its satisfaction against all Liabilities to which it may thereby render itself liable or which it may incur by so doing.
(B) Only the Trustee may enforce the provisions of these presents. No Holder or Couponholder shall be entitled to proceed directly against the Issuer or the Guarantor to enforce the performance of any of the provisions of these presents unless the Trustee having become bound as aforesaid to take proceedings fails to do so within a reasonable period and such failure is continuing.
10. APPLICATION OF MONEYS
ALL moneys received by the Trustee under these presents shall, unless and to the extent attributable in the opinion of the Trustee to a particular series of the Securities, be apportioned pari passu and rateably between each series of the Securities, and all moneys received by the Trustee under these presents to the extent attributable in the opinion of the Trustee to a particular series of the Securities or which are apportioned to such series as aforesaid (including any moneys which represent principal, premium or interest in respect of Securities or Coupons which have become void under Condition 10) shall be held by the Trustee upon trust to apply them (subject to Clause 12):
FIRST in payment or satisfaction of all amounts then due and unpaid under Clauses 15 and/or 16(J) to the Trustee and/or any Appointee;
SECONDLY in or towards payment pari passu and rateably of all principal, premium (if any) and interest then due and unpaid in respect of the Securities of that series;
THIRDLY in or towards payment pari passu and rateably of all principal, premium (if any) and interest then due and unpaid in respect of the Securities of each other series; and
FOURTHLY in payment of the balance (if any) to the Issuer or the Guarantor, as the case may be, (without prejudice to, or liability in respect of, any question as to how such payment to the Issuer shall be dealt with as between the Issuer, the Guarantor and any other person).
Without prejudice to this Clause 10, if the Trustee holds any moneys which represent principal, premium (if any) and interest in respect of the Securities which have become void or in respect of which claims have been prescribed under Condition 10, the Trustee will hold such moneys on the above trusts.
11. NOTICE OF PAYMENTS
THE Trustee shall give notice to the relevant Holders in accordance
with Condition 15 of the day fixed for any payment to them under Clause
10. Such payment may be made in accordance with Condition 6 and any
payment so made shall be a good discharge to the Trustee.
12. INVESTMENT BY TRUSTEE
(A) IF the amount of the moneys at any time available for the payment of principal, premium (if any) and interest in respect of the Securities under Clause 10 shall be less than 10 per cent. of the principal amount of the Securities then outstanding the Trustee may at its discretion invest such moneys in some or one of the investments
authorised below. The Trustee at its discretion may vary such invest- ments and may accumulate such investments and the resulting income until the accumulations, together with any other funds for the time being under the control of the Trustee and available for such purpose, amount to at least 10 per cent. of the principal amount of the Securities then outstanding and then such accumulations and funds shall be applied under Clause 10.
(B) Any moneys which under the trusts of these presents ought to or may be invested by the Trustee may be invested in the name or under the control of the Trustee in any investments or other assets in any part of the world whether or not they produce income or by placing the same on deposit in the name or under the control of the Trustee at such bank or other financial institution and in such currency as the Trustee may think fit. If such bank or financial institution is the Trustee or a Subsidiary, holding or associated company of the Trustee it need only account for an amount of interest equal to the largest amount of interest payable by it on such a deposit to an independent customer. The Trustee may at any time vary any such investments for or into other investments or convert any moneys so deposited into any other currency and shall not be responsible for any loss resulting from any such investments or deposits, whether due to depreciation in value, fluctuations in exchange rates or otherwise.
13. PARTIAL PAYMENTS
UPON any payment under Clause 10 (other than payment in full against surrender of a Security or Coupon) the Security or Coupon in respect of which such payment is made shall be produced to the Trustee or the Paying Agent by or through whom such payment is made and the Trustee shall or shall cause such Paying Agent to enface thereon a memorandum of the amount and the date of payment but the Trustee may in any particular case or generally in relation to Registered Securities dispense with such production and enfacement upon such indemnity being given as it shall think sufficient.
14. COVENANTS BY THE ISSUER AND THE GUARANTOR
SO long as any of the Securities remains outstanding (or, in the case of paragraphs (viii), (ix), (xiii) to (xvi) inclusive and (xviii), so long as any of the Securities or Coupons remains liable to prescription) each of the Issuer and the Guarantor severally covenants with the Trustee that it shall:
(i) at all times carry on and conduct its affairs and procure its Subsidiaries (if any) to carry on and conduct their respective affairs in a proper and efficient manner;
(ii) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall properly require and in such form as it shall properly require (including without limitation the procurement by the Issuer and/or the Guarantor of all such certificates called for by the Trustee pursuant to Clause 16(C)) for the purpose of the proper discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(iii) cause to be prepared and certified by its Auditors in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all applicable requirements for the time being of The Stock Exchange;
(iv) at all times keep and procure its Subsidiaries (if any) to keep proper books of account and following the occurrence of an Event of Default or a Potential Event of Default or if the Trustee has grounds to believe that an Event of Default or a
Potential Event of Default has occurred or is likely to occur allow and procure its Subsidiaries to allow the Trustee and any person appointed by the Trustee to whom the Issuer, the Guarantor or the relevant Subsidiary (as the case may be) shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours;
(v) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer or the Guarantor) two copies in English of every balance sheet, profit and loss account, report, circular and notice of general meeting and every other document issued or sent to its shareholders in their capacity as such together with any of the foregoing, and every document issued or sent to holders of securities other than its shareholders (including the Holders) in their capacity as such as soon as reasonably practicable after the issue or publication thereof;
(vi) forthwith give notice in writing to the Trustee of the coming in to existence of any Security Interest which would require any security to be given to any series of the Securities pursuant to Condition 3 or of the occurrence of any Event of Default or any Potential Event of Default or any Restructuring Event
(vii) give to the Trustee (a) within seven days after demand by the
Trustee therefor and (b) (without the necessity for any such
demand) promptly after the publication of its audited accounts
(if such audited accounts are prepared and published) in
respect of each financial period commencing with the financial
period ending 31st March, 1998 (or such later date as may be
the end of the first financial period in respect of which such
accounts are required to be prepared) and in any event not
later than 180 days after the end of each such financial
period a certificate signed by two Directors of the Issuer and
two Directors of the Guarantor to the effect that as at a
date not more than seven days before delivering such certifi-
cate (the "relevant date") there did not exist and had not
existed since the relevant date of the previous certificate
(or in the case of the first such certificate the date hereof)
any Event of Default or any Potential Event of Default or any
Restructuring Event (or if such exists or existed specifying
the same) and that during the period from and including the
relevant date of the last such certificate or in the case of
the first such certificate the date hereof) to and including
the relevant date of such certificate each of the Issuer and
the Guarantor has complied with all its obligations contained
in these presents or (if such is not the case) specifying the
respects in which it has not complied;
(viii) at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the opinion of the Trustee to give effect to these presents;
(ix) at all times maintain an Agent Bank, Reference Banks, Paying Agents, a Registrar and Transfer Agents in accordance with the Conditions;
(x) procure the Principal Paying Agent to notify the Trustee forthwith in the event that it does not, on or before the due date for any payment in respect of the Securities or any of them or any of the Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Securities or Coupons as the case may be;
(xi) in the event of the unconditional payment to the Principal Paying Agent of any sum due in respect of the Securities or any of them or any of the Coupons being made after the due
date for payment thereof forthwith give or procure to be given notice to the relevant Holders in accordance with Condition 15 that such payment has been made;
(xii) use all reasonable endeavours to maintain the listing of the Securities on The Stock Exchange or, if it is unable to do so having used all reasonable endeavours, use all reasonable endeavours to obtain and maintain a quotation or listing of the Securities on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and shall also upon obtaining a quotation or listing of the Securities on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(xiii) give notice to the Holders in accordance with Condition 15 of any appointment, resignation or removal of any Agent Bank, Reference Bank, Paying Agent, Registrar or Transfer Agent (other than the appointment of the initial Agent Bank, Reference Banks, Paying Agents, Registrar and Transfer Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agents, Registrar's or Transfer Agent's specified office and (except as provided by the Agent Bank Agreement or the Agency Agree- ment or the Conditions) at least 30 days prior to such event taking effect; PROVIDED ALWAYS THAT so long as any of the Securities remains outstanding in the case of the termina- tion of the appointment of the Agent Bank, the Registrar or a Transfer Agent or so long as any of the Securities or Coupons remains liable to prescription in the case of the termination of the appointment of the Principal Paying Agent no such termination shall take effect until a new Agent Bank, Registrar, Transfer Agent or Principal Paying Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(xiv) obtain the prior written approval of the Trustee to, and promptly give to the Trustee two copies of, the form of every notice given to the Holders in accordance with Condition 15 (such approval, unless so expressed, not to constitute approval for the purposes of Section 57 of the Financial Services Act 1986 of the United Kingdom of any such notice which is an investment advertisement (as therein defined));
(xv) if payments of principal, premium or interest in respect of the Securities or the Coupons by the Issuer or the Guarantor shall become subject generally to the taxing jurisdiction of any territory or any political sub-division thereof or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any such political sub-division thereof or any such authority therein or thereof, as soon as reasonably practicable after having become aware thereof notify the Trustee of such event and (unless the Trustee otherwise agrees) enter forthwith into a Trust Deed supplemental to this Trust Deed, giving to the Trustee (if required by it) an undertaking or covenant in form and manner satisfactory to the Trustee confirming the juris- diction or jurisdictions which is or are the Relevant Juris- diction for the purposes of Condition 7 and Condition 9;
(xvi) comply with and perform all its obligations under the Agent Bank Agreement and the Agency Agreement and use all reasonable endeavours to procure that the Agent Bank, the Paying Agents, the Registrar and the Transfer Agents comply with and perform
all their respective obligations thereunder and (in the case of the Paying Agents) any notice given by the Trustee pursuant to Clause 2(C)(i) and not make any amendment or modification to either of such Agreements without the prior written approval of the Trustee;
(xvii) in order to enable the Trustee to ascertain the principal amount of Securities of each series for the time being outstanding for any of the purposes referred to in the proviso to the definition of "outstanding" in Clause 1, deliver to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer or two Directors of the Guarantor (as appropriate) setting out the total number and aggregate principal amount of Securities of each series which:
(a) up to and including the date of such certificate have been purchased by the Issuer, the Guarantor, any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company and cancelled; and
(b) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, the Guarantor, any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company;
(xviii) procure its Subsidiaries to comply with all (if any) applicable provisions of Condition 7(d);
(xix) procure that each of the Paying Agents makes available for inspection by Holders and Couponholders at its specified office copies of these presents, the Agency Agreement, the Agent Bank Agreement and the then latest audited balance sheet and profit and loss account (consolidated if applicable) of the Issuer and the Guarantor;
(xx) if, in accordance with the provisions of the Conditions, interest in respect of Bearer Securities denominated in U.S. dollars becomes payable at the specified office of any Paying Agent in the United States of America promptly give notice thereof to the Holders in accordance with Condition 15;
(xxi) give to the Trustee at the same time as sending to it the certificates referred to in paragraph (vii) above and in any event not later than 180 days after the last day of each financial period of the Guarantor, a certificate by the Auditors of the Guarantor listing those Subsidiaries of the Guarantor which as at the relevant date (as defined in paragraph (vii) above) of the relevant certificate given under paragraph (vii) above or, as the case may be, as at such last day were Principal Subsidiaries of the Guarantor for the purposes of Condition 11;
(xxii) (in respect of the Guarantor only) give to the Trustee, as soon as reasonably practicable after the acquisition or disposal of any company which thereby becomes or ceases to be a Principal Subsidiary of the Guarantor or after any transfer is made to any Subsidiary of the Guarantor which thereby becomes a Principal Subsidiary of the Guarantor, a certificate by the Auditors of the Guarantor to such effect;
(xxiii) upon due surrender in accordance with the Conditions, pay the face value of all Coupons (including Coupons issued in exchange for Talons) appertaining to all Securities purchased by (except for those held by the Issuer) the Issuer, the
Guarantor, any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company;
(xxiv) (in respect of the Guarantor only) give to the Trustee a certificate of the Auditors of the Guarantor:
(a) specifying the amount of the Capital and Reserves for the purposes of Condition 3, such certificate to be provided before the Issuer creates or has outstanding a Security Interest in respect of any Relevant Indebtedness and/or guarantees within Condition 3;
(b) specifying that a Subsidiary of the Guarantor
satisfies the provisions of Condition 3(c)(i) and
(ii), such certificate to be provided before or at
the same time as any written notice given to the
Trustee by the Guarantor under Condition 3(c)(iii)
that a Subsidiary of the Guarantor is an Excluded
Subsidiary; and
(c) specifying the amount of the Capital and Reserves for the purposes of Condition 11(c), such certificate to be provided within 10 days of any request by the Trustee for its provision;
(xxv) give to the Trustee a certificate of two Directors of the Issuer or of the Guarantor:
specifying the aggregate amount of any Relevant Indebtedness of the Issuer, the Guarantor or a PES Subsidiary or guaranteed by the Issuer, the Guarantor or a PES Subsidiary and in respect of which a Security Interest or Security Interests has or have been created or is or are outstanding, such certificate to be provided before the Issuer, the Guarantor or a PES Subsidiary creates or has outstanding any new Security Interest;
(xxvi) procure delivery to the Trustee of a certificate of two Directors of Yorkshire Electricity Group plc ("YEG"):
(a) specifying details of any modification to the terms and conditions of the PES Licence, such certificate to be provided promptly upon any such modification being made; and
(b) specifying any higher figure determined by the Director (as defined in the PES Licence) as is mentioned in Condition 11, such certificate to be provided within 5 days of the Director determining such figure by notice in writing to the Secretary of State (as defined in the PES Licence) and YEG; and
(xxvii) give notice to the Trustee as soon as practicable after its Directors or the Directors of any PBS Subsidiary have resolved to give any Security Interest in respect of any Relevant Indebtedness or guarantee as described in Condition 3.
15. REMUNERATION AND INDEMNIFICATION OF TRUSTEE
(A) THE Issuer shall pay to the Trustee remuneration for its services as trustee as from the date of this Trust Deed, such remuneration to be at such rate as may from time to time be agreed between the Issuer, the Guarantor and the Trustee. Such remuneration shall be payable in advance on 4th February in each year, the first such payment to be made on the date hereof. Upon the issue of any Further Securities the rate
of remuneration in force immediately prior thereto shall be increased by such amount as shall be agreed between the Issuer and the Trustee, such increased remuneration to be calculated from such date as shall be agreed as aforesaid. The rate of remuneration in force from time to time may upon the final redemption of the whole of the Securities of any series be reduced by such amount as shall be agreed between the Issuer and the Trustee, such reduced remuneration to be calculated from such date as shall be agreed as aforesaid. Such remuneration shall accrue from day to day and be payable (in priority to payments to the Holders and Couponholders) up to and including the date when, all the Securities having become due for redemption, the redemption moneys and interest thereon to the date of redemption have been paid to the Principal Paying Agent or the Trustee PROVIDED THAT if upon due pre- sentation of any Security or Coupon or any cheque payment of the moneys due in respect thereof is improperly withheld or refused, remuneration will commence again to accrue.
(B) In the event of the occurrence of an Event of Default or a Potential Event of Default or the Trustee considering it expedient or necessary or being requested by the Issuer or the Guarantor to undertake duties which the Trustee and the Issuer or (as the case may be) the Guarantor agree to be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee under these presents the Issuer shall pay to the Trustee such additional remuneration as shall be agreed between them (being the Issuer, the Guarantor and the Trustee).
(C) The Issuer shall in addition pay to the Trustee an amount equal to the amount of any value added tax or similar tax chargeable in respect of its remuneration under these presents.
(D) In the event of the Trustee and the Issuer or (as the case may be) the Guarantor failing to agree:
(1) (in a case to which sub-clause (A) above applies) upon the amount of the remuneration; or
(2) (in a case to which sub-clause (B) above applies) upon whether such duties shall be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee under these presents, or upon such additional remuneration,
such matters shall be determined by a merchant bank (acting as an expert and not as an arbitrator) selected by the Trustee and approved by the Issuer or, falling such approval, nominated (on the application of the Trustee) by the President for the time being of The Law Society of England and Wales (the expenses involved in such nomination and the fees of such merchant bank being payable by the Issuer or failing whom the Guarantor) and the determination of any such merchant bank shall be final and binding upon the Trustee and the Issuer and (where relevant) the Guarantor.
(E) The Issuer shall also, pay or discharge all Liabilities incurred by the Trustee in relation to the preparation and execution of, the exercise of its powers and the performance of its duties under, and in any other manner in relation to, these presents, including but not limited to travelling expenses and any stamp, issue, registration. documentary and other taxes or duties paid or payable by the Trustee in connection with any action taken or contemplated by or on behalf of the Trustee for enforcing, or resolving any doubt concerning, or for any other purpose in relation to, these presents.
(F) All amounts payable pursuant to sub-clause (E) above and/or Clause 16(J) shall be payable by the Issuer within 14 days of a demand by the Trustee and in the case of payments actually made by the Trustee prior to such demand shall (if not paid within seven days after such
demand and the Trustee so requires) carry interest at the rate of one per cent. per annum above the Base Rate from time to time of. National Westminster Bank Plc from the date specified in such demand, and in all other cases shall (if not paid within 14 days of such demand or, if later, within seven days after such demand and, in either case, the Trustee so requires) carry interest at such rate from the date specified in such demand. All remuneration payable to the Trustee shall carry interest at such rate from the due date therefor.
(G) Unless otherwise specifically stated in any discharge of these presents the provisions of this Clause and Clause 16(J) shall continue in full force and effect notwithstanding such discharge.
(H) The Trustee shall be entitled in its absolute discretion to determine in respect of which series of Securities any Liabilities incurred under these presents have been incurred or to allocate any such Liabilities between the Original Bonds and any Further Securities of any series.
16. SUPPLEMENT TO TRUSTEE ACT 1925
THE Trustee shall have all the powers conferred upon trustees by the Trustee Act 1925 of England and Wales and by way of supplement thereto it is expressly declared as follows:
(A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by the Issuer, the Guarantor, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting.
(B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram. facsimile transmission or cable and the Trustee shall not be liable for acting on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be authentic.
(C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the Issuer and/or by any two Directors of the Guarantor and/or (where permitted by the Conditions) any two Directors of YEG and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate.
(D) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such deposit and may pay all sums required to be paid on account of or in respect of any such deposit.
(E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Securities by the Issuer, the exchange of any Global Security for another Global Security or definitive Securities or the delivery of any Global Security or definitive Securities to the person(s) entitled to it or them.
(F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default, Potential Event of Default, Negative Rating Event, any Restructuring Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default, Potential Event of Default, Negative Rating Event, any Restructuring Event or any other such event has occurred and that the Issuer and the Guarantor are observing and performing all their respective obligations under these presents.
(G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise of its trusts, powers, authorities and discretions under these presents (the exercise of which as between the Trustee and the Holders and Couponholders shall be conclusive and binding on the Holders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise.
(H) The Trustee shall not be liable to any person by reason of having acted upon any resolution purporting to have been passed at any meeting of the Holders of Securities of all or any series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution or that for any reason the resolution was not valid or binding upon such Holders and the relative Couponholders.
(I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Security or Coupon purporting to be such and subsequently found to be forged or not authentic.
(J) Without prejudice to the right of indemnity by law given to trustees, each of the Issuer and the Guarantor shall severally indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be incurred by it or him in the execution or purported execution of any of its trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment.
(K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively.
(L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Holder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by the Issuer or the Guarantor or YEG or any. other person in connection with these presents and no Holder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information.
(M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the Issuer or the Guarantor as relevant and any rate, method and date so agreed shall be binding on the Issuer, the Guarantor, the Holders and the Couponholders.
(N) The Trustee may certify whether or not any of the conditions, events and acts set out in sub-paragraphs (b), (c), (e), (f), (g) and (h) (both inclusive) of Condition 11 (each of which conditions, events and acts shall, unless in any case the Trustee in its absolute discretion shall otherwise determine, for all the purposes of these presents be deemed to include the circumstances resulting therein and the consequences resulting therefrom) is in its opinion materially prejudicial to the interests of the Holders and any such certificate shall be conclusive and binding upon the Issuer, the Guarantor, the Holders and the Couponholders.
(O) The Trustee as between itself and the Holders and Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Holders and Couponholders.
(P) In connection with the exercise by it of any of its trusts, powers, authorities and discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the interests of the Holders as a class and, in particular but without limitation, shall not have regard to the consequences of such exercise for individual Holders or Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub- division thereof and the Trustee shall not be entitled to require, nor shall any Holder or Couponholder be entitled to claim, from the Issuer, the Guarantor, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Holders or Couponholders except to the extent already provided for in Condition 9 and/or any undertaking given in addition thereto or in substitution therefor under these presents.
(Q) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents.
(R) The Trustee may whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions under these presents. Such delegation may be made upon such terms (including power to sub- delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Holders think fit. The Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the Issuer.
(S) The Trustee may in the conduct of the trusts of these presents instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing,
all acts required to be done in connection with these presents (including the receipt and payment of money). The Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent.
(T) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating thereto.
l7. TRUSTEE'S LIABILITY
NOTHING in these presents shall in any case in which the Trustee has failed to show the degree of care and diligence required of it as trustee having regard to the provisions of these presents conferring on it any trusts, powers, authorities or discretions exempt the Trustee from or indemnify it against any liability for breach of trust or any Liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under these presents.
18. TRUSTEE CONTRACTING WITH ISSUER AND GUARANTOR
NEITHER the Trustee nor any director or officer of a corporation acting as a trustee under these presents shall by reason of its or his fiduciary position be in any way precluded from:
(i) entering into or being interested in any contract or financial or other transaction or arrangement with the Issuer or the Guarantor or any person or body corporate associated with the Issuer or the Guarantor (including without limitation any con- tract, transaction or arrangement of a banking or insurance nature or any contract, transaction or arrangement in relation to the making of loans or the provision of financial facilities to, or the purchase, placing or underwriting of or the subscribing or procuring subscriptions for or otherwise acquiring, holding or dealing with the Securities or any other bonds, notes, stocks, shares, debenture stock debentures or other securities of, the Issuer or the Guarantor or any person or body corporate associated as aforesaid); or
(ii) accepting or holding the trusteeship of any other trust deed constituting or securing any other securities issued by or relating to the Issuer or the Guarantor or any such person or body corporate so associated or any other office of profit under the Issuer or the Guarantor or any such person or body corporate so associated,
and shall be entitled to retain and shall not be in any way liable to account for any profit made or share of brokerage or commission or remuneration or other benefit received thereby or in connection therewith.
19. WAIVER, AUTHORISATION AND DETERMINATION
(A) THE Trustee may without prejudice to its rights in respect of any subsequent breach, Event of Default or Potential Event of Default from time to time and at any time but only if and in so far as in its opinion the interests of the Holders shall not be materially prejudiced
thereby waive or authorise any breach or proposed breach by the Issuer or the Guarantor of any of the covenants or provisions contained in these presents or determine that any Event of Default or Potential Event of Default shall not be treated as such for the purposes of these presents PROVIDED ALWAYS THAT the Trustee shall not exercise any powers conferred on it by this Clause in contravention of any express direc- tion given by Extraordinary Resolution or by a request under Condition 11 but so that no such direction or request shall affect any waiver, authorisation or determination previously given or made. Any such waiver, authorisation or determination may be given or made on such terms and subject to such conditions (if any) as the Trustee may determine, shall be binding on the Holders and the Couponholders and, if, but only if, the Trustee shall so require, shall be notified by the Issuer to the Holders in accordance with Condition 15 as soon as practicable thereafter.
MODIFICATION
(B) The Trustee may without the consent of the Holders or Couponholders at any time and from time to time concur with the Issuer and the Guarantor in making any modification (i) to these presents (other than the proviso to paragraphs of the Fourth Schedule or any of the matters referred to in that proviso) which in the opinion of the Trustee it may be proper to make PROVIDED THAT the Trustee is of the opinion that such modification will not be materially prejudicial to the interests of the Holders or (ii) to these presents if in the opinion of the Trustee such modification is of a formal, minor or technical nature or to correct a manifest error. Any such modification may be made on such terms and subject to such conditions (if any) as the Trustee may determine, shall be binding upon the Holders and the Couponholders and, unless the Trustee agrees otherwise, shall be notified by the Issuer to the Holders in accordance with Condition 15 as soon as practicable thereafter.
20. HOLDER OF DEFINITIVE BEARER SECURITY ASSUMED TO BE COUPONHOLDER
(A) WHEREVER in these presents the Trustee is required or entitled to exercise a power, trust, authority or discretion under these presents, except as ordered by a court of competent jurisdiction or as required by applicable law, the Trustee shall, notwithstanding that it may have express notice to the contrary, assume that each Holder is the holder of all Coupons appertaining to each Bearer Security in definitive form of which he is the holder.
NO NOTICE TO COUPONHOLDERS
(B) Neither the Trustee nor the Issuer nor the Guarantor shall be required to give any notice to the Couponholders for any purpose under these presents and the Couponholders shall be deemed for all purposes to have notice of the contents of any notice given to the Holders in accordance with Condition 15.
ENTITLEMENT TO TREAT HOLDER AS ABSOLUTE OWNER
(C) The Issuer, the Guarantor, the Trustee, the Paying Agents, the Registrar and the Transfer Agents may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Security and the holder of any Coupon as the absolute owner of such Security or Coupon, as the case may be, for all purposes (whether or not such Security or Coupon shall be overdue and notwithstanding any notice of ownership thereof, any notice of loss or theft thereof or any writing thereon), and the Issuer, the Guarantor, the Trustee, the
Paying Agents, the Registrar and the Transfer Agents shall not be affected by any notice to the contrary. All payments made to any such holder shall be valid and, to the extent of the sums so paid, effective to satisfy and discharge the liability for the moneys payable in respect of such Security or Coupon, as the case may be.
21. SUBSTITUTION
(A) (1) The Trustee may without the consent of the Holders or Coupon-
holders at any time agree with the Issuer and the Guarantor
to the substitution in place of the Issuer (or of the previous
substitute under this Clause) is the principal debtor under
these presents of the Guarantor or any other Subsidiary of
the Guarantor (such substituted company being hereinafter
called the "New Company") provided that a trust deed is
executed or some other form of undertaking is given by the
New Company in form and manner satisfactory to the Trustee,
agreeing to be bound by the provisions of these presents with
any consequential amendments which the Trustee may deem
appropriate as fully as if the New Company had been named in
these presents as the principal debtor in place of the
Issuer (or of the previous substitute under this Clause) and
provided further that (other than in the case of a substitu-
tion of the Guarantor) the Guarantor unconditionally and
irrevocably guarantees all amounts payable under these
presents save where YEG has transferred the PES Licence to the
New Company.
(2) The following further conditions shall apply to (1) above:
(i) the Issuer, the Guarantor and the New Company shall
comply with such other requirements as the Trustee
may direct in the interests of the Holders;
(ii) without prejudice to the rights of reliance of the
Trustee under the immediately following paragraph
(iii), the Trustee is satisfied that the relevant
transaction is not materially prejudicial to the
interests of the Holders; and
(iii) if two Directors of the New Company (or other
officers acceptable to the Trustee) shall certify
that the New Company is solvent at the time at which
the relevant transaction is proposed to be effected
(which certificate the Trustee may rely upon
absolutely) the Trustee shall not be under any duty
to have regard to the financial condition, profits or
prospects of the New Company or to compare the same
with those of the Issuer or the previous substitute
under this Clause as applicable.
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(B) Any such Trust Deed or undertaking shall, if so expressed, operate to release the Issuer or the previous substitute as aforesaid from all of its obligations qua principal debtor under these presents. Not later than 14 days after the execution of such documents and com- pliance with such requirements, the New Company shall give notice thereof in a form previously approved by the Trustee to the Holders in the manner provided in Condition 15. Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be named in these presents as the principal debtor in place of the Issuer (or in place of the previous substitute under this Clause) under these presents and these presents shall be deemed to be amended in such manner as shall be necessary to give effect to the above provisions and, without limitation, references in these presents to the Issuer shall, where the context so requires, be deemed to be or include references to the New Company.
22. CURRENCY INDEMNITY
EACH of the Issuer and the Guarantor shall severally indemnify the Trustee, every Appointee, the Holders and the Couponholders and keep them indemnified against:
(a) any Liability incurred by any of them arising from the non-payment by the Issuer or the Guarantor of any amount due to the Trustee or the Holders or Couponholders under these presents by reason of any variation in the rates of exchange between those used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Issuer or the Guarantor; and
(b) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under these presents (other than this Clause) is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Issuer or the Guarantor and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be reduced by any variation in rates of exchange occurring between the said final date and the date of any distribution of assets in connection with any such bankruptcy, insolvency or liquidation.
The above indemnities shall constitute obligations of the Issuer and the Guarantor separate and independent from their obligations under the other provisions of these presents and shall apply irrespective of any indulgence granted by the Trustee or the Holders or the Couponholders from time to time and shall continue in full force and effect notwithstanding the judgment or filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Issuer or the Guarantor for a liquidated sum or sums in respect of amounts due under these presents (other than this Clause). Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders and Couponholders and no proof or evidence of any actual loss shall be required by the Issuer or the Guarantor or their liquidator or liquidators.
23. NEW TRUSTEE
(A) THE power to appoint a new trustee of these presents shall be vested in the Issuer but no person shall be appointed who shall not previously have been approved by an Extraordinary Resolution. One or more persons may hold office as trustee or trustees of these presents but such trustee or trustees shall be or include a Trust Corporation. Whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the duties, powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a Trust Corporation shall be included in such majority. Any appointment of a new trustee of these presents shall as soon as practicable thereafter be notified by the Issuer to the Principal Paying Agent, the Registrar, the Transfer Agents and the Holders.
SEPARATE AND CO-TRUSTEES
(B) Notwithstanding the provisions of sub-clause (A) above, the Trustee may, upon giving prior notice to the Issuer and the Guarantor (but without the consent of the Issuer, the Guarantor, the Holders or the Couponholders), appoint any person established or resident in any jurisdiction (whether a Trust Corporation or not) to act either as a separate trustee or as a co-trustee jointly with the Trustee:
(i) if the Trustee considers such appointment to be in the interests of the Holders;
(ii) for the purposes of conforming to any legal requirements, restrictions or conditions in any jurisdiction in which any particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction or the enforcement in any jurisdiction of either a judgment already obtained or any of the provisions of these presents against the Issuer and/or the Guarantor.
Each of the Issuer and the Guarantor irrevocably appoints the Trustee to be its attorney in its name and on its behalf to execute any such instrument of appointment. Such a person shall (subject always to the provisions of these presents) have such trusts, powers, authorities and discretions (not exceeding those conferred on the Trustee by these presents) and such duties and obligations as shall be conferred or imposed by the instrument of appointment. The Trustee shall have power in like manner to remove any such person. Such reasonable remuneration as the Trustee may pay to any such person, together with any attributable Liabilities incurred by it in performing its function as such separate trustee or co-trustee, shall for the purposes of these presents be treated as Liabilities incurred by the Trustee.
24. TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of these presents may retire at any time on giving not less than three months' prior written notice to the Issuer and the Guarantor without giving any reason and without being responsible for any Liabilities incurred by reason of such retirement. The Holders may by Extraordinary Resolution remove any trustee or trustees for the time being of these presents. The Issuer and the Guarantor undertake that in the event of the only trustee of these presents which is a Trust Corporation giving notice under this Clause or being removed by Extraordinary Resolution they will use their best endeavours to procure that a new trustee of these presents being a Trust Corporation is appointed as soon as reasonably practicable thereafter. The retirement or removal of any such trustee shall not become effective until a successor trustee being a Trust Corporation is appointed and if, in such circumstances no such appointment has become effective within two months of such notice of retirement or Extraordinary Resolution, the Trustee shall (with the prior written consent of the Issuer and the Guarantor, such consent not be unreasonably withheld) be entitled to appoint a trust corporation as Trustee and shall notify the Issuer and the Guarantor of such appointment.
25. TRUSTEE'S POWERS TO BE ADDITIONAL
THE powers conferred upon the Trustee by these presents shall be in addition to any powers which may from time to time be vested in the Trustee by the general law or as a holder of any of the Securities or Coupons.
26. NOTICES
ANY notice or demand to the Issuer, the Guarantor or the Trustee to be given, made or served for any purposes under these presents shall be given, made or served by sending the same by pre-paid post (first class if inland, first class airmail if overseas), telex (if available) or facsimile transmission or by delivering it by hand as follows:
to the Issuer: P.O. Box 309
George Town
Grand Cayman
Cayman Islands
(Attention: the Company Secretary)
Facsimile No. 001 345 949 8080
(Copy to the Guarantor)
to the Guarantor: Yorkshire Power Group Limited
Wetherby Road
Scarcroft
Leeds
LSI4 3HS
England
(Attention: the Company Secretary)
Telex No. 55128
Facsimile No. 0113 289 5926
to the Trustee: 1 Appold Street
Broadgate
London EC2A 2HE
England
(Attention: the Managing Director)
Telex No. 883341 BANTR-G
Facsimile No. 0171-982 1149
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or to such other address, telex or facsimile number as shall have been notified (in accordance with this Clause) to the other parties hereto and any notice or demand sent by post as aforesaid shall be deemed to have been given, made or served three days in the case of inland post or seven days in the case of overseas post after despatch and any notice or demand sent by telex or facsimile transmission as aforesaid shall be deemed to have been given, made or served 24 hours after the time of despatch provided that in the case of a notice or demand given by telex or facsimile transmission such notice or demand shall forthwith be confirmed by post. The failure of the addressee to receive such confirmation shall not invalidate the relevant notice or demand given by telex or facsimile transmission.
27. GOVERNING LAW
THESE presents are governed by, and shall be construed in accordance with, English law.
28. SUBMISSION TO JURISDICTION
(A) THE Issuer irrevocably agrees for the benefit of the Trustee, the Holders and the Couponholders that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with these presents and that accordingly any suit, action or proceedings arising out of or in connection with these presents (together referred to as "Proceedings") may be brought in the courts of England. The Issuer irrevocably and unconditionally waives and agrees not to raise any objection which it may have now or subsequently to the laying of the venue of any Proceedings in the courts of England and any claim that any Proceedings have been brought in an inconvenient forum and further irrevocably and unconditionally agrees that a judgment in any Proceedings brought in the courts of England shall be conclusive and binding upon the Issuer and may be enforced in the courts of any other jurisdiction. Nothing in this Clause shall limit any right to take Proceedings against the Issuer in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not.
(B) The Issuer irrevocably and unconditionally appoints the Guarantor (which appointment the Guarantor hereby accepts) at its registered office for the time being and in the event of its ceasing so to act will appoint such other person as the Trustee may approve and as the Issuer may nominate in writing to the Trustee for the purpose to accept service of process on its behalf in England in respect of any Proceedings. The Issuer:
(i) agrees to procure that, so long as any of the Securities remains liable to prescription, there shall be in force an appointment of such a person approved by the Trustee with an office in England with authority to accept service as aforesaid;
(ii) agrees that failure by any such person to give notice of such service of process to the Issuer shall not impair the validity of such service or of any judgment based thereon;
(iii) consents to the service of process in respect of any Proceedings by the airmailing of copies, postage prepaid, to the Issuer in accordance with Clause 26; and
(iv) agrees that nothing in these presents shall affect the right to serve process in any other manner permitted by law.
29. COUNTERPARTS
THIS Trust Deed and any Trust Deed supplemental hereto may be executed and delivered in any number of counterparts, all of which, taken together, shall constitute one and the same deed and any party to this Trust Deed or any Trust Deed supplemental hereto may enter into the same by executing and delivering a counterpart.
IN WITNESS whereof this Trust Deed has been executed as a deed by the Issuer, the Guarantor and the Trustee and delivered on the date first stated above.
THE FIRST SCHEDULE
FORM OF ORIGINAL TEMPORARY GLOBAL BOND
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(Incorporated with limited liability under the laws of the Cayman Islands)
TEMPORARY GLOBAL BOND
representing
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS
DUE 2028
Unconditionally and irrevocably guaranteed as to payment of principal and interest by
YORKSHIRE POWER GROUP LIMITED
(Incorporated in England as a private company with limited liability under the Companies Act 1985 with registered number 3227432)
This Bond is a Temporary Global Bond without interest coupons in respect of a duly authorised issue of Bonds of Yorkshire Power Finance Limited (the "Issuer"), designated as specified in the title hereof (the "Bonds"), limited to the aggregate principal amount of Two Hundred Million Pounds Sterling ((pound)200,000,000) and constituted by a Trust Deed dated 4th February, 1998 (the "Trust Deed") between the Issuer, Yorkshire Power Group Limited as guarantor (the "Guarantor") and Bankers Trustee Company Limited as trustee (the trustee for the time being thereof being herein called the "Trustee"). References herein to the Conditions (or to any particular numbered Condition) shall be to the Conditions (or that particular one of them) set out in Part II of the Second Schedule to the Trust Deed.
1. Promise to pay
Subject as provided in this Temporary Global Bond the Issuer promises to pay to the bearer the principal amount of this Temporary Global Bond (being at the date hereof Two Hundred Million Pounds Sterling ((pound)200,000,000)) on 4th February, 2028 (or on such earlier date as the said principal amount may become repayable in accordance with the Conditions or the Trust Deed) and to pay interest annually in arrear on 4th August on the principal amount from time to time of this Temporary Global Bond at the rate of 7.25 per cent. per annum, the first such payment to be made on 4th August, 1998 in respect of the period from (and including) 4th February, 1998 to (but excluding) 4th August, 1998. together with such other amounts (if any) as may be payable, all subject to and in accordance with the Conditions and the provisions of the Trust Deed.
2. Exchange for Permanent Global Bond and purchases
This Temporary Global Bond is exchangeable in whole or in part upon the
request of the bearer for a further global bond in respect of
(pound)200,000,000 aggregate principal amount or Bonds (the "Permanent
Global Bond") only on and subject to the terms and condition set out
below.
On and after 16th March, 1998 this Temporary Global Bond may be exchanged in whole or in part at the specified office of the Principal Paying Agent (or such other place as the Trustee may agree) for the Permanent Global Bond and the Issuer shall procure that the Principal Paying Agent shall issue and deliver, in full or partial exchange for this Temporary Global Bond, the Permanent Global Bond (or, as the case may be, endorse the Permanent Global Bond) in an aggregate principal amount equal to the principal amount of this Temporary Global Bond submitted for exchange Provided that if Definitive Bonds (together with the Coupons appertaining thereto) have already been issued in exchange for all the Bonds represented for the time being by the Permanent Global Bond, then this Temporary Global Bond may thereafter be exchanged only for Definitive Bonds (together with the Coupons appertaining thereto) and in such circumstances references herein to the Permanent Global Bond shall be construed accordingly and Provided further that the Permanent Global Bond shall be issued and delivered (or, as the case may be, endorsed) only if and to the extent that there shall have been presented to the Issuer a certificate from Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System ("Euroclear") or from Cedel Bank societe anonyme ("Cedel Bank") substantially in the form of the certificate attached as Exhibit A.
Any person who would, but for the provisions of this Temporary Global Bond, the Permanent Global Bond and the Trust Deed, otherwise be entitled to receive a Definitive Bond or Definitive Bonds shall not be entitled to require the exchange of an appropriate part of this Temporary Global Bond for a like part of the Permanent Global Bond unless and until he shall have delivered or caused to be delivered to Euroclear or Cedel Bank a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Cedel Bank in Luxembourg and the specified office of each of the Paying Agents).
Upon (i) any exchange of a part of this Temporary Global Bond for a like part of the Permanent Global Bond or (ii) the purchase by or on behalf of the Issuer, the Guarantor or any other Subsidiary of the Guarantor and cancellation of a part of this Temporary Global Bond in accordance with the Conditions, the portion of the principal amount hereof so exchanged or so purchased and cancelled shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part II of the Schedule hereto, whereupon the principal amount hereof shall be reduced for all purposes by the amount so exchanged or so purchased and cancelled and endorsed.
3. Payments
Until the entire principal amount of this Temporary Global Bond has been extinguished, this Temporary Global Bond shall in all respects be entitled to the same benefits as the Definitive Bonds and shall be entitled to the benefit of and be bound by the Trust Deed. except that the holder of this Temporary Global Bond shall not (unless upon due presentation of this Temporary Global Bond for exchange. issue and delivery (or, as the case may be. endorsement) of the Permanent Global Bond is improperly withheld or refused and such withholding or refusal
is continuing at the relevant payment date) be entitled (i) subject to
(ii) below to receive any payment of interest on this Temporary Global
Bond except upon certification as hereinafter provided or (ii) on and
after the Exchange Date, to receive any payment on the Permanent Global
Bond. Upon any payment of principal or interest on this Temporary
Global Bond the amount so paid shall be endorsed by or on behalf of the
Principal Paying Agent on behalf of the Issuer on Part I of the
Schedule hereto.
Payments of interest in respect of Bonds for the time being represented by this Temporary Global Bond shall be made to the bearer only upon presentation to the Issuer or its agent of a certificate from Euroclear or from Cedel Bank substantially in the form of the certificate attached as Exhibit A. Any person who would, but for the provisions of this Temporary Global Bond and of the Trust Deed, otherwise be beneficially entitled to a payment of interest on this Temporary Global Bond shall not be entitled to require such payment unless and until he shall have delivered or caused to be delivered to Euroclear or Cedel Bank a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Cedel Bank in Luxembourg and the specified office of each of the Paying Agents).
Upon any payment of principal and endorsement of such payment on Part I of the Schedule hereto, the principal amount of this Temporary Global Bond shall be reduced for all purposes by the principal amount so paid and endorsed.
All payments of any amounts payable and paid to the bearer of this Temporary Global Bond shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for the moneys payable hereon, on the Permanent Global Bond and on the relevant Definitive Bonds and Coupons.
4. Accountholders
For so long as all of the Bonds are represented by one or both of the Permanent Global Bond and this Temporary Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, each person who is for the time being shown in the records of Euroclear or Cedel Bank as the holder of a particular principal amount of such Bonds (each an "Accountholder") (in which regard any certificate or other document issued by Euroclear or Cedel Bank as to the principal amount of such Bonds standing to the account of any person shall be conclusive and binding for all purposes) shall be treated as the holder of such principal amount of such Bonds for all purposes (including for the purposes of any quorum requirements of, or the right to demand a poll at, meetings of the Bondholders) other than with respect to the payment of principal and interest on such Bonds, the right to which shall be vested, as against the Issuer, the Guarantor and the Trustee, solely in the bearer of the relevant Global Bond in accordance with and subject to its terms and the terms of the Trust Deed. Each Accountholder must look solely to Euroclear or Cedel Bank, as the case may be, for its share of each payment made to the bearer of the relevant Global Bond.
5. Notices
For so long as all of the Bonds are represented by one or both of the Permanent Global Bond and this Temporary Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank. notices to Bondholders may be given by delivery of the relevant notice to Euroclear and/or Cedel Bank (as the case may be) for communication to the relative Accountholders rather than by publication as required by Condition 15 provided that, so long as the Bonds are listed on the Luxembourg Stock Exchange, the Luxemboure Stock Exchange so agrees. Any
such notice shall be deemed to have been given to the Bondholders on the seventh day after the day on which such notice is delivered to Euroclear and/or Cedel Bank (as the case may be) as aforesaid.
6. Prescription
Claims against the Issuer and the Guarantor in respect of principal and interest on the Bonds represented by the Permanent Global Bond or this Temporary Global Bond will be prescribed after ten years (in the case of principal) and five years (in the case of interest) from the Relevant Date (as defined in Condition 9).
7. Call Option
For so long as all of the Bonds are represented by one or both of the Permanent Global Bond and/or this Temporary Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, no drawing of Bonds will be required under Condition 7(b) in the event that the Issuer exercises its call option pursuant to Condition 7(b) in respect of less than the aggregate principal amount of the Bonds outstanding at such time. In such event, the standard procedures of Euroclear and/or Cedel Bank shall operate to determine which interests in the Global Bond(s) are to be subject to such option.
8. Put Option
For so long as all of the Bonds are represented by one or both of the Permanent Global Bond and/or this Temporary Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, the option of the Bondholders provided for in Condition 8 may be exercised by the Accountholders giving a duly completed redemption notice in the form obtainable from any of the Paying Agents to the Principal Paying Agent of the principal amount of the Bonds in respect of which such option is exercised and at the same time presenting or procuring the presentation of this Temporary Global Bond to the Principal Paying Agent for notation accordingly within the time limits set forth in that Condition. Whilst all of the Bonds are represented by one or both of the Permanent Global Bond and this Temporary Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, redemption notices shall be given in accordance with the standard procedures of Euroclear and/or Cedel Bank.
9. Euroclear and Cedel Bank
References herein to Euroclear and/or Cedel Bank shall be deemed to include references to any other clearing system approved by the Trustee.
10. Authentication
This Temporary Global Bond shall not be or become valid or obligatory for any purpose unless and until authenticated by or on behalf of the Principal Paying Agent.
11. Governing law
This Temporary Global Bond is governed by, and shall be construed in accordance with, the laws of England.
IN WITNESS whereof the Issuer has caused this Temporary Global Bond to be signed manually by a person duly authorised on its behalf.
YORKSHIRE POWER FINANCE LIMITED
By: ____________________________
Duly authorised
Issued in London, England on 4th February, 1998.
Certificate of authentication
This Temporary Global Bond is duly authenticated (without recourse, warranty or liability).
Duly authorised
for and on behalf of
Union Bank of Switzerland
as Principal Paying Agent
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this Temporary Global Bond have been made:
Date Interest Principal Remaining principal Notation
made paid paid amount of this made on
Temporary Global behalf of
Bond following the Issuer
such payment
(pound) (pound) (pound)
|
PART II
EXCHANGES FOR PERMANENT GLOBAL BOND AND
PURCHASES AND CANCELLATIONS
The following exchanges of a part of this Temporary Global Bond for a like part of the Permanent Global Bond and/or purchases and cancellations of a part of this Temporary Global Bond have been made:
Date Part of principal Part of Aggregate principal Notation
made amount of this principal amount of this made on
Temporary amount of this Temporary behalf of
Global Bond Temporary Global Bond the Issuer
exchanged for Global Bond following such
a like part of purchased and exchange or purchase
the Permanent cancelled and cancellation
Global Bond
(pound) (pound) (pound)
|
EXHIBIT A
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000
7.25 per cent. Guaranteed Bonds due 2028
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Trust Deed, as of the date hereof, (pound)[ ] principal amount
of the above-captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then this is also to certify with respect to such principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organisations entitled to a portion of such principal amount, certifications with respect to such portion, substantially to the effect set forth in the Trust Deed.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
*Dated
[Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System] [Cedel Bank, societe anonyme]
By ______________________ Authorised Signatory
* To be dated no earlier than the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the Temporary Global Bond for the Permanent Global Bond.
EXHIBIT B
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000
7.25 per cent. Guaranteed Bonds due 2028
(the "Securities")
This is to certify that as of the date hereof. and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that (a)
are foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165 (j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
l.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is further to certify
that such financial institution has not acquired the Securities for the purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act"), then this
is also to certify that, except as set forth below (i) in the case of debt
securities, the Securities are beneficially owned by (a) non-U.S. person(s) or
(b) U.S. person(s) who purchased the Securities in transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (y)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to (pound)[ ] of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise off any rights or collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
*Dated
By _______________________
[Name of person giving certification] (As, or as agent for, the beneficial owner(s) of those of the Securities to which this certification relates)
* To be dated no earlier than the fifteenth day before the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the Temporary Global Bond for the Permanent Global Bond.
FORM OF ORIGINAL PERMANENT GLOBAL BOND
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS l65(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(Incorporated with limited liability under the laws of the Cayman Islands)
PERMANENT GLOBAL BOND
representing up to
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS DUE 2028
Unconditionally and irrevocably guaranteed as to payment of principal and interest by
YORKSHIRE POWER GROUP LIMITED
(Incorporated in England as a private company with limited liability under the Companies Act 1985 with registered number 3227432)
This Bond is a Permanent Global Bond without interest coupons in respect of a
duly authorised issue of Bonds of Yorkshire Power Finance Limited (the
"issuer"), designated as specified in the title hereof (the "Bonds"), limited to
the aggregate principal amount of up to Two Hundred Million Pounds Sterling
((pound)200,000,000) and constituted by a Trust Deed dated 4th February, 1998
(the "Trust Deed') between the Issuer, Yorkshire Power Group Limited as
guarantor (the "Guarantor") and Bankers Trustee Company Limited as trustee (the
trustee for the time being thereof being herein called the "Trustee").
References herein to the Conditions (or to any particular numbered Condition)
shall be to the Conditions (or that particular one of them) set out in Part II
of the Second Schedule to the Trust Deed. The aggregate principal amount from
time to time of this Permanent Global Bond shall be that amount not exceeding
(pound)200,000,000 as shall be shown by the latest entry duly made in the
Schedule hereto.
1. Promise to pay
Subject as provided in this Permanent Global Bond the Issuer promises to pay to the bearer the principal amount of this Permanent Global Bond on 4th August, 2028 (or on such earlier date as the said principal amount may become repayable in accordance with the Conditions or the Trust Deed) and to pay interest annually in arrear on 4th August on the principal amount from time to time of this Permanent Global Bond at the rate of 7.25 per cent. per annum, the first such payment to be made on 4th August, 1998 in respect of the period from (and including) 4th February, 1998 to (but excluding) 4th August, 1998, together with such other amounts (if any) as may be payable, all subject to and in accordance with the Conditions and the provisions of the Trust Deed.
2. Exchange for definitive Bonds and purchases
This Permanent Global Bond will be exchangeable in whole but not in
part (free of charge to the holder) for definitive Bonds only (i) upon
the happening of any of the events defined in the Trust Deed as "Events
of Default", (ii) if either Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") or
Cedel Bank. societe anonyme ("Cedel Bank") is closed for business for a
continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) or announces an intention permanently to cease
business or does in fact do so and no alternative clearing system
satisfactory to the Trustee is available, (iii) if as a result of any
such change or amendment as is referred to in Condition 7(c) which
becomes effective on or after 13th January, 1998, the Issuer or the
Guarantor or any Paying Agent is or will be required to make any
withholding or deduction from any payment in respect of the Bonds which
would not be required if the Bonds were in definitive form and a
certificate to such effect signed by two Directors of the Issuer is
given to the Trustee or (iv) upon the holder of this Permanent Global
Bond (acting on the instructions of (an) Accountholder(s) (as defined
below)) giving written notice to the Issuer requesting such exchange.
Thereupon (in the case of (i) and (ii) above) the holder of this
Permanent Global Bond (acting on the instructions of (an)
Accountholder(s)) may give notice to the Issuer, and (in the case of
(iii) above) the Issuer may give notice to the Trustee and the
Bondholders, of its intention to exchange this Permanent Global Bond
for definitive Bonds on or after the Exchange Date (as defined below).
On or after the Exchange Date the holder of this Permanent Global Bond
may or, in the case of (iii) above, shall surrender this Permanent
Global Bond to or to the order of the Principal Paying Agent. In
exchange for this Permanent Global. Bond the Issuer will deliver, or
procure the delivery of, definitive Bonds in bearer form, serially
numbered, in the denominations of (pound)1,000, (pound)10,000 and
(pound)100,000 each with interest coupons and one talon ("Coupons")
attached on issue in respect of interest which has not already been
paid on this Permanent Global Bond (in exchange for the whole of this
Permanent Global Bond).
"Exchange Date" means a day specified in the notice requiring exchange falling not less than 60 days after that on which such notice is given and on which banks are open for business in the city in which the specified office of the Principal Paying Agent is located and in the city in which the relevant clearing system is located.
Upon (i) any exchange of a part of the Temporary Global Bond for a part of this Permanent Global Bond or (ii) the purchase by or on behalf of the Issuer, the Guarantor or any other Subsidiary of the Guarantor and cancellation of a part of this Permanent Global Bond in accordance with the Conditions, the portion of the principal amount hereof so exchanged or so purchased and cancelled shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part II of the Schedule hereto, whereupon the principal amount hereof shall be increased or, as the case may be, reduced for all purposes by the amount so exchanged or so purchased and cancelled and endorsed. Upon the exchange of the whole of this Permanent Global Bond for definitive Bonds this Permanent Global Bond shall be surrendered to or to the order of the Principal Paying Agent and cancelled and, if the holder of this Permanent Global Bond requests, returned to it together with any relevant definitive Bonds.
3. Accountholders
For so long as all of the Bonds are represented by one or both of the Temporary Global Bond and this Permanent Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, each person who is for the time being shown in the records of Euroclear or
Cedel Bank as the holder of a particular principal amount of such Bonds (each an "Accountholder") (in which regard any certificate or other document issued by Euroclear or Cedel Bank as to the principal amount of such Bonds standing to the account of any person shall be conclusive and binding for all purposes) shall be treated as the holder of such principal amount of such Bonds for all purposes (including for the purposes of any quorum requirements of, or the right to demand a poll at, meetings of the Bondholders) other than with respect to the payment of principal and interest on such Bonds, the right to which shall be vested, as against the Issuer, the Guarantor and the Trustee, solely in the bearer of the relevant Global Bond in accordance with and subject to its terms and the terms of the Trust Deed. Each Accountholder must look solely to Euroclear or Cedel Bank, as the case may be, for its share of each payment made to the bearer of the relevant Global Bond.
4. Payments
Until the entire principal amount of this Permanent Global Bond has been extinguished, this Permanent Global Bond shall (subject as hereinafter and in the Trust Deed provided) in all respects be entitled to the same benefits as the definitive Bonds and shall be entitled to the benefit of and be bound by the Trust Deed. Payments of principal and interest in respect of Bonds represented by this Permanent Global Bond will be made against presentation for endorsement and, if no further payment falls to be made in respect of the Bonds, surrender of this Permanent Global Bond to the order of the Principal Paying Agent or such other Paying Agent as shall have been notified to the Bondholders for such purposes. Upon any payment of principal or interest on this Permanent Global Bond the amount so paid shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part I of the Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I of the Schedule hereto, the principal amount of this Permanent Gl6bal Bond shall be reduced for all purposes by the principal amount so paid and endorsed.
All payments of any amounts payable and paid to the bearer of this Permanent Global Bond shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for the moneys payable hereon and on the relevant definitive Bonds and Coupons.
5. Notices
For so long as all of the Bonds are represented by one or both of the Temporary Global Bond and this Permanent Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, notices to Bondholders may be given by delivery of the relevant notice to Euroclear and/or Cedel Bank (as the case may be) for communication to the relative Accountholders rather than by publication as required by Condition 15 provided that, so long as the Bonds are listed on the Luxembourg Stock Exchange, the Luxembourg Stock Exchange so agrees. Any such notice shall be deemed to have been given to the Bondholders on the seventh day after the day on which such notice is delivered to Euroclear and/or Cedel Bank (as the case may be) as aforesaid.
6. Prescription
Claims against the Issuer and the Guarantor in respect of principal and interest on the Bonds represented by the Temporary Global Bond or this Permanent Global Bond will be prescribed after ten years (in the case of principal) and five years (in the case of interest) from the Relevant Date (as defined in Condition 9).
7. Call Option
For so long as all of the Bonds are represented by one or both of the Temporary Global Bond and/or this Permanent Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, no drawing of Bonds will be required under Condition 7(b) in the event that the Issuer exercises its call option pursuant to Condition 7(b) in respect of less than the aggregate principal amount of the Bonds outstanding at such time. In such event, the standard procedures of Euroclear and/or Cedel Bank shall operate to determine which interests in the Global Bond(s) are to be subject to such option.
8. Put Option
For so long as all of the Bonds are represented by one or both of the Temporary Global Bond and this Permanent Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, the option of the Bondholders provided for in Condition 8 may be exercised by the Accountholders giving a duly completed redemption notice in the form obtainable from any of the Paying Agents to the Principal Paying Agent of the principal amount of the Bonds in respect of which such option is exercised and at the same time presenting or procuring the presentation of this Permanent Global Bond to the Principal Paying Agent for notation accordingly within the time limits set forth in that Condition. Whilst all of the Bonds are represented by one or both of the Temporary Global Bond and this Permanent Global Bond and such Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, redemption notices shall be given in accordance with the standard procedures of Euroclear and/or Cedel Bank.
9. Euroclear and Cedel Bank
References herein to Euroclear and/or Cedel Bank shall be deemed to include references to any other clearing system approved by the Trustee.
10 Authentication
This Permanent Global Bond shall not be or become valid or obligatory for any purpose unless and until authenticated by or on behalf of the Principal Paying Agent.
11. Governing law
This Permanent Global Bond is governed by, and shall be construed in accordance with, the laws of England.
IN WITNESS whereof the Issuer has caused this Permanent Global Bond to be signed manually or in facsimile by a person duly authorised on its behalf.
YORKSHIRE POWER FINANCE LIMITED
By: ________________________
(Duly authorised)
Issued in London, England on 4th February, 1998.
Certificate of authentication
This Permanent Global Bond is duly authenticated without recourse, warranty or liability.
Duly authorised
for and on behalf of
Union Bank of Switzerland
as Principal Paying Agent
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this Permanent Global Bond have been made:
Date Interest Principal Remaining principal Notation made on
made paid paid amount of this behalf of the Issuer
Permanent Global Bond
following such payment
(pound) (pound) (pound)
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PART II
EXCHANGES OF THE TEMPORARY GLOBAL BOND FOR THIS
PERMANENT GLOBAL BOND AND
PURCHASES AND CANCELLATIONS
The following exchanges of a part of the Temporary Global Bond for a like part of this Permanent Global Bond and purchases and cancellations of a part of this Permanent Global Bond have been made:
Date Part of principal Part of principal Aggregate Notation made
made amount of the amount of this principal on behalf of
Temporary Global Permanent Global amount of this the Issuer
Bond exchanged Bond purchased Permanent Global
for a like part cancelled Bond following
of this Permanent such purchase
Global Bond and cancellation
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(pound) (pound) (pound)
THE SECOND SCHEDULE
Part I
- FORM OF ORIGINAL BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
(pound)[1,000] [10,0001 [100,000] XS0083707884 [SERIES] [Serial No.]
YORKSHIRE POWER FINANCE LIMITED
(Incorporated with limited liability under the laws of the Cayman Islands)
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS DUE 2028
Unconditionally and irrevocably guaranteed as to payment of principal and interest by
YORKSHIRE POWER GROUP LIMITED
(Incorporated in England as a private company with limited liability under the Companies Act 1985 with registered number 3227432)
The issue of the Bonds was authorised by resolutions of the Board of Directors of Yorkshire Power Finance Limited (the "Issuer") passed on 5th January, 1998 and by resolutions of a duly authorised Committee of the Board of Directors of the Issuer passed on 22nd January, 1998 and the giving of the guarantee in respect of the Bonds was authorised by a resolution of the Board of Directors of Yorkshire Power Group Limited (the "Guarantor") passed on 2nd December, 1997.
This Bond forms one of a series of Bonds constituted by a Trust Deed (the "Trust
Deed") dated 4th February, 1998 made between the Issuer, the Guarantor and
Bankers Trustee Company Limited as trustee for the holders of the Bonds and
issued as bearer bonds in the denominations of (pound)1,000. (pound)10,000 and
(pound)100,000 each with Coupons and one Talon attached in an aggregate
principal amount of (pound)200,000,000.
The Issuer for value received and subject to and in accordance with the Conditions endorsed hereon hereby promises to pay to the bearer on 4th August. 2028 (or on such earlier date as the principal sum hereunder mentioned may become repayable in accordance with the said Conditions) the principal sum of:
(pound)[l,000] [l0.000] [100,000] ([One] [Ten] [One Hundred] Thousand Pounds Sterling)
together with interest on the said principal sum at the rate of 7.25 per cent. per annum payable annually in arrear on 4th August, the first such payment to be made on 4th August, 1998 in respect of the period from (and including) 4th February, 1998 to (but excluding) 4th August, 1998, and together with such other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
Neither this Bond nor the Coupons and Talon appertaining hereto shall be or become valid or obligatory for any purpose unless and until this Bond has been authenticated by or on behalf of the principal Paying Agent.
IN WITNESS whereof this Bond has been executed on behalf of the Issuer.
YORKSHIRE POWER FINANCE LIMITED
By: ________________________
Director
Dated as of 4th February, 1998.
Issued in London, England.
Certificate of authentication
This Bond is duly authenticated (without recourse, warranty or liability).
Duly authorised
for and on behalf of
Union Bank of Switzerland
as Principal Paying Agent
- FORM OF ORIGINAL COUPON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS DUE 2028
Coupon appertaining to a Bond in the denomination of (pound)[1,000] [10,000]
[100,000].
This Coupon is separately negotiable, [Coupon for
payable to bearer, and subject to the (pound)[36.25] [362.50] [3,625.00]
Conditions of the said Bonds due on
4th August, 1998]/
[Coupon for
(pound)[72.50] [725.00] [7,250.00] due
on 4th August, [1999/20[ ]]
|
[No.] (pound)[1,000] [10,000] [100,000] XS0083707884 [Series] [Serial No.]
- FORM OF ORIGINAL TALON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS DUE 2028
Talon appertaining to a Bond in the denomination of(pound)[l,000] [10,000]
[100,000]
On and after 4th August, [2008/2018] [ten/eleven] further Coupons [and a further Talon] will be issued at the specified office of any of the Paying Agents set out on the reverse hereof (and/or any other or further Paying Agents and/or specified offices as may from time to time be duly appointed and notified to the Bondholders) upon production and surrender of this Talon.
[No.] (pound)[l,000] [10,000] [100,000] XS0083707884 [Series] [Serial No.]
On the back of the Original Coupons and the Original Talons:
PRINCIPAL PAYING AGENT
Union Bank of Switzerland
100 Liverpool Street
London EC2M 2RH
PAYING AGENT
Banque Generale du Luxembourg S.A.
50 Avenue J.F. Kennedy
L-2951 Luxembourg
THE THIRD SCHEDULE
REGISTER AND TRANSFER OF REGISTERED SECURITIES
1. The Issuer shall at all times ensure that the Registrar maintains in London, or at such other place as the Trustee may agree, a register showing the amount of the Registered Securities from time to time outstanding and the dates of issue and all subsequent transfers and changes of ownership thereof and the names and addresses of the holders of the Registered Securities. The Trustee and the holders of the Registered Securities or any of them and any person authorised by it or any of them may at all reasonable times during office hours inspect the register and take copies of or extracts from it. The register may be closed by the Issuer for such periods at such times (not exceeding in total 30 days in any one year) as it may think fit.
2. Each Registered Security shall have an identifying certificate number which shall be entered on the register.
3. The Registered Securities are transferable by execution of the form of transfer endorsed thereon under the hand of the transferor or, where the transferor is a corporation, under its common seal or under the hand of two of its officers duly authorised in writing. In each case the signature(s) must be guaranteed by a commercial bank with a correspondent bank in New York City, Luxembourg or London or by an institution which is a member of The New York Stock Exchange or The American Stock Exchange in New York City or the Luxembourg Stock Exchange or The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited.
4. The Registered Securities to be transferred must be delivered for registration to the specified office of the Registrar or any Transfer Agent with the form of transfer endorsed thereon duly completed and executed and must be accompanied by such documents, evidence and information as may be required pursuant to the Conditions and such other evidence as the Issuer may reasonably require to prove the title of the transferor or his right to transfer the Registered Securities and, if the form of transfer is executed by some other person on his behalf or in the case of the execution of a form of transfer on behalf of a corporation by its officers, the authority of that person or those persons to do so.
5. The executors or administrators of a deceased holder of Registered Securities (not being one of several joint holders) and in the case of the death of one or more of several joint holders the survivor or survivors of such joint holders shall be the only person or persons recognised by the Issuer as having any title to such Registered Securities.
6. Any person becoming entitled to Registered Securities in consequence of the death or bankruptcy of the holder of such Registered Securities may upon producing such evidence that he holds the position in respect of which he proposes to act under this paragraph or of his title as the Issuer shall require be registered himself as the holder of such Registered Securities or, subject to the preceding paragraphs as to transfer, may transfer such Registered Securities. The Issuer shall be at liberty to retain any amount payable upon the Registered Securities to which any person is so entitled until such person shall be registered as aforesaid or shall duly transfer the Registered Securities.
7. Unless otherwise requested by him, the holder of Registered Securities of any series shall be entitled to receive only one Registered Security in respect of his entire holding of such series.
8. The joint holders of Registered Securities of any series shall be entitled to one Registered Security only in respect of their joint holding of such series which shall, except where they otherwise direct, be delivered to the joint holder whose name appears first in the register of the holders of Registered Securities in respect of such joint holding.
9. Where a holder of Registered Securities has transferred part only of his holding of any series there shall be delivered to him without charge a Registered Security in respect of the balance of such holding.
10. The Issuer shall make no charge to the Holders for the registration of any holding of Registered Securities or any transfer thereof or for the issue thereof or for the delivery thereof at the specified office of the Registrar or of any Transfer Agent or by post to the address specified by the Holder. if any Holder entitled to receive a Registered Security wishes to have the same delivered to him otherwise than at the specified office of the Registrar or of any Transfer Agent, such delivery shall be made, upon his written request to the Registrar or such Transfer Agent, at his risk and (except where sent by post to the address specified by the Holder) at his expense.
11. The holder of a Registered Security may (to the fullest extent permitted by applicable laws) be treated at all times, by all persons and for all purposes as the absolute owner of such Registered Security notwithstanding any notice any person may have of the right, title, interest or claim of any other person thereto. The Issuer, the Guarantor and the Trustee shall not be bound to see to the execu- tion of any trust to which any Registered Security may be subject and no notice of any trust shall be entered on the register. The holder of a Registered Security will be recognised by the Issuer and the Guarantor as entitled to his Registered Security free from any equity, set-off or counterclaim on the part of the issuer or the Guarantor against the original or any intermediate holder of such Registered Security.
THE FOURTH SCHEDULE
PROVISIONS FOR MEETINGS OF HOLDERS
1. (A) As used in this Schedule the following expressions shall have the following meanings unless the context otherwise requires:
(i) "voting certificate" shall mean an English language certificate issued by a Paying Agent and dated in which it is stated:
(a) that on the date thereof Bearer Securities (not being Bearer Securities in respect of -which a block voting instruction has been issued and is outstanding in respect of the meeting specified in such voting certificate or any adjourned such meeting) were deposited with such Paying Agent or (to the satisfaction of such Paying Agent) were held to its order or under its control and that no such Bearer Securities will cease to be so deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such certificate or, if later, of any adjourned such meeting; and
(2) the surrender of the certificate to the Paying Agent who issued the same; and
(b) that the bearer thereof is entitled to attend and vote at such meeting and any adjourned such meeting in respect of the Bearer Securities represented by such certificate;
(ii) "block voting instruction" shall mean an English language document issued by a Paying Agent and dated in which:
(a) it is certified that Bearer Securities (not being Bearer Securities in respect of which a voting certificate has been issued and is outstanding in respect of the meeting specified in such block voting instruction and any adjourned such meeting) have been deposited with such Paying Agent or (to the satisfaction of such Paying Agent) were held to its order or under its control and that no such Bearer Securities will cease to be so deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such document or, if later, of any adjourned such meeting; and
(2) the surrender to the Paying Agent not less than 48 hours before the time for which such meeting or any adjourned such meeting is convened of the receipt issued by such Paying Agent in respect of each such deposited Bearer Security which is to be released or (as the case may require) the Bearer Security or Bearer Securities ceasing with the agreement of the Paving Agent to be held to its order or under its control and the giving of notice by the Paying Agent to the Issuer in accordance with paragraph 17 hereof of the necessary amendment to the block voting instruction:
(b) it is certified that each holder of such Bearer Securities has instructed such Paying Agent that the vote(s) attributable to the Bearer Security or Bearer Securities so deposited or held should be cast in a particular way in relation to the resolution or resolutions to be put to such meeting or any adjourned such meeting and that all such instructions are during the period commencing 48 hours prior to the time for which such meeting or any adjourned such meeting is convened and ending at the con- clusion or adjournment thereof neither revocable nor capable of amendment;
(c) the aggregate principal amount of the Bearer Securities so deposited or held are listed distinguishing with regard to each such resolution between those, in respect of which instructions have been given as aforesaid that the votes attributable thereto should be cast in favour of the resolution and those in respect of which instructions have been so given that the votes attributable thereto should be cast against the resolution; and
(d) one or more persons named in such document (each hereinafter called a "proxy") is or are authorised and instructed by such Paying Agent to cast the votes attributable to the Bearer Securities so listed in accordance with the instructions referred to in (c) above as set out in such document;
(iii) "24 hours" shall mean a period of 24 hours including all or part of a day upon which banks are open for business in both the place where the relevant meeting is to be held and in each of the places where the Paying Agents have their specified offices (disregarding for this purpose the day upon which such meeting is to be held) and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of a day upon which banks are open for business in all of the places as aforesaid; and
(iv) "48 hours" shall mean a period of 48 hours including all or part of two days upon which banks are open for business both in the place where the relevant meeting is to be held and in each of the places where the Paying Agents have their specified offices (disregarding for this purpose the day upon which such meeting is to be held) and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of two days upon which banks are open for business in all of the places as aforesaid.
(B) A holder of a Bearer Security may obtain a voting certificate
in respect of such Bearer Security from a Paying Agent or
require a Paying Agent to issue a block voting instruction
in respect of such Bearer Security by depositing such
Bearer Security with such Paying Agent or (to the satis-
faction of such Paying Agent by such Bearer Security
being held to its order or under its control, in each case not
less than 48 hours before the time fixed for the relevant
meeting and on the terms set out in sub-paragraph (i)(a) or
(ii)(a) above (as the case may be), and (in the case of a
block voting instruction) instructing such Paying Agent
to the effect set out in sub-paragraph (ii)(b) above.
The holder of any voting certificate or the proxies named in any block voting instruction shall for all purposes in connection with the relevant meeting or adjourned meeting of Holders be deemed to be the holder of the Bearer Securities to which such voting certificate or block voting instruction relates and the Paying Agent with which such Bearer Securities have been deposited or the person holding the same to the order or under the control of such Paying Agent shall be deemed for such purposes not to be the holder of those Bearer Securities.
(C) (i) A holder of Registered Securities may, by an
instrument in writing in the English language (a
"form of proxy") signed by the holder or, in the case
of a corporation. executed under its common seal or
signed on its behalf by an attorney or a duly
authorised officer of the corporation and delivered
to the specified office of the Registrar not less
than 48 hours before the time fixed for the relevant
meeting, appoint any person (a "proxy") to act on his
or its behalf in connection with any meeting of the
Holders and any adjourned such meeting.
(ii) Any holder of Registered Securities which is a
corporation may by resolution of its directors or
other governing body authorise any person to act as
its representative (a "representative") in connection
with any meeting of the Holders and any adjourned
such meeting.
(iii) Any proxy appointed pursuant to sub-paragraph (i)
above or representative appointed pursuant to
sub-paragraph (ii) above shall so long as such
appointment remains in force be deemed, for all
purposes in connection with the relevant meeting or
adjourned meeting of the Holders, to be the holder of
the Registered Securities to which such appointment
relates and the holder of the Registered Securities
shall be deemed for such purposes not to be the
holder.
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2. The Issuer, the Guarantor or the Trustee may at any time and the Issuer shall upon a requisition in writing signed by the holders of not less than one-tenth in principal amount of the Securities of any series for the time being outstanding convene a meeting of the Holders and if the Issuer makes default for a period of seven days in convening such a meeting the same may be convened by the Trustee or the requisitionists. Every such meeting shall be held at such time and place as the Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is given and the day on which the meeting is to be held) specifying the place, day and hour of meeting shall be given to the Holders prior to any meeting of the Holders in the manner provided by Condition 15. Such notice, which shall be in the English language, shall state generally the nature of the business to be transacted at the meeting thereby convened but (except for an Extraordinary Resolution) it shall not be necessary to specify in such notice the terms of any resolution to be proposed. Such notice shall include statements, if applicable, to the effect that (i) Bearer Securities may, not less than 48 hours before the time fixed for the meeting, be deposited with Paying Agents or (to their satisfaction held to their order or under their control for the purpose of obtaining voting certificates or appointing proxies and (ii) the holders of Registered Securities may appoint proxies by executing and delivering a form of proxy in the English language to the specified office of the Registrar not less than 48 hours before the time fixed for the meeting or, in the case of corpora- tions, may appoint representatives by resolution of their directors or other governing body. A copy of the notice shall be sent by post to the Trustee (unless the meeting is convened by the Trustee), to the Issuer (unless the meeting is convened by the Issuer) and to the Guarantor (unless the meeting is convened by the Guarantor).
4. A person (who may but need not be a Holder) nominated in writing by the Trustee shall be entitled to take the chair at the relevant meeting or adjourned meeting but if no such nomination is made or if at any meeting or adjourned meeting the person nominated shall not be present within 15 minutes after the time appointed for holding the meeting or adjourned meeting the Holders present shall choose one of their number to be Chairman. The Chairman of an adjourned meeting need not be the same person as was Chairman of the meeting from which the adjournment took place.
5. At any such meeting one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than one-twentieth of the principal amount of the Securities for the time being outstanding shall (except for the purpose of passing an Extraordinary Resolution) form a quorum for the transaction of business and no business (other than the choosing of a Chairman) shall be transacted at any meeting unless the requisite quorum be present at the commencement of the relevant business. The quorum at any such meeting for passing an Extraordinary Resolution shall (subject as provided below) be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate a clear majority in principal amount of the Securities for the time being outstanding PROVIDED THAT at any meeting the business of which includes any of the following matters (each of which shall, subject only to Clause 19(B)(ii), only be capable of being effected after having been approved by Extraordinary Resolution) namely:
(i) reduction or cancellation of the amount payable or, where applicable, modification (except where such modification is, in the opinion of the Trustee, bound to result in an increase) of the method of calculating the amount payable or modification of the date of payment or, where applicable, of the method of calculating the date of payment in respect of any principal, premium or interest in respect of the Securities;
(ii) alteration of the currency in which payments under the Securities and Coupons are to be made;
(iii) alteration of the majority required to pass an Extraordinary Resolution;
(iv) the sanctioning of any such scheme or proposal as is described in paragraph 18(I) below; and
(v) alteration of this proviso or the proviso to paragraph 6 below;
the quorum shall be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than two-thirds of the principal amount of the Securities for the time being outstanding.
6. If within 15 minutes (or such longer period not exceeding 30 minutes as the Chairman may decide) after the time appointed for any such meeting a quorum is not present for the transaction of any particular business, then, subject and without prejudice to the transaction of the business (if any) for which a quorum is present, the meeting shall if convened upon the requisition of Holders be dissolved. In any other case it shall stand adjourned to the same day in the next week (or if such day is a public holiday the next succeeding business day) at the same time and place (except in the case of a meeting at which an Extraordinary Resolution is to be proposed in which case it shall stand adjourned for such period, being not less than 14 clear days nor more than 42 clear days, and to such place as may be appointed by the Chairman either at or subsequent to such meeting and approved by the Trustee). If within 15 minutes (or such
longer period not exceeding 30 minutes as the Chairman may decide) after the time appointed for any adjourned meeting a quorum is not present for the transaction of any particular business, then, subject and without prejudice to the transaction of the business (if any) for which a quorum is present, the Chairman may either (with the approval of the Trustee) dissolve such meeting or adjourn the same for such period, being not less than 14 clear days (but without any maximum number of clear days), and to such place as may be appointed by the Chairman either at or subsequent to such adjourned meeting and approved by the Trustee, and the provisions of this sentence shall apply to all further adjourned such meetings. At any adjourned meeting one or more persons present holding Securities or voting certificates or being proxies or representatives (whatever the principal amount of the Securities so held or represented by them) shall (subject as provided below) form a quorum and shall (subject as provided below) have power to pass any Extraordinary Resolution or other resolution and to decide upon all matters which could properly have been dealt with at the meeting from which the adjournment took place had the requisite quorum been present PROVIDED THAT at any adjourned meeting the quorum for the transaction of business comprising any of the matters specified in the proviso to paragraph 5 above shall be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than one-third of the principal amount of the Securities for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is to be submitted shall be given in the same manner as notice of an original meeting but as if 10 were substituted for 21 in paragraph 3 above and such notice shall state the relevant quorum. Subject as aforesaid it shall not be necessary to give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first instance by a show of hands and in case of equality of votes the Chairman shall both on a show of hands and on a poll have a casting vote in addition to the vote or votes (if any) to which he may be entitled as a Holder or as a holder of a voting certificate or as a proxy or as a representative.
9. At any meeting unless a poll is (before or on the declaration of the result of the show of hands) demanded by the Chairman, the Issuer, the Guarantor, the Trustee or any person present holding a Security or a voting certificate or being a proxy or representative (whatever the principal amount of the Securities so held or represented by him) a declaration by the Chairman that a resolution has been carried or carried by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so demanded it shall be taken in such manner and subject as hereinafter provided either at once or after an adjournment as the Chairman directs and the result of such pol1 shall be deemed to be the resolution of the meeting at which the poll was demanded as at the date of the taking of the poll. The demand for a poll shall not prevent the continuance of the meeting for the transaction of any business other than the motion on which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such meeting adjourn the same from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully (but for lack of required quorum) have been transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or on any question of adjournment shall be taken at the meeting without adjournment.
13. The Trustee and its lawyers and financial advisers and any director,
officer or employee of a corporation being a trustee of these presents
and any director or officer of the Issuer or the Guarantor and its
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lawyers and its accountants and financial advisers and any other person authorised so to do by the Trustee may attend and speak at any meeting. Save as aforesaid, but without prejudice to the proviso to the definition of "outstanding" in Clause 1, no person shall be entitled to attend and speak nor shall any person be entitled to vote at any meeting of the Holders or join with others in requesting the convening of such a meeting or to exercise the rights conferred on the Holders by Conditions 11 and 12 unless he either produces the Bearer Security or Bearer Securities of which he is the holder or a voting certificate or is a proxy or a representative or is the holder of a Registered Security or Registered Securities. No person shall be entitled to vote at any meeting in respect of Securities held by, for the benefit of, or on behalf of, the Issuer, the Guarantor, any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company. Nothing herein shall prevent any of the proxies named in any block voting instruction or form of proxy or any representative from being a director, officer or representative of or otherwise connected with the Issuer or the Guarantor.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and produces a Bearer Security or voting certificate or is a holder of Registered Securities or is a proxy or representative shall have one vote; and
(B) on a poll every person who is so present shall have one vote in respect of each (pound)1 or such other amount as the Trustee may in its absolute discretion stipulate (or, in the case of meetings of holders of Securities denominated in another currency, such amount in such other currency as the Trustee in its absolute discretion may stipulate) in principal amount of the Securities so produced or represented by the voting certificate so produced or in respect of which he is a proxy or representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any block voting instruction or form of proxy any person entitled to more than one vote need not use all his votes or cast all the votes to which he is entitled in the same way.
I5. In respect of Registered Securities, in the case of joint holders the vote or the senior who tenders a vote whether in person or by proxy shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority shall be determined by the order in which the names stand in the register of Holders as the Holders thereof.
16. The proxies named in any block voting instruction or form of proxy and representatives need not be Holders.
17. Each block voting instruction together (if so requested by the Trustee) with proof satisfactory to the Trustee of its due execution on behalf of the relevant Paying Agent and each form of proxy shall be deposited by the relevant Paying Agent or (as the case may be) by the Registrar at such place as the Trustee shall approve not less than 24 hours before the time appointed for holding the meeting or adjourned meeting at which the proxies named in the block voting
instruction or form of proxy propose to vote and in default the block voting instruction or form of proxy shall not be treated as valid unless the Chairman of the meeting decides otherwise before such meeting or adjourned meeting proceeds to business. A notarially certified copy of each block voting instruction and form of proxy shall be deposited with the Trustee before the commencement of the meeting or adjourned meeting but the Trustee shall not thereby be obliged to investigate or be concerned with the validity of or the authority of the proxies named in any such block voting instruction or form of proxy.
18. Any vote given in accordance with the terms of a block voting instruc- tion or form of proxy shall be valid notwithstanding the previous revocation or amendment of the block voting instruction or form of proxy or of any of the Holders' instructions pursuant to which it was executed provided that no intimation in writing of such revocation or amendment shall have been received from the relevant Paying Agent or in the case of a Registered Security from the holder thereof by the Issuer at its registered office (or such other place as may have been required or approved by the Trustee for the purpose) by the time being 24 hours and 48 hours respectively before the time appointed for holding the meeting or adjourned meeting at which the block voting instruction or form of proxy is to be used.
19. A meeting of the Holders shall in addition to the powers hereinbefore given have the following powers exercisable only by Extraordinary Resolution (subject to the provisions relating to quorum contained in paragraphs 5 and 6 above) namely:
(A) Power to sanction any compromise or arrangement proposed to be made between the Issuer, the Guarantor, the Trustee, any Appointee and the Holders and Couponholders or any of them.
(B) Power to sanction any abrogation, modification, compromise or arrangement in respect of the rights of the Trustee, any Appointee, the Holders, the Couponholders, the Issuer or the Guarantor against any other or others of them or against any of their property whether such rights shall arise under these presents or otherwise.
(C) Power to assent to any modification of the provisions of these presents which shall be proposed by the Issuer, the Guarantor, the Trustee or any Holder.
(D) Power to give any authority or sanction which under the provisions of these presents is required to be given by Extraordinary Resolution.
(E) Power to appoint any persons (whether Holders or not) as a committee or committees to represent the interests of the Holders and to confer upon such committee or committees any powers or discretions which the Holders could themselves exercise by Extraordinary Resolution.
(F) Power to approve of a person to be appointed a trustee and power to remove any trustee or trustees for the time being of these presents.
(G) Power to discharge or exonerate the Trustee and/or any Appointee from all liability in respect of any act or omission for which the Trustee and/or such Appointee may have become responsible under these presents.
(H) Power to authorise the Trustee and/or any Appointee to concur in and execute and do all such deeds, instruments, acts and things as may be necessary to carry out and give effect to any Extraordinary Resolution.
(I) Power to sanction any scheme or proposal for the exchange or sale of the Securities for or the conversion of the Securities into or the cancellation of the Securities in consideration of shares, stock, bonds, notes, debentures, debenture stock and/or other obligations and/or securities of the Issuer or any other company formed or to be formed, or for or into or in consideration of cash, or partly for or into or in consideration of such shares, stock, bonds, notes, debentures, debenture stock and/or other obligations and/or securities as aforesaid and partly for or into or in consideration of cash.
20. Any resolution passed at a meeting of the Holders duly convened and held in accordance with these presents shall be binding upon all the Holders whether present or not present at such meeting and whether or not voting and upon all Couponholders and each of them shall be bound to give effect thereto accordingly and the passing of any such resolution shall be conclusive evidence that the circumstances justify the passing thereof. Notice of the result of the voting on any resolution duly considered by the Holders shall be published in accordance with Condition 15 by the Issuer within 14 days of such result being known PROVIDED THAT the non-publication of such notice shall not invalidate such result.
21. The expression "Extraordinary Resolution" when used in these presents means a resolution passed at a meeting of the Holders duly convened and held in accordance with these presents by a majority consisting of not than three-fourths of the persons voting thereat upon a show of hands or if a poll is duly demanded by a majority consisting of not less than three-fourths of the votes cast on such poll.
22. Minutes of all resolutions and proceedings at every meeting of the Holders shall be made and entered in books to be from time to time provided for that purpose by the Issuer and any such Minutes as aforesaid if purporting to be signed by the Chairman of the meeting at which such resolutions were passed or proceedings transacted shall be conclusive evidence of the matters therein contained and until the contrary is proved every such meeting in respect of the proceedings of which Minutes have been made shall be deemed to have been duly held and convened and all resolutions passed or proceedings transacted thereat to have been duly passed or transacted.
23. (A) If and whenever the Issuer shall have issued and have outstanding Securities of more than one series the foregoing provisions of this Schedule shall have effect, subject to the following modifications:
(i) a resolution which in the opinion of the Trustee affects the Securities of only one series shall be deemed to have been duly passed if passed at a separate meeting of the holders of the Securities of that series;
(ii) a resolution which in the opinion of the Trustee affects the Securities of more than one series but does not give rise to a conflict of interest between the holders of Securities of any of the series so affected shall be deemed to have been duly passed if passed at a single meeting of the holders of the Securities of all the series so affected;
(iii) a resolution which in the opinion of the Trustee affects the Securities of more than one series and gives or may give rise to a conflict of interest between the holders of the Securities of one series or group of series so affected and the holders of the Securities of another series or group of series so affected shall be deemed to have been duly passed only if passed at separate meetings of the holders of the Securities of each series or group of series so affected; and
(iv) to all such meetings all the preceding provisions of this Schedule shall mutatis mutandis apply as though references therein to Securities, Holders and holders were references to the Securities of the series or group of series in question or to the holders of such Securities, as the case may be.
(B) If the Issuer shall have issued and have outstanding
Securities which are not denominated in pounds sterling, in
the case of any meeting of holders of Securities of more than
one currency the principal amount of such Securities shall
(i) for the purposes of paragraph 2 above be the equivalent
in pounds sterling at the spot rate of a bank nominated
by the Trustee for the conversion of the relevant currency
or currencies into pounds sterling on the seventh dealing day
prior to the day on which the requisition in writing is
received by the Issuer and (ii) for the purposes of paragraphs
5, 6 and 14 above (whether in respect of the meeting or any
adjourned such meeting or any poll resulting therefrom) be
the equivalent at such spot rate on the seventh dealing
day prior to the day of such meeting. In such circumstances,
on any poll each person present shall have one vote for each
(pound)1 (or such other pound sterling amount as the Trustee
may in its absolute discretion stipulate) in principal amount
of the Securities (converted as above) which he holds or
represents.
24. Subject to all other provisions of these presents the Trustee may without the consent of the Issuer, the Guarantor, the Holders or the Couponholders prescribe such further regulations regarding the requisitioning and/or the holding of meetings of Holders and attendance and voting thereat as the Trustee may in its sole discretion think fit.
EXECUTED as a deed ) by YORKSHIRE POWER FINANCE ) LIMITED, acting by A. DONNELLY ) A. DONNELLY acting under the authority ) of that Company, in the presence of: ) |
Witness's signature
Name M. R. CHEVASSUT
Address 1 ABBEY LANE, HEALAUGH
NORTH YORKSHIRE
Occupation BANKING AND RISK MANAGER
EXECUTED as a deed by )
YORKSHIRE POWER ) A. PENA
GROUP LIMITED ) director
acting by A. PENA )
and R. KELLY ) R. KELLY
director
THE COMMON SEAL of )
BANKERS TRUSTEE )
COMPANY LIMITED was ) [SEAL[
affixed to this deed in the )
presence of: )
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Director C. STRAKOSCH
Director M. JONES
EXHIBIT 10.75
C L I F F O R D LIMITED LIABILITY PARTNERSHIP
C H A N C E
CONFORMED COPY
DATED 1 OCTOBER 2001
YORKSHIRE POWER FINANCE LIMITED
as Issuer
- and -
YORKSHIRE POWER GROUP LIMITED
as Guarantor
- and -
BANKERS TRUSTEE COMPANY LIMITED
as Trustee
FIRST SUPPLEMENTAL TRUST DEED
relating to (pound)200,000,000 7.25 per cent.
Guaranteed Bonds due 2028
CONTENTS
Clause Page 1. Definitions And Interpretation 1 2. Representations And Warranties 2 3. Amendments To The Principal Trust Deed 2 4. Trust Deed 4 5. Conditions Precedent 4 6. Costs, Expenses And Indemnification 5 7. Further Assurance 5 8 Counterparts 5 9. Governing Law And Jurisdiction 5 10. Third Party Rights 6 Schedule 1 CONDITIONS OF THE ORIGINAL BONDS 7 Schedule 2 FORM OF NOTICE TO BONDHOLDERS 25 |
THIS FIRST SUPPLEMENTAL TRUST DEED is made on 1 October 2000
BETWEEN:
(1) YORKSHIRE POWER FINANCE LIMITED as Issuer ("YPFL" or the "Issuer");
(2) YORKSHIRE POWER GROUP LIMITED as Guarantor (the "Guarantor"); and
(3) BANKERS TRUSTEE COMPANY LIMITED (the "Trustee" which expression where the context so admits, includes all persons for the time being the trustee or trustees of this First Supplemental Trust Deed).
WHEREAS:
(A) YPFL has issued the Original Bonds constituted by a trust deed (the "Principal Trust Deed") dated 4 February 1998 made between the Issuer, the Guarantor and the Trustee.
(B) The parties hereto agree to enter into this First Supplemental Trust Deed to make certain amendments to the Conditions as a consequence of changes in the UK regulatory regime for the electricity sector under the Utilities Act 2000 (the "Regulatory Changes"), to make certain amendments to the Principal Trust Deed as a result of the coming into force of the Trustee Act 2000 and to make various miscellaneous amendments to the Conditions, pursuant to Condition 16(b) and Clause 19(B)(i) of the Principal Trust Deed.
NOW THIS DEED WITNESSETH and it is hereby agreed and declared as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this First Supplemental Trust Deed:
"Completion Date" means 1 October 2001 or such other date as the Trustee may agree by notice to the other parties hereto; and
"IFA" means an independent financial adviser, appointed pursuant to an engagement letter dated 28 September 2001; and
"Trust Deed" means the Principal Trust Deed as supplemented by this First Supplemental Trust Deed.
1.2 Principles of interpretation
In this First Supplemental Trust Deed:
1.2.1 Clauses and Schedules: any reference to a Schedule or a Clause
or sub-clause is, unless otherwise stated, to a schedule
hereto or a clause or sub-clause hereof respectively; and
1.2.2 Principal Trust Deed: save as herein otherwise provided, all
words and expressions defined in the Principal Trust Deed
shall where the context so requires and admits have the same
meaning in this First Supplemental Trust Deed and the
principles of interpretation specified in Clause 1(B) of the
Principal Trust Deed shall where the context so requires and
admits also apply to this First Supplemental Trust Deed.
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2. REPRESENTATIONS AND WARRANTIES
The Issuer and the Guarantor represent and warrant to the Trustee as follows:
2.1 The Issuer is duly incorporated under the laws of the Cayman Islands and the Guarantor is duly incorporated under the laws of England and each of the Issuer and the Guarantor has full power and capacity to execute and deliver this First Supplemental Trust Deed and to undertake and perform the obligations expressed to be assumed by it herein and has taken all necessary action to approve and authorise the same;
2.2 All authorisations, consents and approvals required by each of the Issuer and the Guarantor, for or in connection with the execution of this First Supplemental Trust Deed and the performance by the Issuer and the Guarantor of the respective obligations expressed to be undertaken by them herein have been obtained and are in full force and effect;
2.3 No Event of Default, and no condition, event, or act which, with the lapse of time and/or the giving of a notice and/or the issuing of any certificate, would be an Event of Default, has occurred or will occur on the Completion Date.
3. AMENDMENTS TO THE PRINCIPAL TRUST DEED
The Principal Trust Deed, with effect from the Completion Date, shall be amended as follows:
3.1 Part II of the Second Schedule shall be deleted and replaced by Schedule 1 hereto;
3.2 The definition of "Cedel" in Clause 1(A) shall be deleted and replaced with the following text:
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme, Luxembourg;";
3.3 The following text shall be inserted after the definition of "Coupons" in Clause 1(A):
"Distribution Licence" has the meaning set out in Condition 3;
"Distribution Subsidiary" has the meaning set out in Condition 3;
3.4 The definition of "Euroclear" in Clause 1(A) shall be deleted and replaced with the following text:
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear System;
3.5 The following text shall be inserted after the definition of "Liability" in Clause 1(A):
"London Stock Exchange" means the London Stock Exchange plc or any successor thereto;
3.6 The following text shall be inserted after the definition of "Trust Corporation" in Clause 1(A):
"UK Listing Authority" means the Financial Services Authority in its capacity as competent authority under the Financial Services Act 1986;
3.7 The definitions of "PES Licence" and "PES Subsidiary" in Clause 1(A) shall be deleted in their entirety;
3.8 In Clause 1(B), the following text shall be inserted after sub-clause (xi):
"(xii) All references in these presents to Securities being "listed" or "having a listing" shall, in relation to the London Stock Exchange, be construed to mean that such Securities have been admitted to the Official List by the UK Listing Authority and to trading on the London Stock Exchange's market for listed securities and all references in these presents to "listing" or "listed" shall include references to "quotation" and "quoted" respectively.
(xiii) All references in these presents to Euroclear and/or Clearstream, Luxembourg shall be deemed to include references to any other clearing system as is approved by the Trustee.
3.9 All references to "PES Licence" shall be deleted and replaced by "Distribution Licence" and all references to "PES Subsidiary" shall be deleted and replaced by "Distribution Subsidiary";
3.10 All references to "Trustee Act 1925" shall be deleted and replaced by "Trustee Act 1925 and Trustee Act 2000 (together the "Trustee Acts")";
and
3.11 All references to "Cedel Bank" shall be deleted and replaced by
"Clearstream, Luxembourg".
3
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3.12 Clause 16(D) shall be deleted and replaced with the following text:
"The Trustee may appoint and pay any person to act as a custodian or
nominee on any terms in relation to such assets of the trust as the
Trustee may determine, including for the purpose of depositing with a
custodian these presents or any document relating thereto and the
Trustee shall not be responsible for any loss, liability, expense,
demand, cost, claim or proceedings incurred by reason of the
misconduct, omission or default on the part of any person appointed by
it hereunder or be bound to supervise the proceedings or acts of any
such person; the Trustee is not obliged to appoint a custodian if the
Trustee invests in securities payable to bearer."
3.13 The following shall be inserted in the second line of Clause 16(S),
after the words "employ and pay an agent":
"on any terms"
3.14 The following shall be inserted as a new clause 16(U):
"Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Trustee in relation to the trusts constituted by these presents. Where
there are any inconsistencies between the Trustee Acts and the
provisions of these presents, the provisions of this Trust Deed shall,
to the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Act 2000, the provisions of these
presents shall constitute a restriction or exclusion for the purposes
of that Act."
3.15 The following shall be inserted as a new Clause 30:
"RIGHTS OF THIRD PARTIES
NO person shall have any right under the Contracts (Rights of Third
Parties Act 1999) to enforce any term of these presents, but this does
not affect any right or remedy of any third party which exists or is
available apart from that Act."
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4. TRUST DEED
4.1 With effect from the date of this First Supplemental Trust Deed, the Principal Trust Deed shall be amended to conform with the amendments contained herein. Thereafter, without prejudice to any existing rights and obligations, the Principal Trust Deed as so amended shall continue in full force and effect. Save as provided herein, the Principal Trust Deed shall be read and construed in conjunction as one document with this First Supplemental Trust Deed.
4.2 The Trustee agrees, pursuant to Clause 19(B)(i) of the Principal Trust Deed and based, in respect of the amendments consequent on the Regulatory Changes, on expert advice received from the IFA, that the amendments made by this First Supplemental Trust Deed are not materially prejudicial to the Holders and Couponholders and concurs with the amendments.
5. CONDITIONS PRECEDENT
5.1 Conditions Precedent
5.1.1 This First Supplemental Trust Deed shall only take effect on
the Completion Date upon the delivery to the Trustee of the
following documents in a form satisfactory to the Trustee:
(a) Supplemental Agency Agreement: a duly executed
supplemental agency agreement where each of the
Issuer and the Guarantor agrees to be bound by the
Agency Agreement insofar as it relates to the
Original Bonds;
(b) IFA's Certificate: a certificate dated on or before
the Completion Date from the IFA; and
(c) Notice to Bondholders: the notice to Bondholders
substantially in the form set out in Schedule 2 (the
"Notice to Bondholders").
5.1.2 The Issuer shall procure the publication of the Notice to
Bondholders in accordance with the Trust Deed as soon as
practicable after the Completion Date.
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5.2 The Trustee may in its discretion waive the delivery, or the form, of any of the documents referred to in Clause 5.1.1 of this First Supple- mental Trust Deed or any part of them.
6. COSTS, EXPENSES AND INDEMNIFICATION
6.1 The Issuer and the Guarantor shall, from time to time on demand of the Trustee, reimburse the Trustee for all proper costs and expenses (including legal fees) incurred by it in connection with the negotiation, preparation and execution or purported execution of this First Supplemental Trust Deed and the completion of the matters herein contemplated.
6.2 The Issuer and the Guarantor shall jointly and severally indemnify the Trustee and every attorney, manager, agent, delegate or other person properly appointed by it hereunder against any and all losses, liabilities, costs, claims, actions or demands incurred by it or him or which may be made against it or him as a result of or in connection with the execution or purported execution of this First Supplemental Trust Deed and the amendments hereby effected.
7. FURTHER ASSURANCE
The Issuer and the Guarantor jointly and severally undertake to the Trustee to execute all such other documents and comply with all such
other requirements to effect the amendments contemplated hereby and any other matter incidental thereto as the Trustee may direct in the interests of the Holders.
8. COUNTERPARTS
This First Supplemental Trust Deed may be executed in counterparts (and in engrossment, photocopy or facsimile form) and the executed documents shall, from the date on which all parties hereto have executed a counterpart hereof, be construed and have effect as though all such counterparts were one document executed by the parties hereto.
9. GOVERNING LAW AND JURISDICTION
9.1 This First Supplemental Trust Deed is governed by, and shall be construed in accordance with, the laws of England.
9.2 Clause 28 of the Principal Trust Deed shall apply, mutatis mutandis, to this First Supplemental Trust Deed as if set out herein in full.
10. THIRD PARTY RIGHTS
A person who is not party to this First Supplemental Trust Deed may not enforce any terms of this First Supplemental Trust Deed under the Contracts (Rights of Third Parties) Act 1999, but this does not affect any right or remedy of any third party which exists or is available apart from that Act.
IN WITNESS WHEREOF this First Supplemental Trust Deed has been executed as a deed by the parties hereto and is intended to be and is hereby delivered on the day first before written.
SCHEDULE 1
CONDITIONS OF THE ORIGINAL BONDS
The following is the text of the terms and conditions of the Bonds which (subject to amendment) will be endorsed on each Bond in definitive form:
The (pound)200,000,000 7.25 per cent. Guaranteed Bonds due 2028 (the "Bonds", which expression shall in these Terms and Conditions, unless the context otherwise requires, include any further bonds issued pursuant to Condition 18 and forming a single series with the Bonds) of Yorkshire Power Finance Limited (the "Issuer") are constituted by the trust deed dated 4th February, 1998 (the "Principal Trust Deed"), between the Issuer, Yorkshire Power Group Limited (the "Guarantor") and Bankers Trustee Company Limited (the "Trustee", which expression shall include any successor) as trustee for the Holders of the Bonds ("Bondholders") as supplemented by a first supplemental trust deed dated 1st October, 2001 (the "First Supplemental Trust Deed") made between the Issuer, the Guarantor and the Trustee. The Principal Trust Deed and the First Supplemental Trust Deed are together referred to as the "Trust Deed". The issue of the Bonds was authorised by resolutions of the board of directors of the Issuer passed on 5th January, 1998 and of a committee of the board of directors of the Issuer passed on 22nd January, 1998 and of the board of directors of the Issuer passed on 28th September, 2001 and, inter alia, the giving of the guarantee in respect of the Bonds (which is contained in the Trust Deed) was authorised by resolutions of the board of directors of the Guarantor passed on 2nd December, 1997 and on 28th September, 2001. The statements in these Terms and Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. The Bonds are also issued with the benefit of an agency agreement dated 4th February, 1998 (the "Principal Agency Agreement") made between the Issuer, the Guarantor, Union Bank of Switzerland as principal paying agent (the "Principal Paying Agent", which expression shall include any successor) and the other paying agent named therein (together with the Principal Paying Agent, the "Paying Agents", which expression shall include any additional or successor paying agents) and the Trustee, as supplemented by a first supplemental agency agreement dated 1st October, 2001 (the "Supplemental Agency Agreement") made between the Issuer, the Guarantor and the Paying Agents (including HSBC Bank plc as principal paying agent, being the successor to Morgan Guaranty Trust Company of New York, London office in that capacity). The Principal Agency Agreement and the Supplemental Agency Agreement are together referred to as the "Agency Agreement". Copies of the Trust Deed and the Agency Agreement are available for inspection during normal business hours by the Bondholders and the holders of the interest coupons appertaining to the Bonds (respectively, the "Couponholders" and the "Coupons") at the registered office for the time being of the Trustee, being at 1st October, 2001 at Winchester House, 1 Great Winchester Street, London EC2N 2DB, and at the specified office of each of the Paying Agents. The Bondholders and the Couponholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement. The Bonds will have talons for further Coupons ("Talons") attached on issue. Any reference herein to Coupons or coupons shall, unless the context otherwise requires, be deemed to include a reference to Talons or talons and the expression "Couponholders" shall, unless the context otherwise requires, include the holders of the Talons.
1. Form, Denominations and Title
The Bonds are in bearer form, serially numbered, in the denominations of (pound)1,000, (pound)10,000 and (pound)100,000 each with Coupons and Talons attached on issue. Title to the Bonds and to the Coupons and Talons will pass by delivery. Bonds of one denomination cannot be exchanged for Bonds of another denomination.
The Issuer, the Guarantor, any Paying Agent and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bond and the holder of any Coupon as the absolute owner for all purposes (whether or not the Bond or Coupon shall be overdue and notwithstanding any ownership or writing on the Bond or Coupon or any notice of previous loss or theft of the Bond or Coupon).
2. Status of the Bonds
The Bonds and the Coupons are direct, unconditional and, subject to the provisions of Condition 3, unsecured obligations of the Issuer and, subject as aforesaid, rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency, only to the extent permitted by the applicable laws relating to creditors' rights.
3. Negative Pledge
So long as any of the Bonds remains outstanding (as defined in the Trust Deed) the Issuer and the Guarantor will procure that no Relevant Indebtedness (as defined below) of the Issuer, the Guarantor, Yorkshire Electricity Group plc ("YEG") or any Distribution Subsidiary (as defined below) or of any other person and no guarantee by the Issuer, the Guarantor, YEG or any Distribution Subsidiary of any Relevant Indebtedness of any other person will be secured by a mortgage, charge, lien, pledge or other security interest (each a "Security Interest") upon, or with respect to, any of the present or future business, undertaking, assets or revenues (including any uncalled capital) of the Issuer, the Guarantor, YEG or any Distribution Subsidiary unless the Issuer and the Guarantor shall, before or at the same time as the creation of the Security Interest, take any and all action necessary to ensure that:
(i) all amounts payable by the Issuer under the Bonds, the Coupons and the Trust Deed, or by the Guarantor under the Guarantee (as defined below), are secured equally and rateably with the Relevant Indebtedness or guarantee, as the case may be, by the Security Interest to the satisfaction of the Trustee; or
(ii) such other Security Interest or guarantee or other arrangement
(whether or not including the giving of a Security Interest)
is provided in respect of all amounts payable by the Issuer
under the Bonds, the Coupons and the Trust Deed, or by the
Guarantor under the Guarantee, either (i) as the Trustee shall
in its absolute discretion deem not materially less beneficial
to the interests of the Bondholders or (ii) as shall be
approved by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders,
save that the Issuer, the Guarantor, YEG or any Distribution Subsidiary may create or have outstanding a Security Interest in respect of any of its Relevant Indebtedness and/or any guarantees given by the Issuer, the Guarantor, YEG or any Distribution Subsidiary in respect of any Relevant Indebtedness of any other person (without the obligation to provide a Security Interest or guarantee or other arrangement in respect of the Bonds, the Coupons and the Trust Deed as aforesaid) where such Relevant Indebtedness has an initial maturity falling not earlier than 4th August, 2028 and is of a maximum aggregate amount outstanding at any time not exceeding the greater of (pound)200,000,000 and 20 per cent. of the Capital and Reserves (as defined below).
For the purposes of these Terms and Conditions:
(a) "Capital and Reserves" means the aggregate of:
(i) the amount paid up or credited as paid up on the share capital of the Guarantor; and
(ii) the total of the capital, revaluation and revenue reserves of the Group, including any share premium account, capital redemption reserve and credit balance on the profit and loss account, but excluding sums set aside for taxation and amounts attributable to outside shareholders in Subsidiary Undertakings (as defined below) and deducting any debit balance on the profit and loss account,
all as shown in the then latest audited consolidated balance sheet of the Group prepared in accordance with the historical cost convention (as modified by the revaluation of certain fixed assets) for the purposes of the Companies Act 1985, but adjusted as may be necessary in respect of any variation in the paid up share capital or share premium account of the Guarantor since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiary Undertakings comprising the Group and/or as the Auditors (as defined in the Trust Deed) may consider appropriate.
A report by the Auditors as to the amount of the Capital and Reserves at any given time shall, in the absence of manifest error, be conclusive and binding on all parties;
(b) "Distribution Licence means the electricity distribution licence granted under section 6(1)(c) of the Electricity Act 1989, as amended by the Utilities Act 2000, to the Distribution Subsidiary (as defined below);
(c) "Distribution Subsidiary" means Yorkshire Electricity Distribution plc, as holder of the Distribution Licence, or any other Subsidiary of the Guarantor that holds the Distribution Licence from time to time;
(d) "Excluded Subsidiary" means any Subsidiary of the Guarantor (other than a Distribution Subsidiary):
(i) which is a single purpose company whose principal assets and business are constituted by the ownership, acquisition, development and/or operation of an asset;
(ii) none of whose indebtedness for borrowed money in respect of the financing of such ownership, acquisition, development and/or operation of an asset is subject to any recourse whatsoever to any member of the Group (other than another Excluded Subsidiary) in respect of the repayment thereof, except as expressly referred to in paragraph (g)(ii)(3); and
(iii) which has been designated as such by the Guarantor by written notice to the Trustee, provided that the Guarantor may give written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary, whereupon it shall cease to be an Excluded Subsidiary;
(e) "Group" means the Guarantor and the Subsidiary Undertakings;
(f) "indebtedness for borrowed money" means any present or future indebtedness (whether being principal, premium, interest or other amounts) for or in respect of (i) money borrowed, (ii) liabilities under or in respect of any acceptance or acceptance credit, or (iii) any notes, bonds, debentures, debenture stock, loan stock or other securities offered, issued or distributed whether by way of public offer, private placing, acquisition consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash;
(g) "Project Finance Indebtedness" means any indebtedness for borrowed money to finance the ownership, acquisition, development and/or operation of an asset:
(i) which is incurred by an Excluded Subsidiary; or
(ii) in respect of which the person or persons to whom any such indebtedness for borrowed money is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than an Excluded Subsidiary) for the repayment thereof other than:
(1) recourse to such borrower for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from such asset; and/or
(2) recourse to such borrower for the purpose
only of enabling amounts to be claimed in
respect of such indebtedness for borrowed
money in an enforcement of any encumbrance
given by such borrower over such asset or
the income, cash flow or other proceeds
deriving therefrom (or given by any
shareholder or the like in the borrower over
its shares or the like in the capital of the
borrower) to secure such indebtedness for
borrowed money, provided that (aa) the
extent of such recourse to such borrower is
limited solely to the amount of any
recoveries made on any such enforcement, and
(bb) such person or persons are not
entitled, by virtue of any right or claim
arising out of or in connection with such
indebtedness for borrowed money, to commence
proceedings for the winding up or
dissolution of the borrower or to appoint or
procure the appointment of any receiver,
trustee or similar person or officer in
respect of the borrower or any of its assets
(save for the assets the subject of such
encumbrance); and/or
(3) recourse to such borrower generally, or directly or indirectly to a member of the Group, under any form of assurance, undertaking or support, which recourse is limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for breach of an obligation (not being a payment obligation or an obligation to procure payment by another or an indemnity in respect thereof or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against whom such recourse is available;
(h) "Relevant Indebtedness" means any present or future indebtedness (whether being principal, premium, interest or other amounts) in the form of or represented by notes, bonds, debentures, debenture stock, loan stock or other securities, whether issued for cash or in whole or in part for a consideration other than cash, and which, with the agreement of the person issuing the same are quoted, listed or ordinarily dealt in on any stock exchange or recognised over-the-counter or other securities market, but shall in any event not include Project Finance Indebtedness;
(i) "Subsidiary" means a subsidiary within the meaning of Section 736 of the Companies Act 1985;
(j) "Subsidiary Undertaking" shall have the meaning given to it by
Section 258 of the Companies Act 1985 (but shall exclude any
undertakings (as defined in the Companies Act 1985) whose
accounts are not included in the then latest published audited
consolidated accounts of the Guarantor, nor (in the case of an
undertaking which has first become a subsidiary undertaking of
a member of the Group since the date as at which any such
audited accounts were prepared) would its accounts have been
so included or consolidated if it had become so on or before that date); and
(k) any reference to an obligation being guaranteed shall include a reference to an indemnity being given in respect of the obligation.
4. Guarantee
The Guarantor has in the Trust Deed unconditionally and irrevocably guaranteed the due payment of the principal and interest on the Bonds and all other moneys payable under the Trust Deed. Its obligations in that respect (the "Guarantee") constitute direct and, subject to Condition 3, unsecured and unsubordinated obligations of the Guarantor ranking, subject as aforesaid, pari passu and rateably with all its other unsecured and unsubordinated obligations present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors' rights.
5. Interest
The Bonds bear interest from (and including) 4th February, 1998 (the
"Closing Date") at the rate of 7.25 per cent. per annum, payable
annually in arrear on 4th August in each year (each an "Interest
Payment Date"), the first such payment being made on 4th August, 1998
in respect of the period from (and including) the Closing Date to (but
excluding) 4th August 1998. All amounts of interest will be rounded
upwards, if necessary, to the nearest penny. Accordingly, interest
payable on 4th August, 1998 will amount to (pound)36.25 per
(pound)1,000, (pound)362.50 per (pound)10,000 and (pound)3,625.00 per
(pound)100,000 respectively in principal amount of the Bonds.
Each Bond will cease to bear interest from its due date for redemption unless, upon presentation, payment of the principal in respect of the Bond is improperly withheld or refused or unless default is otherwise made in respect of such payment, in which event interest shall continue to accrue as provided in the Trust Deed.
When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of a 360 day year consisting of 12 months of 30 days each.
6. Payments
Payments of principal and interest in respect of each Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Bond, except that payments of interest due on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupons, in each case at the specified office of any of the Paying Agents.
Payments in respect of each Bond will be made at the specified office of any Paying Agent, at the option of the holder, by sterling cheque
drawn on, or by transfer to a sterling account maintained by the payee with, a bank in London, subject in all cases to any applicable fiscal or other laws and regulations, but without prejudice to the provisions of Condition 9.
Each Bond should be presented for payment together with all relative unmatured Coupons, failing which the full amount of any relative missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupon which the amount so paid bears to the total amount due) will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner mentioned above against presentation and surrender (or, in the case of part payment only, endorsement) of the relative missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 9) in respect of the relevant Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 10), or, if later, five years after the date on which the Coupon would have become due, but not thereafter.
A holder shall be entitled to present a Bond or Coupon for payment only on a Presentation Date and shall not be entitled to any further interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 10):
(i) is or falls after the relevant due date but, if the due date is not or was not a Business Day in London, is or falls after the next following such Business Day; and
(ii) is a Business Day in the place of the specified office of the Paying Agent at which the Bond or Coupon is presented for payment and, in the case of payment by transfer to a sterling account in London as referred to above, in London.
"Business Day" means, in relation to any place, a day on which commercial banks and foreign exchange markets settle payments in that place.
The names of the Paying Agents and their specified offices are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that it will at all times maintain at least two Paying Agents having specified offices in separate European cities approved by the Trustee, one of which, so long as the Bonds are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, shall be Luxembourg. Notice of any termination or appointment and of any changes in specified offices will be given to the bondholders promptly by the Issuer in accordance with Condition 15.
7. Redemption and Purchase
(a) Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Bonds at their principal amount on 4th August, 2028.
(b) The Issuer may, at any time, having given notice to the
Bondholders in accordance with this Condition 7(b) (which
notice shall be irrevocable), redeem the Bonds in whole or in
part (but if in part, in integral multiples of
(pound)1,000,000 in principal amount thereof), at the price
which shall be the higher of the following, together with
interest accrued up to the date of redemption:
(i) par; and
(ii) that price (the "Redemption Price"), expressed as a percentage rounded to three decimal places (0.0005 being rounded down), at which the Gross Redemption Yield on the Bonds, if they were to be purchased at such price on the third dealing day prior to the publication of the notice of redemption or, in the case of a partial redemption, the first notice of redemption referred to below, would be equal to the Gross Redemption Yield on such dealing day of the 7 1/4 per cent. Treasury Stock 2007 or of such other United Kingdom Government Stock as the Trustee, with the advice of three leading brokers operating in the gilt-edged market and/or gilt-edged market makers, shall determine to be appropriate (the "Reference Stock") on the basis of the middle market price of the Reference Stock prevailing on such dealing day, as determined by UBS Limited or its successors (or such other person(s) as the Trustee may approve).
The Gross Redemption Yield on the Bonds and the Reference Stock will be expressed as a percentage and will be calculated on the basis indicated by the Joint Index and Classification Committee of the Institute and Faculty of Actuaries as reported in the journal of the Institute of Actuaries, Vol. 105, Part I, 1978, page 18 or on such other basis as the Trustee may approve.
In the case of a partial redemption of Bonds, Bonds to be redeemed will be selected individually by lot in such place as the Trustee may approve and in such manner as the Trustee shall deem to be appropriate and fair without involving any part only of a Bond, not more than 65 days before the date fixed for redemption. In the case of a redemption of all of the Bonds pursuant to this Condition 7(b), notice will be given to the Bondholders by the Issuer in accordance with Condition 15 once not less than 30 nor more than 60 days before the date fixed for redemption. In the case of a partial redemption, notice will be so given twice, first not less than 80 nor more than 95 days, and secondly not less than 30 nor more than 60 days, before the date fixed for redemption. Each notice will specify the date fixed for redemption and the redemption price and, in the case of a partial redemption, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of Bonds previously called (in whole or in
part) for redemption and not presented for payment and the aggregate principal amount of the Bonds which will be outstanding after the partial redemption. In addition, in the case of a partial redemption, the second notice will specify the serial numbers of the Bonds called for redemption.
Upon the expiry of any such notice as is referred to above, the Issuer shall be bound to redeem the Bonds to which the notice refers at the relative redemption price applicable at the date of such redemption together with interest accrued to but excluding such date.
(c) If as a result of any change in, or amendment to, the laws or regulations of the Relevant Jurisdiction (as defined below), or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 13th January, 1998, either (I) the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 9 (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall accept such certificate and opinion as sufficient evidence thereof) of (i) a certificate signed by two directors of the Issuer on behalf of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer or, as the case may be, the Guarantor taking reasonable measures available to it and (ii) an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to whom the Trustee shall have no reasonable objection to the effect that such amendment or change has occurred (irrespective of whether such amendment or change is then effective)), or (2) the Guarantor would be unable for reasons outside its control to procure payment by the Issuer and in making payment itself would be required to pay additional amounts, the Issuer may at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 15 (which notice shall be irrevocable), redeem all the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 7(b) prior to any notice being given under this Condition 7(c)) but not some only, at their principal amount together with interest (if any) accrued to the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer or, as the case may be, the Guarantor would be required to pay such additional amounts were a payment in respect of the Bonds then due.
Upon the expiry of any such notice as is referred to above (and subject as provided above), the Issuer shall be bound to redeem the Bonds at their principal amount together with interest accrued to but excluding the redemption date.
In these Terms and Conditions "Relevant Jurisdiction" in relation to the Issuer or, as the case may be, the Guarantor means the jurisdiction in which the Issuer or, as the case may be, the Guarantor is generally resident for tax purposes (being, at the date of issue of the Bonds, the United Kingdom
in relation to both the Issuer and the Guarantor) and any political sub-division of, or authority in, or of, such jurisdiction having power to tax.
(d) The Issuer, the Guarantor or any of the Guarantor's other Subsidiaries may at any time purchase the Bonds in any manner and at any price. If purchases are made by tender, tenders must be available to all Bondholders alike.
(e) All Bonds which are redeemed by the Issuer will forthwith be cancelled (together with all relative unmatured Coupons attached to the Bonds or surrendered with the Bonds) and may not be reissued or resold. Bonds purchased by the Issuer, the Guarantor or any of the Guarantor's other Subsidiaries may be held or reissued or resold or surrendered for cancellation.
8. Redemption at the Option of Bondholders
(a) (i) If, at any time while any of the Bonds remains
outstanding, a Restructuring Event (as defined below)
occurs and prior to the commencement of or during the
Restructuring Period (as defined below) an
independent financial adviser (as defined below)
shall have certified in writing to the Trustee that
such Restructuring Event will not be or is not, in
its opinion, materially prejudicial to the interests
of the Bondholders, the following provisions of this
Condition 8 shall cease to have any further effect in
relation to such Restructuring Event.
(ii) If, at any time while any of the Bonds remains
outstanding, a Restructuring Event occurs and
(subject to Condition 8(a)(i)):
(A) within the Restructuring Period, either:
(1) if at the time such Restructuring
Event occurs there are Rated
Securities (as defined below), a
Rating Downgrade (as defined below)
in respect of such Restructuring
Event also occurs; or
(2) if at such time there are no Rated
Securities, a Negative Rating Event
(as defined below) also occurs; and
(B) an independent financial adviser shall have
certified in writing to the Trustee that
such Restructuring Event will be or is, in
its opinion, materially prejudicial to the
interests of the Bondholders (a "Negative
Certification"),
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then, unless at any time the Issuer shall have given a notice under Condition 7(b) in respect of the Bonds in whole or in part or Condition 7(c) in respect of all of the Bonds, in each case expiring prior to the Put Date (as defined below), the holder of each Bond will, upon the giving of a Put Event Notice (as defined below), have the option (the "Put Option") to require the Issuer to redeem or, at the option of the Issuer, purchase (or procure the purchase of) that Bond on the Put Date
at its principal amount together with (or, where purchased, together with an amount equal to) interest (if any) accrued to (but excluding) the Put Date.
A Restructuring Event shall be deemed not to be materially prejudicial to the interests of the Bondholders if, notwithstanding the occurrence of a Rating Downgrade, the rating assigned to the Rated Securities by any Rating Agency (as defined below) is subsequently increased to an investment grade rating (BBB-/Baa3 or their respective equivalents for the time being, or better) prior to any Negative Certification being issued.
Any certification by an independent financial adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event will be or is materially prejudicial to the interests of the Bondholders shall be conclusive and binding on the Trustee, the Issuer, the Guarantor and the Bondholders. For the purposes of this Condition 8, an "independent financial adviser" means a financial adviser appointed by the Issuer and the Guarantor and approved by the Trustee (such approval not to be unreasonably withheld or delayed) or, if the Issuer and the Guarantor shall not have appointed such an adviser within 21 days after becoming aware of the occurrence of such Restructuring Event and the Trustee is indemnified to its satisfaction against the costs of such adviser, appointed by the Trustee following consultation with the Issuer and the Guarantor.
(b) Promptly upon the Issuer becoming aware that a Put Event (as defined below) has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 15 specifying the nature of the Put Event and the procedure for exercising the Put Option.
(c) To exercise the Put Option, the holder of a Bond must deliver such Bond to the specified office of any Paying Agent, on a day which is a Business Day (as defined in Condition 6) in London and in the place of such specified office falling within the period (the "Put Period") of 45 days after that on which a Put Event Notice is given, accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of Paying Agent (a "Put Notice") and in which the holder may specify a bank account complying with the requirements of Condition 6 to which payment is to be made under this Condition 8. Each Bond should be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being the fifteenth day after the date of expiry of the Put Period, failing which an amount equal to the face value of any such missing Coupon will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner provided in Condition 6 against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant missing Coupon at any time before the expiry of 10 years after the Relevant Date in
respect of the relevant Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 10) or, if later, five years after the date on which such Coupon would have become due, but not thereafter. The Paying Agent to which such Bond and Put Notice are delivered shall issue to the bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly specifies a bank account in the Put Notice to which payment is to be made on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date in each case against presentation and surrender or (as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 6. A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 1, 10, 11, 12, 14 and 16 and for certain other purposes specified in the Trust Deed, receipts issued pursuant to this Condition 8 shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date unless previously redeemed or purchased.
(d) For the purposes of these Terms and Conditions:
(i) A "Negative Rating Event" shall be declared to have occurred if (A) the Issuer does not either prior to or not later than 14 days after the date of a Negative Certification in respect of the relevant Restructuring Event seek, and thereupon use all reasonable endeavours to obtain, a rating of the Bonds or any other unsecured and unsubordinated debt of the Issuer (or of any other Subsidiary of the Guarantor and which is guaranteed on an unsecured and unsubordinated basis by the Guarantor) having an initial maturity of five years or more from a Rating Agency or (B) it does so seek and use such endeavours, but is unable, as a result of such Restructuring Event, to obtain such a rating at least investment grade (BBB-/Baa3, or their respective equivalents for the time being).
(ii) A "Put Event" occurs on the date of the last to occur of (aa) a Restructuring Event, (bb) either a Rating Downgrade or, as the case may be, a Negative Rating Event and (cc) the relevant Negative Certification.
(iii) "Rating Agency" means Standard & Poor's Ratings Group or any of its successors or Moody's Investors Service or any of its successors or any rating agency substituted for either of them (or any permitted substitute of them) by the Issuer from time to time with the prior written approval of the Trustee (such approval not to be withheld or delayed).
(iv) A "Rating Downgrade" shall be deemed to have occurred in respect of a Restructuring Event if the then current client rating assigned to the Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of the Issuer or by its own volition) is withdrawn or reduced from an investment grade rating (BBB-/Baa3, or their
respective equivalents for the time being, or better)
to a non-investment grade rating (BB+/Ba1, or their
respective equivalents for the time being, or worse)
or, if the Rating Agency shall then have already
rated the Rated Securities below investment grade (as
described above), the rating is lowered one full
rating category.
(v) "Rated Securities" means the Bonds, if at any time
and for so long as they shall have a rating from a
Rating Agency, and otherwise any other unsecured and
unsubordinated debt of the Issuer (or of any other
Subsidiary of the Guarantor and which is guaranteed
on an unsecured and unsubordinated basis by the
Guarantor) having an initial maturity of five years
or more which is rated by a Rating Agency.
(vi) "Restructuring Event" means the occurrence of any one
or more of the following events:
(A) (aa) the Secretary of State for Trade and
Industry (or any successor) giving the
Distribution Subsidiary written notice of
revocation of the Distribution Licence or
(bb) the Distribution Subsidiary agreeing
in writing with the Secretary of State for
Trade and Industry (or any successor) to any
revocation or surrender of the Distribution
Licence or (cc) any legislation (whether
primary or subordinate) being enacted
terminating or revoking the Distribution
Licence, except in any such case in circum-
stances where a licence or licences on
substantially no less favourable terms is
or are granted to the Distribution
Subsidiary or another directly or indirectly
owned Subsidiary of the Guarantor; or
(B) any modification (other than a modification
which is of a formal, minor or technical
nature) being made to the terms and
conditions of the Distribution Licence on or
after 1st October, 2001 unless two directors
of the Guarantor or, with the consent of the
Trustee, of the Distribution Subsidiary have
certified in good faith to the Trustee that
the modified terms and conditions are not
materially less favourable to the business
of the Guarantor or the Distribution
Subsidiary, as the case may be; or
(C) any legislation (whether primary or sub-
ordinate) is enacted which removes,
qualifies or amends (other than an amend-
ment which is of a formal, minor or
technical nature) the duties of the
Secretary of State for Trade and Industry
(or any successor) and/or the Gas and
Electricity Markets Authority (or any
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successor) under Section 3 of the Electri- city Act 1989, as amended by the Utilities Act 2000, unless two directors of the Guarantor or, with the consent of the Trustee, of the Distribution Subsidiary have certified in good faith to the Trustee that such removal, qualification or amendment
does not have a materially adverse effect on the financial condition of the Guarantor or the Distribution Subsidiary, as the case may be.
(vii) "Restructuring Period" means:
(A) if at the time a Restructuring Event occurs there are Rated Securities, the period of 90 days starting from and including the day on which that Restructuring Event occurs; or
(B) if at the time a Restructuring Event occurs
there are no Rated Securities, the period
starting from and including the day on which
that Restructuring Event occurs and ending
on the day 90 days following the later of
(aa) the date on which the Issuer shall seek
to obtain a rating pursuant to Condition
8(d)(i) prior to the expiry of the 14 days
referred to in the definition of Negative
Rating Event and (bb) the date on which a
Negative Certification shall have been given
to the Issuer in respect of that
Restructuring Event.
(viii) A Rating Downgrade or a Negative Rating Event or a non-investment grade rating shall be deemed not to have occurred as a result or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating or, where applicable, declining to assign a rating of at least investment grade as provided in this Condition 8 does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstance comprised in or arising as a result of the applicable Restructuring Event.
The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and until it shall have actual knowledge or express notice pursuant to the Trust Deed to the contrary the Trustee may assume that no Restructuring Event, Negative Rating Event or other such event has occurred.
9. Taxation
All payments in respect of the Bonds or the Guarantee by the Issuer or, as the case may be, the Guarantor shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of the Relevant Jurisdiction unless the withholding or deduction of the Taxes is required by law. In that event, the Issuer or, as the case may be, the Guarantor will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been
receivable in respect of the Bonds or, as the case may be, Coupons in the absence of the withholding or deduction; except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
(a) to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of his having some connection with the Relevant Jurisdiction other than the mere holding of the Bond or Coupon; or
(b) where the Coupon is presented for payment in the Relevant Jurisdiction; or
(c) presented for payment more than 30 days after the Relevant Date except to the extent that a holder would have been entitled to additional amounts on presenting the same for payment on the last day of such period of 30 days; or
(d) to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority; or
(e) where the withholding or deduction is imposed on payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(f) presented for payment by or on behalf of a holder who would have been able to avoid the withholding or deduction by presenting the relevant Bond or Coupon to another Paying Agent in a Member State of the EU.
As used herein, "Relevant Date" means the date on which the payment first becomes due but, if the full amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 15.
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall be deemed also to refer to any additional amounts which may be payable under this Condition or under any undertakings given in addition to, or in substitution for, this Condition pursuant to the Trust Deed.
10. Prescription
Bonds and Coupons will become void unless presented for payment within periods of 10 years (in the case of principal) and five years (in the case of interest) from the Relevant Date in respect of the Bonds or, as the case may be, the Coupons, subject to the provisions of Condition 6.
11. Events of Default
The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding or if so directed by an Extraordinary Resolution of the Bondholders shall (but, in the case of the happening of any of the events mentioned in sub-paragraphs (b), (c), (e), (f), (g) and (h) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Bondholders and subject in each case to being indemnified by, or on behalf of, Bondholders to its satisfaction), give notice to the Issuer that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed) if any of the following events (each an "Event of Default") shall have occurred (unless such Event of Default has been remedied to the satisfaction of the Trustee):
(a) if default is made for a period of 14 days or more in the payment of any principal or the purchase price due in respect of any Bond pursuant to Condition 8 or 21 days or more in the payment of any interest due in respect of the Bonds or any of them; or
(b) if either the Issuer or the Guarantor fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer and the Guarantor in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation as is hereinafter mentioned will be required) such failure continues for the period of 60 days (or such longer period as the Trustee may in its absolute discretion permit) next following the service by the Trustee on the Issuer and the Guarantor of notice requiring the same to be remedied; or
(c) if (i) any other indebtedness for borrowed money of the Issuer, the Guarantor or any Principal Subsidiary becomes due and repayable prior to its stated maturity by reason of an event of default (howsoever described) or (ii) any such indebtedness for borrowed money is not paid when due or, as the case may be, within any applicable grace period (as originally provided) or (iii) the Issuer, the Guarantor or any Principal Subsidiary fails to pay when due (or, as the case may be, within any originally applicable grace period) any amount payable by it under any present or future guarantee for, or indemnity in respect of, any indebtedness for borrowed money of any person or (iv) any security given by the Issuer, the Guarantor or any Principal Subsidiary for any indebtedness for borrowed money of any person or any guarantee or indemnity of indebtedness for borrowed money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case where there is a bona fide dispute as to whether the relevant indebtedness for borrowed money or any such guarantee or indemnity as aforesaid shall be due and payable, provided that the aggregate amount of the relevant indebtedness for borrowed money in respect of
which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds whichever is the greater of(pound)20,000,000 or its equivalent in other currencies (as determined by the Trustee) or 2 per cent. of the Capital and Reserves, and for the purposes of this sub-paragraph (c), "indebtedness for borrowed money" shall exclude Project Finance Indebtedness; or
(d) if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer or the Guarantor save for the purposes of amalgamation, merger, consolidation, reorganization, reconstruction or other similar arrangement on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or
(e) if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of a Principal Subsidiary, save for the purposes of amalgamation, merger, consolidation, reorganization, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of such other Principal Subsidiary and under which all the surplus assets of such Principal Subsidiary are transferred to the Guarantor or any of its other Subsidiaries or (ii) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or
(f) if the Issuer, the Guarantor or any Principal Subsidiary shall
cease to carry on substantially the whole of its business,
save in each case for the purposes of amalgamation, merger,
consolidation, reorganization, reconstruction or other
similar arrangement (i) not involving or arising out of the
insolvency of the Issuer, the Guarantor or such Principal
Subsidiary and under which all or substantially all of its
assets are transferred to another member of the Group or
(ii) under which all or substantially all of its assets are
transferred to a third party or parties (whether associates
or not) for full consideration by the Issuer, the Guarantor
or a Principal Subsidiary on an arm's length basis or (iii)
where the transferee is or immediately upon such transfer
becomes a Principal Subsidiary or (iv) the terms of which
have previously been approved in writing by the Trustee or
by an Extraordinary Resolution of the Bondholders, provided
that if a Distribution Subsidiary shall cease to hold or
shall transfer the Distribution Licence, it shall be deemed
to have ceased to carry on the whole or substantially the
whole of its business (and none of exceptions (i) to (iii)
shall apply) unless the transferee is a Subsidiary of the
Guarantor; or
(g) if the Issuer, the Guarantor or any Principal Subsidiary shall suspend or shall threaten to suspend payment of its debts generally or shall be declared or adjudicated by a competent court to be unable, or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(l) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Section 1 of the Insolvency Act 1986; or
(h) if a receiver, administrative receiver, administrator or other similar official shall be appointed in relation to the Issuer, the Guarantor or any Principal Subsidiary or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or an encumbrancer shall take possession of, the whole or a substantial part of the assets of any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 90 days (or such longer period as the Trustee may in its absolute discretion permit); or
(i) if the Guarantor ceases to own directly or indirectly at least 51 per cent. of the ordinary share capital of YEG.
For the purposes of sub-paragraph (g) above, Section 123(l)(a) of the Insolvency Act 1986 shall have effect as if for "(pound)750" there was substituted "(pound)250,000" or such higher figure as the Gas and Electricity Markets Authority (or any successor) may from time to time determine by notice in writing to the Secretary of State for Trade and Industry (or any successor).
None of the Issuer, the Guarantor or any Principal Subsidiary shall be
deemed to be unable to pay its debts for the purposes of sub-paragraph
(g) above if any such demand as is mentioned in Section 123(1)(a) of
the Insolvency Act 1986 is being contested in good faith by the
relevant company with recourse to all appropriate measures and
procedures or if any such demand is satisfied before the expiration of
such period as may be stated in any notice given by the Trustee under
the first paragraph of this Condition 11.
For the purposes of these Terms and Conditions, a "Principal Subsidiary" at any time shall mean a Subsidiary of the Guarantor (other than the Issuer and not being an Excluded Subsidiary or any other Subsidiary of the Guarantor whose only indebtedness for borrowed money is Project Finance Indebtedness):
(A) whose (i) net profits before tax or (ii) gross assets represent 20 per cent. or more of the consolidated net profits before tax of the Group or consolidated gross assets of the Group respectively, in each case as calculated by reference to the then latest audited financial statements of such Subsidiary (consolidated in the case of a company which itself has Subsidiaries and which, in the normal course, prepares consolidated accounts) and the then latest audited consolidated financial statements of the Group; or
(B) to which is transferred all or substantially all of the business, undertaking and assets of a Subsidiary of the Guarantor which immediately prior to such transfer is a Principal Subsidiary, whereupon the transfer Subsidiary shall immediately cease to be a Principal Subsidiary and the transferee Subsidiary shall cease to be a Principal Subsidiary under the provisions of this sub-paragraph (B) (but without
prejudice to the provisions of sub-paragraph (A) above), upon publication of its next audited financial statements,
all as more fully defined in the Trust Deed.
A report by the Auditors that, in their opinion, a Subsidiary of the Guarantor is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties.
12. Enforcement
The Trustee may at any time, at its discretion and without notice, take
such proceedings against the Issuer or the Guarantor as it may think
fit to enforce the provisions of the Trust Deed, the Bonds and the
Coupons but it shall not be bound to take any proceedings or any other
action in relation to the Trust Deed, the Bonds or the Coupons unless
(a) it shall have been so directed by an Extraordinary Resolution of
the Bondholders or so requested in writing by the holders of at least
one-quarter in principal amount of the Bonds then outstanding, and (b)
it shall have been indemnified to its satisfaction. No Bondholder or
Couponholder shall be entitled to proceed directly against the Issuer
or the Guarantor unless the Trustee, having become bound so to proceed,
fails so to do within a reasonable period and such failure shall be
continuing.
13. Substitution
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer and the Guarantor to the substitution in place of the Issuer or the Guarantor (or, in either case, of any previous substitute under this Condition) as the principal debtor under or, as the case may be, guarantor in respect of the Bonds, the Coupons and the Trust Deed of any other Subsidiary of the Guarantor, subject to (a) the Bonds being unconditionally and irrevocably guaranteed by the Guarantor, (b) the Trustee being satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution and (c) certain other conditions set out in the Trust Deed being complied with.
14. Replacement of Bonds and Coupons
Should any Bond or Coupon be lost, stolen, mutilated, defaced or destroyed, it may be replaced at the specified office of the Principal Paying Agent (or such other Paying Agent as may be approved by the Trustee for such purpose) upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must be surrendered before replacements will be issued.
15. Notices
All notices to the Bondholders will be valid if published (i) in a leading English language daily newspaper published in London (which is expected to be the Financial Times) or such other English language daily newspaper with general circulation in Europe as the Trustee may approve and (ii) (so long as the Bonds are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require) in a leading newspaper having general circulation in Luxembourg which is expected to be the Luxemburger Wort. Any notice shall be deemed to have been given on the date of publication or, if so published and more than once, on the date of the first publication in both such newspapers. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may approve.
Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Bondholders in accordance with this Condition.
16. Meetings of Bondholders, Modification, Waiver and Authorisation
(a) The Trust Deed contains provisions for convening meetings of the Bondholders to consider any matter affecting their interests, including the modification by Extraordinary Resolution of these Terms and Conditions or the provisions of the Trust Deed. The quorum at any meeting for passing an Extraordinary Resolution will be one or more persons present holding or representing a clear majority in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting one or more persons present whatever the principal amount of the Bonds held or represented by him or them, except that at any meeting, the business of which includes the modification of certain of the provisions of these Terms and Conditions and certain of the provisions of the Trust Deed, the necessary quorum for passing an Extraordinary Resolution will be one or more persons present holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, of the principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of the Bondholders will be binding on all Bondholders, whether or not they are present at the meeting, and on all Couponholders.
(b) The Trustee may agree, without the consent of the Bondholders or Couponholders, to any modification (subject to certain exceptions) of, or to the waiver or authorisation of any breach or proposed breach of, any of these Terms and Conditions or any of the provisions of the Trust Deed which is not, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders or to any modification which is of a formal, minor or technical nature or to correct a manifest error.
(c) In connection with the exercise by it of any of its trusts, powers, authorities or discretions (including, without limitation, any modification, waiver, authorisation or substitution), the Trustee shall have regard to the interests of the Bondholders as a class and, in particular
but without limitation, shall not have regard to the consequences of the exercise of its trusts, powers, authorities or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders or Couponholders except to the extent already provided for in Condition 9 and/or any undertaking given in addition to, or in substitution for, Condition 9 pursuant to the Trust Deed.
(d) Any modification, waiver or authorisation shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 15.
17. Indemnification of the Trustee
The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified to its satisfaction.
18. Further Issues
The Issuer is at liberty from time to time without the consent of the Bondholders or Couponholders to create and issue further bonds or notes either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may determine at the time of the issue. Any further bonds or notes which are to form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed shall, and any other further bonds or notes, may (with the consent of the Trustee), be constituted by a deed supplemental to the Trust Deed. The Trust Deed contains provisions for convening a single meeting of the Bondholders and the holders of bonds or notes of other series in certain circumstances where the Trustee so decides.
19. Contracts (Rights of Third Parties) Act 1999
No rights are conferred on any person under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Bond, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
20. Governing Law
The Trust Deed, the Bonds and the Coupons are governed by, and will be construed in accordance with, English law.
SCHEDULE 2
FORM OF NOTICE TO BONDHOLDERS
NOTICE TO THE HOLDERS of the outstanding
(pound)200,000,000 7.25 per cent. Guaranteed Bonds due 2028
of
YORKSHIRE POWER FINANCE LIMITED
(Incorporated in the Cayman Islands with limited liability)
Unconditionally and irrevocably guaranteed by
YORKSHIRE POWER GROUP LIMITED
NOTICE IS HEREBY GIVEN to the holders (the "Bondholders") of the above-mentioned Bonds (the "Bonds") issued by Yorkshire Power Finance Limited (the "Issuer") and guaranteed by Yorkshire Power Group Limited (the "Guarantor") and notice is also hereby given to the holders (the "Couponholders") of the coupons, if any (the "Coupons"), relating to the Bonds that the terms and conditions and the trust deed dated 4th February, 1998 (the "Trust Deed") relating thereto were amended as from 1st October, 2001 (the "Effective Date") to (i) reflect certain changes to the terms and conditions arising from changes in the U.K. regulatory regime for the electricity sector under the Utilities Act 2000 (the "Regulatory Changes") and (ii) to make various miscellaneous amendments to the terms and conditions.
Bankers Trustee Company Limited (the "Trustee") is of the opinion, having received expert advice in respect of amendments consequent on the Regulatory Changes, that the amendments referred to above are not materially prejudicial to the interests of the Bondholders and the Couponholders and therefore by virtue of clause 19(B)(i) of the Trust Deed, the Trustee has approved the amendments referred to above.
The Bonds were issued subject to an agency agreement dated 4th February, 1998 (the "Agency Agreement"). The parties have entered into a supplemental agency agreement (the "Supplemental Agency Agreement ") dated the Effective Date.
The amendments referred to above were effected by a first supplemental trust deed dated on or about the Effective Date (the "First Supplemental Trust Deed"). Copies of the First Supplemental Trust Deed, the Supplemental Agency Agreement and a supplementary offering circular dated 28th September, 2001 are available for inspection during business hours at the offices of the Trustee, being at the date hereof at Winchester House, 1 Great Winchester Street, London, EC2N 2DB and at the specified offices of the Paying Agents as set out below.
Dated: 1st October, 2001
PAYING AGENTS
HSBC Bank plc Banque Generale du Luxembourg S.A.
Mariner House, Pepys Street 50, Avenue J.F. Kennedy
London EC3N 4DA L-2951 Luxembourg
EXECUTION CLAUSES:
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As Issuer:
Executed as a deed by YORKSHIRE POWER FINANCE LIMITED acting by:
/s/ Ken Linge
Acting under the authority of that company
in the presence of:
Name: /s/ Mark Whitehead
Address: 15 St Johns Terrace
East Boldon
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Occupation: Assistant Treasurer, Northern Electric
As Guarantor:
Executed as a deed by
YORKSHIRE POWER GROUP LIMITED
acting by:
/s/ John France Director /s/ J. Elliott Director/Secretary |
As Trustee:
The Common Seal of
BANKERS TRUSTEE COMPANY LIMITED
was affixed to this deed in the presence of:
/s/ John Wallace Director /s/ Aileen McCormack Associated Director |
EXHBIIT 10.76
CLIFFORD LIMITED LIABILITY PARTNERSHIP
CHANCE
CONFORMED COPY
DATED 1 OCTOBER 2001
YORKSHIRE ELECTRICITY DISTRIBUTION plc
as Substituted Issuer as of 1 October 2001
- and -
YORKSHIRE ELECTRICITY GROUP PLC
as Former Issuer and Guarantor
- and -
BANKERS TRUSTEE COMPANY LIMITED
as Trustee
THIRD SUPPLEMENTAL TRUST DEED
relating to (pound)200,000,000 9 1/4 per cent.
Bonds due 2020
CONTENTS
Clause Page 1. Definitions And Interpretation.............................................1 2. Representations And Warranties.............................................2 3. Amendments To The Principal Trust Deed.....................................2 4. Substituted Issuer And Guarantor...........................................3 5. Conditions Precedent.......................................................3 6. Costs, Expenses And Indemnification........................................4 7. Further Assurance..........................................................4 8. Counterparts...............................................................4 9. Governing Law And Jurisdiction.............................................5 10. Third Party Rights........................................................5 Schedule 1 AMENDED AND RESTATED TRUST DEED FOR 2020 BONDS.....................6 Schedule 2 LEGAL OPINION AS TO ENGLISH LAW...................................86 Schedule 3 FORM OF DIRECTOR'S CERTIFICATE....................................91 Schedule 4 FORM OF NOTICE TO BONDHOLDERS.....................................92 |
THIS THIRD SUPPLEMENTAL TRUST DEED is made on 1 October 2001
BETWEEN:
(1) YORKSHIRE ELECTRICITY DISTRIBUTION plc as substituted issuer as of 1 October 2001 (the "Substituted Issuer");
(2) YORKSHIRE ELECTRICITY GROUP plc as former issuer (in such capacity, the "Former Issuer") and as guarantor (in such capacity, the "Guarantor"); and
(3) BANKERS TRUSTEE COMPANY LIMITED (the "Trustee" which expression where the context so admits, includes all persons for the time being the trustee or trustees of this Third Supplemental Trust Deed).
WHEREAS:
(A) The Former Issuer has issued Original Bonds constituted by a trust deed (the "Principal Trust Deed") dated 17 January 1995 made between the Former Issuer and the Trustee.
(B) This Third Supplemental Trust Deed is supplemental to the Principal Trust Deed as modified by a first supplemental trust deed (the "First Supplemental Trust Deed") dated 27 July 1995 amending the terms of the Principal Trust Deed for the purposes of issuing further Bonds and for such purposes the Principal Trust Deed and the First Supplemental Trust Deed should be read and construed in conjunction as one deed. The parties to the Principal Trust Deed and the First Supplemental Trust Deed entered into a Second Supplemental Trust Deed (the "Second Supplemental Trust Deed") dated 19 September 1996 for the purposes of making certain amendments to the Principal Trust Deed.
(C) The parties hereto have agreed to amend and restate the Principal Trust Deed on the terms of this Third Supplemental trust deed (the "Third Supplemental Trust Deed") Set out in Schedule 1 hereof, (i) so as to incorporate all the amendments made by the Second Supplemental Trust Deed, (ii) as a consequence of changes in the UK regulatory regime for the electricity sector under the Utilities Act 2000, to provide for the substitution of the Substituted Issuer for the Former Issuer as issuer and the addition of the Guarantor pursuant to Condition 14 and Clause 20 of the Principal Trust and to make various other amendments (the "Regulatory Changes") and (iii) to make various miscellaneous amendments to the Conditions, pursuant to Condition 16(b) and Clause 18(B)(i) of the Principal Trust Deed.
NOW THIS DEED WITNESSETH and it is hereby agreed and declared as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Third Supplemental Trust Deed the following expressions have
the following meanings:
"IFA" means an independent financial advisor, appointed pursuant to an
engagement letter dated 28 September 2001; and
"Completion Date" means 1 October 2001 or such other date as the
Trustee may agree by notice to the other parties hereto.
1.2 Principles of interpretation
In this Third Supplemental Trust Deed:
1.2.1 Clauses and Schedules: any reference to a Schedule or a Clause or
sub-clause is, unless otherwise stated, to a schedule hereto or a
clause or sub-clause hereof respectively; and
1.2.2 Principal Trust Deed: save as herein otherwise provided, all Words and
expressions defined in the Principal Trust Deed shall where the context
so requires and admits have the same meaning in this Third Supplemental
Trust Deed and the principles of interpretation specified in Clause
1(B) of the Principal Trust Deed shall where the context so requires
and admits also apply to this Third Supplemental Trust Deed.
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2. REPRESENTATIONS AND WARRANTIES
The Former Issuer, the Substituted Issuer and the Guarantor, represent
and warrant to the Trustee as follows:
2.1 Each of the Former Issuer, the Substituted Issuer and the Guarantor is
duly incorporated under the laws of England and has full power and
capacity to execute and deliver this Third Supplemental Trust Deed and
to undertake and perform the Obligations expressed to be assumed by it
herein and has taken all necessary action to approve and authorise the
same;
2.2.1 All authorisations, consents and approvals required by each of the
Former Issuer, the Substituted Issuer and the Guarantor, for or in
connection with the execution of this Third Supplemental Trust Deed and
the performance by the Former Issuer, the Substituted Issuer and the
Guarantor of the respective obligations expressed to be undertaken by
them herein have been obtained and are in full force and effect;
2.3 No Event of Default, and no condition, event, or act which, with the
lapse of time and/or the giving of a notice and/or the issuing of any
certificate, would be an Event of Default, has occurred or will occur
on the Completion Date.
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3. AMENDMENTS TO THE PRINCIPAL TRUST DEED
3.1 The Principal Trust Deed, as supplemented by the Second Supplemental Trust Deed, with effect from the Completion Date, shall stand amended and restated in the form set out in Schedule 1.
3.2 The Principal Trust Deed, the Second Supplemental Trust Deed and this Third Supplemental Trust Deed shall be read and construed as one document.
3.3 The Trustee agrees, pursuant to Clause 18(b)(i) and Clause 20 of the Principal Trust Deed, and based, in respect of the amendments consequent on the Regulatory Changes, on expert advice received from the IFA, that the amendments made by this Third Supplemental Trust Deed are not materially prejudicial to the Holders and Couponholders and concurs with the amendments.
4. SUBSTITUTED ISSUER AND GUARANTOR
4.1 With effect as from the Completion Date, the Substituted Issuer shall observe and perform the obligations of the Former Issuer as issuer under the Principal Trust Deed and the Securities (including the Conditions endorsed thereon) as if it were and had been named as a party to the Principal Trust Deed and referred to in the Securities in place of the Former Issuer as issuer.
4.2 With effect as from the Completion Date, all the terms, provisions and conditions of the Principal Trust Deed and the Securities shall apply to the Substituted Issuer in all respects as if the Substituted Issuer had been the Issuer under the Principal Trust Deed and the Securities in place of the Former Issuer as issuer.
4.3 The Substituted Issuer hereby covenants with the Trustee that as from the Completion Date it will comply with, perform and observe all the provisions of the Principal Trust Deed and the Securities which are expressed to be binding on the Former Issuer as issuer.
4.4 The Guarantor hereby covenants with the Trustee that as from the Completion Date, in relation to the Securities, it will comply with and perform and observe all the obligations of the Third Supplemental Trust Deed and the Securities which are expressed to be binding on the Guarantor (as that term is defined in the Amended and Restated Trust Deed in Schedule 1).
5. CONDITIONS PRECEDENT
5.1 Conditions Precedent
5.1.1 This Third Supplemental Trust Deed shall only take effect on the
Completion Date upon the delivery to the Trustee of the following
documents in a form satisfactory to the Trustee:
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(a) Legal Opinion: opinion of Allen & Overy as to English law
substantially in the form set out in Schedule 2;
(b) Supplemental Agency Agreement: a duly executed supplemental
agency agreement where the Substituted Issuer agrees to be
bound by the Agency Agreement insofar as it relates to the
Original Bonds as if it had been a party thereto in place of
the Former Issuer and the Guarantor agrees to be bound by the
Agency Agreements insofar as it relates to the Original Bonds;
(c) IFA`s Certificate: a certificate dated on or before the
Completion Date from the IFA;
(d) Directors' Certificate: a certificate from two directors of
the Substituted Issuer substantially in the form set out in
Schedule 3; and
(e) Notice to Bondholders: the notice to Bondholders substantially
in the form set out in Schedule 4 ("Notice to Bondholders").
5.1.2 The Substituted Issuer shall procure the publication of the Notice to
Bondholders in accordance with the Third Supplemental Trust Deed as
soon as practicable after the Completion Date.
5.2 The Trustee may in its discretion waive the delivery, or the form, of
any of the documents referred to in Clause 5.1.1 of this Third
Supplemental Trust Deed or any part of them.
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6. COSTS, EXPENSES AND INDEMNIFICATION
6.1 The Substituted Issuer and the Guarantor shall, from time to time on demand of the Trustee, reimburse the Trustee for all proper costs and expenses (including legal fees) incurred by it in connection with the negotiation, preparation and execution or purported execution of this Third Supplemental Trust Deed and the completion of the matters herein contemplated.
6.2 The Substituted Issuer and the Guarantor shall jointly and severally indemnify the Trustee and every attorney, manager, agent, delegate or other person properly appointed by it hereunder against any and all losses, liabilities, costs, claims, actions or demands incurred by it or him or which may be made against it or him as a result of or in connection with the execution or purported execution of this Third Supplemental Trust Deed, the substitution of the Issuer, the addition of the Guarantor and the other amendments hereby effected.
7. FURTHER ASSURANCE
Each of the Former Issuer, the Substituted Issuer and the Guarantor undertake to the Trustee to execute all such other documents and comply
with all such other requirements to effect the substitution of the Substituted Issuer for the Former Issuer as issuer in relation to the Bonds and this Third Supplemental Trust Deed, the giving of the guarantee by the Guarantor, the other amendments contemplated hereby and any other matter incidental thereto as the Trustee may direct in the interests of the Holders.
8. COUNTERPARTS
This Third Supplemental Trust Deed may be executed in counterparts (and in engrossment, photocopy or facsimile form) and the executed documents shall, from the date on which all parties hereto have executed a counterpart hereof, be construed and have effect as though all such counterparts were one document executed by the parties hereto.
9. GOVERNING LAW AND JURISDICTION
9.1 This Third Supplemental Trust Deed is governed by, and shall be construed in accordance with, the laws of England.
9.2 Each of the Issuer, the Substituted Issuer and the Guarantor agrees for the benefit of the Trustee and the Holders that the courts of England shall have jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Third Supplemental Trust Deed or the Securities (respectively, "Proceedings" and "Disputes") and for such purposes, irrevocably submits to the jurisdiction of such courts. Each of the Former Issuer, the Substituted Issuer and the Guarantor irrevocably waives any objection which it might now or hereafter have to the courts of England being nominated as the forum to hear and determine any Proceedings and to settle any Disputes and agrees not to claim that any such court is not a convenient or appropriate forum. The submission to the jurisdiction of the courts of England shall not (and shall not be construed so as to) limit the right of the Trustee or any of the Holders to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.
10. THIRD PARTY RIGHTS
A person who is not party to this Third Supplemental Trust Deed may not enforce any terms of this Third Supplemental Trust Deed under the Contracts (Rights of Third Parties) Act 1999, but this does not affect any right or remedy of any third party which exists or is available apart from that Act.
IN WITNESS WHEREOF this Third Supplemental Trust Deed has been executed as a deed by the parties hereto and is intended to be and is hereby delivered on the day first before written.
SCHEDULE 1
AMENDED AND RESTATED TRUST DEED FOR 2020 BONDS
DATED 17TH JANUARY, 1995,
AS AMENDED AND RESTATED ON 1ST OCTOBER, 2001
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
- and -
YORKSHIRE ELECTRICITY GROUP plc
- and -
BANKERS TRUSTEE COMPANY LIMITED
TRUST DEED
constituting
(pound)200,000,000
9 1/4 percent. Guaranteed Bonds
due 2020
(with authority to issue further bonds or notes)
For the Issuer:
Allen & Overy
One New Change
London EC4M 9QQ
For the Trustee:
Clifford Chance
200 Aldersgate Street
London EC1A 7JJ
TABLE OF CONTENTS
Clause Page 1. Definitions .........................................................1 2. Covenant to Repay and to Pay Interest on Original Bonds..............8 3. Form and Issue of Original Bonds and Original Coupons...............11 4. Fees, Duties and Taxes..............................................12 5. Covenant of Compliance..............................................12 6. Cancellation of Securities and Records..............................13 7. Guarantee...........................................................14 8. Enforcement.........................................................16 9. Proceedings, Action and Indemnification.............................16 10. Application of Moneys...............................................16 11. Notice of Payments..................................................17 12. Investment by Trustee...............................................17 13 Partial Payments....................................................18 14 Covenants by the Issuer and the Guarantor...........................18 15 Remuneration and Indemnification of Trustee.........................22 16. Supplement of Trustee Acts..........................................23 17. Trustee's Liability.................................................26 18. Trustee Contracting with Issuer and the Guarantor...................26 19. Waiver, Authorisation and Determination.............................27 20. Holder of Definitive Bearer Security Assumed to be Couponholder.....27 21. Substitution........................................................28 22. Currency Indemnity..................................................29 23. New Trustee.........................................................29 24. Trustee's Retirement and Removal....................................30 25. Trustee's Powers to be Additional...................................30 26. Notices.............................................................31 27. Governing Law.......................................................31 28. Counterparts........................................................31 29. Contracts (Rights of Third Parties) Act 1999........................31 THE FIRST SCHEDULE...........................................................35 THE SECOND SCHEDULE..........................................................50 THE THIRD SCHEDULE...........................................................72 THE FOURTH SCHEDULE..........................................................74 THE FIFTH SCHEDULE...........................................................82 |
THIS TRUST DEED is made on 17th January, 1995 and amended and restated as of 1st October, 2001 BETWEEN:
(1) YORKSHIRE ELECTRICITY DISTRIBUTION PLC, a company incorporated under the laws of England, whose registered office is at Carliol House, Market Street, Newcastle-upon-Tyne NEl 6NE (the "Issuer");
(2) YORKSHIRE ELECTRICITY GROUP plc, a company incorporated under the laws of England, whose registered office is at Carliol House, Market Street, Newcastle-upon-Tyne NEl 6NE ("YEG" or, in its capacity as guarantor, the "Guarantor"); and
(3) BANKERS TRUSTEE COMPANY LIMITED, a company incorporated under the laws of England, whose registered office is at Winchester House, 1 Great Winchester Street, London EC2A 2DB (the "Trustee", which expression shall, wherever the context so admits, include such company and all other persons or companies for the time being the trustee or trustees of these presents) as trustee for the Holders and Couponholders (each as defined below).
WHEREAS:
(1) On 17th January, 1995 YEG issued(pound)200,000,000 9 1/4 per cent.
Bonds due 2020 (the "Bonds").
(2) The Bonds are constituted by a trust deed dated 17th January, 1995 (the "Principal Trust Deed") as supplemented by a second supplemental trust deed dated 19th September, 1996, both made between YEG and the Trustee, and as further supplemented by a third supplemental trust deed made between the parties hereto and dated the date of this Trust Deed.
(3) By a resolution of the Board of Directors of the Issuer passed on 28th September, 2001 the Issuer agreed to become the principal debtor in respect of the Bonds in substitution for YEG.
(4) By a resolution of the Board of Directors of the Guarantor passed on 4th June, 2001 the Guarantor agreed to guarantee the Bonds and to enter into certain covenants as set out in this Trust Deed.
(5) The Bonds in definitive form will be either in bearer form with Coupons attached or in registered form without Coupons but holders of definitive Bonds in bearer form will have the option to exchange such Bonds for definitive Bonds in registered form and vice versa, all upon and subject to the terms and conditions of these presents.
(6) The Trustee has agreed to act as trustee of these presents for the benefit of the Holders and Couponholders upon and subject to the terms and conditions of these presents.
NOW THIS TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows:
1. DEFINITIONS
(A) In these presents unless there is anything in the subject or context inconsistent therewith the following expressions shall have the following meanings:
"Agency Agreement" means, in relation to the Securities of any series, the agreement appointing the initial Paying Agents and, if applicable, Registrar and Transfer Agents in relation to such Securities and any other agreement for the time being in force appointing Successor paying agents and, if applicable, registrars or transfer agents in relation to such Securities, or in connection with their duties, the terms of which have previously been approved in writing by the Trustee, together with any agreement for the time being in force amending or modifying with the prior written approval of the Trustee any of the aforesaid agreements in relation to such Securities;
"Agent Bank" means, in relation to the Securities of any relevant series, the bank initially appointed as agent bank in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agent Bank Agreement or, if applicable, any Successor agent bank in relation to such Securities;
"Agent Bank Agreement" means, in relation to the Securities of any relevant series, the agreement (which may, but need not, be the relative Agency Agreement) appointing the initial Agent Bank in relation to such Securities and any other agreement for the time being in force appointing any Successor agent bank in relation to such Securities, or in connection with its duties, the terms of which have previously been approved in writing by the Trustee, together with any agreement for the time being in force amending or modifying with the prior written approval of the Trustee any of the aforesaid agreements in relation to such Securities;
"Appointee" means any attorney, manager, agent, delegate or other person appointed by the Trustee under these presents;
"Auditors" means the auditors for the time being of the Issuer or of the Guarantor (as the case may be) or, in the event of their being unable or unwilling promptly to carry out any action requested of them pursuant to the provisions of these presents, such other firm of accountants as may be nominated or approved by the Trustee for the purposes of these presents after consultation with the Issuer and the Guarantor where, in the opinion of the Trustee, such consultation is practicable;
"Bearer Securities" means those of the Securities which are for the time being in bearer form;
"Capital and Reserves" has the meaning set out in Condition 5;
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Conditions" means:
(i) in relation to the Original Bonds, the Conditions to be endorsed on the Original Bonds in definitive form in the form or substantially in the form set out in the Second Schedule as the same may from time to time be modified in accordance with these presents and any reference in these presents to a particular specified Condition or paragraph of a Condition shall in relation to the Original Bonds be construed accordingly; and
(ii) in relation to the Further Securities of any series, the Conditions to be endorsed on such Further Securities in definitive form in the form or substantially in the form set out or referred to in the supplemental Trust Deed relating thereto as the same may from time to time be modified in accordance with these presents and any reference in these presents to a particular specified Condition or paragraph of a Condition shall in relation to the Further Securities of any series, unless either referring specifically to a particular specified Condition or paragraph of a Condition of such Further Securities or the context otherwise requires, be construed as a reference to the provisions (if any) in the Conditions thereof which correspond to the provisions of the particular specified Condition or paragraph of a Condition of the Original Bonds;
"Couponholders" means the several persons who are for the time being holders of the Coupons;
"Coupons" means the bearer interest coupons appertaining to the Bearer Securities in definitive form or, as the context may require, a specific number thereof and includes any replacements for Coupons issued pursuant to Condition 15 and, where the context so permits, the Talons;
"Distribution Licence" has the meaning set out in Condition 5;
"Distribution Subsidiary" has the meaning set out in Condition 5;
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear System;
"Event of Default" means any of the conditions, events or acts provided in Condition 12 to be events upon the happening of which the Securities of any series would, subject only to notice by the Trustee as therein provided, become immediately due and repayable;
"Excluded Subsidiary" has the meaning set out in Condition 5;
"Extraordinary Resolution" has the meaning set out in paragraph 20 of the Fourth Schedule;
"Further Securities" means bonds or notes (whether in bearer or registered form) of the Issuer constituted by a trust deed supplemental to this Trust Deed pursuant to Clause 2(D) or the principal amount thereof for the time being outstanding or as the context may require a specific number thereof and includes any replacements for Further Securities issued pursuant to Condition 15 and where applicable any Global Security issued in respect thereof and, where the context requires or admits, includes the Receipts issued in respect of any Further Securities;
"Global Security" means the Original Global Bond and/or any other global bond or note issued in respect of the Further Securities of any series and includes any replacements for Global Securities issued pursuant to Condition 15;
"Holders" means the several persons who are for the time being holders of the Securities (being, in the case of Bearer Securities, the bearers thereof and, in the case of Registered Securities, the several persons whose names are entered in the register of holders of the Registered Securities as the holders thereof) and the words "holder" and "holders" and related expressions shall (where appropriate) be construed accordingly;
"indebtedness for borrowed money" has the meaning set out in Condition 5;
"Liability" means any loss, damage, cost, charge, claim, demand, expense, judgment, action, proceeding or other liability whatsoever (including, without limitation, in respect of taxes, duties, levies, imposts and other charges) and including any value added tax or similar tax charged or chargeable in respect thereof and legal fees and expenses on a full indemnity basis;
"London Stock Exchange" means the London Stock Exchange plc or any successor thereto;
"Original Bearer Bonds" means those of the Original Bonds which are for the time being in bearer form;
"Original Bondholders" means the several persons who are for the time being holders of the Original Bonds and, where the context so requires or admits, shall include the Original Receiptholders;
"Original Bonds" means the bonds (whether in bearer or registered form) comprising the said (pound)200,000,000 9 1/4 per cent. Guaranteed Bonds due 2020 hereby constituted or the principal amount thereof for the time being outstanding or, as the context may require, a specific number thereof and includes any replacements for Original Bonds issued pursuant to Condition 15, where the context so requires or admits any Original Receipts and (except for the purposes of Clause 3) the Original Global Bond;
"Original Couponholders" means the several persons who are for the time being holders of the Original Coupons;
"Original Coupons" means the Coupons appertaining to the Original Bearer Bonds;
"Original Global Bond" means the global bond in respect of the Original Bearer Bonds issued pursuant to Clause 3(A) in the form or substantially in the form set out in the Part I of the First Schedule;
"Original Receiptholders" means the holders of the Original Receipts;
"Original Receipts" means the Receipts appertaining to the Original Bonds;
"Original Registered Bonds" means those of the Original Bonds which are for the time being in registered form;
"Original Talons" means the Talons appertaining to the Original Bearer Bonds in definitive form;
"outstanding" means in relation to the Securities all the Securities issued other than:
(a) those Securities which have been redeemed pursuant to these presents;
(b) those Securities in respect of which the date for redemption in accordance with the Conditions has occurred and the redemption moneys (including premium (if any) and all interest payable thereon) have been duly paid to the Trustee or to the Principal Paying Agent in the manner provided in the Agency Agreement (and where appropriate notice to that effect has been given to the relative Holders in accordance with Condition 16) and remain available for payment against presentation of the relevant Securities and/or Coupons;
(c) those Securities which have been purchased and cancelled in accordance with Condition 8;
(d) those Securities which have become void under Condition 11;
(e) those mutilated or defaced Securities which have been surrendered and cancelled and in respect of which replacements have been issued pursuant to Condition 15;
(f) (for the purpose only of ascertaining the principal amount of the Securities outstanding and without prejudice to the status for any other purpose of the relevant Securities) those Securities which are alleged to have been lost, stolen or destroyed and in respect of which replacements have been issued pursuant to Condition 15;
(g) any Global Security to the extent that it shall have been exchanged for another Global Security in respect of the Securities of the relevant series or for the Securities of the relevant series in definitive form pursuant to its provisions; and
(h) those Bearer Securities which have been exchanged for Registered Securities (and, where applicable, vice versa) and which have been cancelled or, if permitted by the Conditions of such Securities, are for the time being retained by or on behalf of the Issuer, in each case pursuant to the provisions of these presents;
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Holders or any of them;
(ii) the determination of how many and which Securities are for the time being outstanding for the purposes of Clause 9(A), Conditions 12, 13 and 17 and paragraphs 2, 5, 6 and 9 of the Fourth Schedule;
(iii) any discretion, power or authority (whether contained in these presents or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them; and
(iv) the determination by the Trustee whether any event, circumstance, matter or thing is, in its opinion, materially prejudicial to the interests of the Holders or any of them,
those Securities (if any) which are for the time being held by, for the benefit of, or on behalf of, the Issuer, the Guarantor or any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company shall (unless and until ceasing to be so held) be deemed not to remain outstanding;
"Participating Securities" means Registered Securities comprised in or, as the case may be, comprising any series of Securities which are, for the time being, participating securities pursuant to the Regulations;
"Paying Agents" means, in relation to the Securities of any series, the several institutions (including where the context permits the Principal Paying Agent) at their respective specified offices initially appointed as paying agents in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agency Agreement and/or, if applicable, any Successor paying agents in relation to such Securities;
"Potential Event of Default" means any condition, event or act which, with the lapse of time and/or the issue, making or giving of any notice, certification, declaration, demand, determination and/or request and/or the taking of any similar action and/or the fulfilment of any similar condition, would constitute an Event of Default;
"Principal Paying Agent" means, in relation to the Securities of any
series, the institution at its specified office initially appointed as
principal paying agent in relation to such Securities by the Issuer and
the Guarantor pursuant to the relative Agency Agreement or, if
applicable, any Successor principal paying agent in relation to such
Securities;
"Project Finance Indebtedness" has the meaning set out in Condition 5;
"Receiptholders" means the holders of the Receipts;
"Receipts" means the non-transferable receipts (if any) for Securities to be issued by Paying Agents to the Holders pursuant to Condition 9(c);
"Redemption Date" means, in relation to Participating Securities, the due date for the redemption (in whole or in part) of the Participating Securities;
"Reference Banks" means, in relation to the Securities of any relevant series, the several banks initially appointed as reference banks in relation to such Securities by the Issuer and the Guarantor and referred to in the Conditions of such Securities and/or, if applicable, any Successor reference banks in relation to such Securities;
"Register" means, in relation to Participating Securities, the register referred to in Condition 7;
"Registered Securities" means those of the Securities which are for the time being in registered form;
"Registrar" means, in relation to the Securities of any relevant series (being, or which are exchangeable for, Registered Securities), the institution at its specified office initially appointed as registrar in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agency Agreement or, if applicable, any Successor registrar in relation to such Securities;
"Regulations" means the Uncertificated Securities Regulations 1995 (SI 1995 No. 95/3272) including any modification thereof or any regulations in substitution thereof made under Section 207 of the Companies Act 1989 and for the time being in force;
"Relevant Date" has the meaning set out in Condition 10;
"Relevant Indebtedness" has the meaning set out in Condition 5;
"repay", "redeem" and "pay" shall each include both the others and cognate expressions shall be construed accordingly;
"Restructuring Event" has the meaning set out in Condition 9(d)(vi);
"Security Interest" has the meaning set out in Condition 5;
"Securities" means, as the context may require, the Original Bonds and/or any Further Securities and/or any series thereof;
"Subsidiary" has the meaning set out in Condition 5;
"Successor" means, in relation to the Agent Bank, the Principal Paying Agent, the other Paying Agents, the Reference Banks, the Registrar and the Transfer Agents, any successor to any one or more of them in relation to the Securities of the relevant series which shall become such pursuant to the provisions of these presents, the relative Agent Bank Agreement and/or the relative Agency Agreement (as the case may be) and/or such other or further agent bank, principal paying agent, paying agents, reference banks, registrar and/or transfer agents (as the case may be) in relation to such Securities as may (with the prior approval of, and on terms previously approved by, the Trustee in writing) from time to time be appointed as such, and/or, if applicable, such other or further specified offices (in the former case being within the same city as those for which they are substituted) as may from time to time be nominated, in each case by the Issuer and, if applicable, the Guarantor, and (except in the case of the initial appointments and specified offices made under and specified in the Conditions, the relative Agent Bank Agreement and/or the relative Agency Agreement, as the case may be) notice of whose appointment or, as the case may be, nomination has been given to the relevant Holders pursuant to Clause 14(xiii) in accordance with Condition 16;
"Talons" means the talons appertaining to, and exchangeable in accordance with the provisions therein contained for further Coupons appertaining to, the Bearer Securities of any relevant series in definitive form and includes any replacements for Talons issued pursuant to Condition 15;
"The Stock Exchange" means, in relation to the Securities of any relevant series, the stock exchange or exchanges (if any) on which such Securities are quoted or listed on the issue thereof;
"these presents" means this Trust Deed and the Schedules and any Trust Deed supplemental hereto and the Schedules (if any) thereto and the Securities, the Coupons and the Conditions, all as from time to time modified in accordance with the provisions herein or therein contained;
"Transfer Agents" means, in relation to the Securities of any relevant series (being, or which are exchangeable for, Registered Securities), the institutions at their respective specified offices initially appointed as transfer agents in relation to such Securities by the Issuer and the Guarantor pursuant to the relative Agency Agreement and/or, if applicable, any Successor transfer agents in relation to such Securities;
"Trust Corporation" means a corporation entitled by rules made under the Public Trustee Act 1906 of Great Britain or entitled pursuant to any other comparable legislation applicable to a trustee in any other jurisdiction to carry out the functions of a custodian trustee;
"UK Listing Authority" means the Financial Services Authority in its capacity as competent authority under the Financial Services Act 1986;
words denoting the singular shall include the plural and vice versa;
words denoting one gender only shall include the other genders; and
words denoting persons only shall include firms and corporations and vice versa.
(B) (i) All references in these presents to principal and/or
premium and/or interest in respect of the Securities or to any
moneys payable by the Issuer and/or the Guarantor under these
presents shall be deemed to include a reference to any
additional amounts which may be payable under Condition 10 or,
if applicable, under any undertaking or covenant given
pursuant to Clause 14(xv) or Clause 21 (A)(2)(ii).
(ii) All references in these presents to principal or principal
amount shall, unless the context otherwise requires, be deemed
to include the Redemption Price (as defined in Condition 8).
(iii) All references in these presents to "pounds", "sterling",
"pounds sterling" or the sign "(pound)" shall be construed as
references to the lawful currency for the time being of the
United Kingdom.
(iv) All references in these presents to any statute or any
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provision of any statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under any such modification or re-enactment.
(v) All references in these presents to guarantees or to an obligation being guaranteed shall be deemed to include respectively references to indemnities or to an indemnity being given in respect thereof.
(vi) All references in these presents to any action, remedy or method of proceeding for the enforcement of the rights of creditors shall be deemed to include, in respect of any jurisdiction other than England, references to such action, remedy or method of proceeding for the enforcement of the rights of creditors available or appropriate in such jurisdiction as shall most nearly approximate to such action, remedy or method of proceeding described or referred to in these presents.
(vii) All references in these presents to taking proceedings against the Issuer or the Guarantor shall be deemed to include references to proving in the winding up of the Issuer and/or the Guarantor.
(viii) Wherever in these presents the Issuer or the Guarantor is required to give an opinion or make any determination, the Issuer or, as the case may be, the Guarantor shall, in so doing, be entitled to rely on advice from professional advisers but so that, as between the Issuer, the Guarantor,
the Trustee, the Holders and the Couponholders, the Issuer or, as the case may be, the Guarantor shall be liable as to the validity of such opinion or determination.
(ix) Unless the context otherwise requires words or expressions used in these presents hall bear the same meanings as in the Companies Act 1985 of Great Britain.
(x) In this Trust Deed references to Schedules, Clauses, sub-clauses, paragraphs and sub-paragraphs shall be construed as references to the Schedules to this Trust Deed and to the Clauses, sub-clauses, paragraphs and sub-paragraphs of this Trust Deed respectively.
(xi) In these presents, tables of contents and Clause headings are included for ease of reference and shall not affect the construction of these presents.
(xii) In these presents, words and expressions defined in the Regulations and not defined in these presents or in the Companies Act 1985 of Great Britain shall when used in these presents have the same meanings as are given to them in the Regulations.
(xiii) In these presents, references to any Registered Securities being in uncertificated form or in certificated form are references to those Registered Securities being an uncertificated unit or uncertificated units of the relevant Securities or a certificated unit or certificated units of the relevant Securities respectively.
(xiv) All references in these presents to Securities being "listed" or "having a listing" shall, in relation to the London Stock Exchange, be construed to mean that such Securities have been admitted to the Official List by the UK Listing Authority and to trading on the London Stock Exchange's market for listed securities and all references in these presents to "listing" or "listed" shall include references to "quotation" and "quoted", respectively.
(xv) All references in these presents to Euroclear and/or Clearstream, Luxembourg shall be deemed to include references to any other clearing system as is approved by the Trustee.
2. COVENANT TO REPAY AND TO PAY INTEREST ON ORIGINAL BONDS
(A) THE aggregate principal amount of the Original Bonds is limited to
(pound)200,000,000.
(B) The Issuer covenants with the Trustee that it will, in accordance with these presents, on the due date for the final maturity of the Original Bonds provided for in the Conditions, or on such earlier date as the same or any part thereof may become immediately due and repayable thereunder, pay or procure to be paid unconditionally to or to the order of the Trustee in pounds sterling in London in immediately available funds the principal amount of the Original Bonds repayable on that date and shall in the meantime and until such date (both before and after any judgment or other order of a court of competent jurisdiction) pay or procure to be paid
unconditionally to or to the order of the Trustee as aforesaid interest (which shall accrue from day to day) on the principal amount of the Original Bonds at the rate of 9 1/4 per cent. per annum payable (less tax, if appropriate) annually in arrear on 17th January, the first such payment to be made on 17th January, 1996 and to amount to a full year's interest PROVIDED THAT:
(i) every payment of principal or interest in respect of the Original Bearer Bonds and every payment of principal in respect of the Original Registered Bonds to or to the account of the Principal Paying Agent in the manner provided in the Agency Agreement shall operate in satisfaction pro tanto of the relative covenant by the Issuer in this Clause except to the extent that there is default in the subsequent payment thereof in accordance with the Conditions to the relevant Original Bondholders or Original Couponholders (as the case may be);
(ii) every payment of interest in respect of the Original Registered Bonds to the relevant Original Bondholders as provided in the Conditions (whether by the Issuer or the Registrar) shall operate in satisfaction pro tanto of the relative covenant by the Issuer in this Clause;
(iii) in any case where payment of principal is not made to the Trustee or the Principal Paying Agent on or before the due date, interest shall continue to accrue on the principal amount of the Original Bonds (both before and after any judgment or other order of a court of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) up to and including the date which the Trustee determines to be the date on and after which payment is to be made to the Original Bondholders in respect thereof as stated in a notice given to the Original Bondholders in accordance with Condition 16 (such date to be not later than 30 days after the day on which the whole of such principal amount, together with an amount equal to the interest which has accrued and is to accrue pursuant to this proviso up to and including that date, has been received by the Trustee or the Principal Paying Agent);
(iv) in any case where payment of the whole or any part of the principal amount of any Original Bond is improperly withheld or refused upon due presentation thereof (other than in circumstances contemplated by proviso (iii) above) interest shall accrue on that principal amount payment of which has been so withheld or refused (both before and after any judgment or other order of a court of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) from and including the date of such withholding or refusal up to and including the date on which, upon further presentation of the relevant Original Bond, payment of the full amount (including interest as aforesaid) in pounds sterling payable in respect of such Original Bond is made or (if earlier) the seventh day after notice is given to the relevant Original Bondholder (either individually or in accordance with Condition 16) that the full amount (including interest as aforesaid) in pounds sterling payable in provided that, upon further presentation thereof being duly made, such payment is made.
The Trustee will hold the benefit of this covenant on trust for the Original Bondholders and the Original Couponholders in accordance with these presents.
TRUSTEE'S REQUIREMENTS REGARDING PAYING AGENTS, REGISTRAR
AND TRANSFER AGENTS
(C) At any time after an Event of Default or a Potential Event of Default shall have occurred or the Securities shall otherwise have become due and repayable or the Trustee shall have received any money which it proposes to pay under Clause 10 to the Holders and/or Couponholders, the Trustee may:
(i) by notice in writing to the Issuer, the Guarantor, the Principal Paying Agent, the other Paying Agents, the Registrar and the Transfer Agents require the Principal Paying Agent, the other Paying Agents, the Registrar and the Transfer Agents pursuant to the Agency Agreement:
(a) to act thereafter as Principal Paying Agent, Paying Agents, Registrar and Transfer Agents respectively of the Trustee in relation to payments to be made by or on behalf of the Trustee under the provisions of these presents mutatis mutandis on the terms provided in the Agency Agreement (save that the Trustee's liability under any provisions thereof for the indemnification, remuneration and payment of out-of-pocket expenses of the Paying Agents, the Registrar and the Transfer Agents shall be limited to the amounts for the time being held by the Trustee on the trusts of these presents relating to the relative Securities) and thereafter to hold all Securities and Coupons and all sums, documents and records held by them in respect of Securities and Coupons on behalf of the Trustee; or
(b) to deliver up all Securities and Coupons and all sums, documents and records held by them in respect of Securities and Coupons to the Trustee or as the Trustee shall direct in such notice provided that such notice shall be deemed not to apply to any documents or records which the relative Paying Agent, the Registrar or the relative Transfer Agent, as the case may be, is obliged not to release by any law or regulation; and
(ii) by notice in writing to the Issuer and the Guarantor require each of them to make all subsequent payments in respect of the Securities and Coupons to or to the order of the Trustee and not to the Principal Paying Agent; with effect from the issue of any such notice to the Issuer and the Guarantor and until such notice is withdrawn provisos (i) and (ii) to sub-clause (B) of this Clause relating to the Original Bonds and any similar provisos relating to any Further Securities shall cease to have effect.
FURTHER ISSUES
(D) (i) The Issuer shall be at liberty from time to time (but
subject always to the provisions of these presents) without
the consent of the Holders or Couponholders to create and
issue further bonds or notes (whether in bearer or registered
form) either (a) ranking pari passu in all respects (or in all
respects save for the first payment of interest thereon), and
so that the same shall be consolidated and form a single
series, with the Original Bonds and/or the Further Securities
of any series or (b) upon such terms as to ranking, interest,
conversion, redemption and otherwise as the Issuer may at the
time of issue thereof determine.
(ii) Any further bonds or notes which are to be created and
issued pursuant to the provisions of paragraph (i) above so
as to form a single series with the Original Bonds and/or
the Further Securities of any series shall be constituted by
a trust deed supplemental to this Trust Deed and any other
further bonds or notes which are to be created and issued
pursuant to the provisions of paragraph (i) above may
(subject to the consent of the Trustee) be constituted by a
trust deed supplemental to this Trust Deed. In any such case
the Issuer and the Guarantor shall prior to the issue of any
further bonds or notes to be so constituted (being Further
Securities) execute and deliver to the Trustee a trust deed
supplemental to this Trust Deed (in relation to which all
applicable stamp duties or other documentation fees, duties
or taxes have been paid and, if applicable, duly stamped or
denoted accordingly) and containing a covenant by the Issuer
in the form mutatis mutandis of Clause 2(B) in relation to
the principal, premium (if any) and interest in respect of
such Further Securities and such other provisions (whether
or not corresponding to any of the provisions contained in
this Trust Deed) as the Trustee shall require.
(iii) A memorandum of every such supplemental Trust Deed shall be
endorsed by the Trustee on this Trust Deed and by the Issuer
and the Guarantor on their duplicates of this Trust Deed.
(iv) Whenever it is proposed to create and issue any Further
Securities the Issuer shall give to the Trustee not less than
14 days' notice in writing of its intention so to do stating
the amount of further bonds or notes proposed to be created
and issued.
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(E) Any Further Securities not forming a single series with the Original Bonds or Further Securities of any series shall form a separate series and accordingly, unless for any purpose the Trustee in its absolute discretion shall otherwise determine, the provisions of sub-clause (C) of this Clause and of Clauses 4 to 22 (both inclusive) and 23(B) and the Third and Fourth Schedules shall apply mutatis mutandis separately and independently to each series of the Securities and in such Clauses and Schedules the expressions "Securities", "Holders", "Coupons", "Couponholders", "Receipts", "Receiptholders" and "Talons" shall be construed accordingly.
3. FORM AND ISSUE OF ORIGINAL BONDS AND ORIGINAL COUPONS
(A) THE Original Bearer Bonds were represented initially by the Original Global Bond which the Issuer issued to a bank depositary common to both Euroclear and Clearstream, Luxembourg on terms that such
depositary held the same for the account of the persons who would otherwise be entitled to receive the Original Bearer Bonds in definitive form ("Definitive Original Bearer Bonds") (as notified to such depositary by UBS Limited on behalf of the managers of the issue of the Original Bonds) and the successors in title to such persons as appearing in the records of Euroclear and Clearstream, Luxembourg for the time being. The Original Global Bond was in the aggregate principal amount of (pound)187,500,000 and was exchangeable for Definitive Original Bearer Bonds in accordance with the provisions of the Original Global Bond.
(B) The Original Global Bond was printed or typed in the form or substan- tially in the form set out in Part I of the First Schedule. The Original Global Bond was signed manually by a person duly authorised by YEG on behalf of YEG and was authenticated by or on behalf of the Principal Paying Agent. The Original Global Bond so executed and authenticated shall be a binding and valid obligation of the Issuer.
(C) YEG issued the Definitive Original Bearer Bonds (together with the unmatured Original Coupons attached) in exchange for the Original Global Bond in accordance with the provisions thereof.
(D) (i) The Definitive Original Bearer Bonds and the Original
Coupons are to bearer in the respective forms or substantially
in the respective forms set out in Part I of the Second
Schedule to the Principal Trust Deed (subject to sub-clause
3(D)(iii) below) and the Definitive Original Bearer Bonds are
issued in the denominations of (pound)1,000, (pound)10,000 and
(pound)100,000 each (serially numbered) and are endorsed with
the Conditions. Title to the Definitive Original Bearer Bonds
and the Original Coupons shall pass by delivery.
(ii) The Original Registered Bonds are in definitive registered
form, are in the form or substantially in the form set out in
Part II of the Second Schedule to the Principal Trust Deed
(subject to sub-clause 3(D)(iii) below), are in the
denomination and transferable in units of (pound)1 each or
integral multiples thereof and are endorsed with the
Conditions. Title to the Original Registered Bonds shall pass
upon the registration of transfers in respect thereof in
accordance with the provisions of these presents.
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(iii) Definitive Original Bearer Bonds or Original Registered Bonds in issue at 1st October, 2001, as well as any Definitive Original Bearer Bonds or Original Registered Bonds issued in replacement thereof pursuant to Condition 15, shall be deemed to be in the form of, and shall bear the rights and obligations set out in Part II or III, as the case may be, of the First Schedule and the Conditions set out in the Second Schedule, notwithstanding that the Definitive Original Bearer Bonds or Original Registered Bonds may be in the forms of Part I or Part II, as the case may be, of the Second Schedule to the Principal Trust Deed and may have endorsed thereon the Conditions in the form set out in Part III of the Second Schedule to the Principal Trust Deed.
(E) The Definitive Original Bearer Bonds and the Original Registered Bonds are signed manually or in facsimile by a Director of the issuer thereof on its behalf and, in the case of the Definitive Original Bearer Bonds, shall be authenticated by or on behalf of the Principal Paying Agent. The issuer may use the facsimile signature of any person who at the date such signature is affixed is a Director of the issuer notwithstanding that at the time of issue of any of the Definitive Original Bearer Bonds or the Original Registered Bonds he may have ceased for any reason to be the holder of such office. The Definitive Original Bearer Bonds so executed and authenticated, the Original Registered Bonds so executed, and the Original Coupons, upon execution and authentication of the relevant Definitive Original Bearer Bonds, are binding and valid obligations of the Issuer. The Original Coupons shall not be signed.
4. FEES, DUTIES AND TAXES
THE Issuer will pay any stamp, issue, registration, documentary and other fees, duties and taxes, including interest and penalties, payable on or in connection with (i) the execution and delivery of these presents, (ii) the constitution and original issue of the Securities and the Coupons and (iii) any action taken by or on behalf of the Trustee or (where permitted under these presents so to do) any Holder or Couponholder to enforce, or to resolve any doubt concerning, or for any other purpose in relation to, these presents.
5. COVENANT OF COMPLIANCE
EACH of the Issuer and the Guarantor severally covenants with the Trustee that it will comply with and perform and observe all the provisions of these presents which are expressed to be binding on it. The Conditions shall be binding on the Issuer, the Guarantor, the Holders and the Couponholders. The Trustee shall be entitled to enforce the obligations of the Issuer and the Guarantor under the Securities and the Coupons as if the same were set out and contained in the trust deeds constituting the same, which shall be read and construed as one document with the Securities and the Coupons.
The Trustee shall hold the benefit of this covenant upon trust for itself and the Holders and Couponholders according to its and their respective interests.
6. CANCELLATION OF SECURITIES AND RECORDS
(A) THE Issuer shall procure that all Securities (i) redeemed or (ii)
purchased by or on behalf of the Issuer, the Guarantor or any other
Subsidiary of the Guarantor and surrendered for cancellation or (iii)
which, being mutilated or defaced, have been surrendered and replaced
pursuant to Condition 15 or (iv) exchanged as provided in these
presents (together in each case with all unmatured Coupons attached
thereto or delivered therewith) and all Coupons paid in accordance with
the Conditions or which, being mutilated or defaced, have been
surrendered and replaced pursuant to Condition 15 and all Talons
exchanged in accordance with the Conditions for further Coupons shall
forthwith be cancelled by or on behalf of the Issuer and a certificate
stating:
(a) the aggregate principal amount of Securities which have been redeemed and the aggregate amounts in respect of Coupons which have been paid;
(b) the serial numbers of such Bearer Securities in definitive form;
(c) the total numbers (where applicable, of each denomination) by maturity date of such Coupons;
(d) the aggregate amount of interest paid (and the due dates of such payments) on Global Securities and/or on Registered Securities;
(e) the aggregate principal amount of Securities (if any) which have been purchased by or on behalf of the Issuer, the Guarantor or any other Subsidiary of the Guarantor and cancelled and the serial numbers of such Bearer Securities in definitive form and the total number (where applicable, of each denomination) by maturity date of the Coupons attached thereto or surrendered therewith;
(f) the aggregate principal amounts of Securities and the aggregate amounts in respect of Coupons which have been so exchanged or surrendered and replaced and the serial numbers of such Bearer Securities in definitive form and the total number (where applicable, of each denomination) by maturity date of such Coupons;
(g) the total number (where applicable, of each denomination) by maturity date of unmatured Coupons missing from Securities in definitive form bearing interest at a fixed rate which have been redeemed or exchanged or surrendered and replaced and the serial numbers of the Bearer Securities in definitive form to which such missing unmatured Coupons appertained; and
(h) the total number (where applicable, of each denomination) by maturity date of Talons which have been exchanged for further Coupons
shall be given to the Trustee by or on behalf of the Issuer as soon as possible and in any event within four months after the date of such redemption, purchase, payment, exchange or replacement (as the case may be). The Trustee may accept such certificate as conclusive evidence of redemption, purchase, exchange or replacement pro tanto of the Securities or payment of interest thereon or exchange of the Talons respectively and of cancellation of the relative
(B) The Issuer shall procure (i) that the Principal Paying Agent shall keep a full and complete record of all Securities and Coupons (other than serial numbers of Coupons) and of their redemption, purchase by or on behalf of the Issuer, the Guarantor or any other Subsidiary of the Guarantor, cancellation, payment or exchange (as the case may be) and of all replacement securities or coupons or talons issued in substitution for lost, stolen, mutilated, defaced or destroyed Securities or Coupons (ii) that the Principal Paying Agent shall in respect of the Coupons of each maturity retain (in the case of Coupons
other than Talons) until the expiry of 10 years from the Relevant Date in respect of such Coupons and (in the case of Talons) indefinitely either all paid or exchanged Coupons of that maturity or a list of the serial numbers of Coupons of that maturity still remaining unpaid or unexchanged and (iii) that such records and Coupons (if any) shall be made available to the Trustee at all reasonable times.
7. GUARANTEE
(A) THE Guarantor hereby irrevocably and unconditionally guarantees to the Trustee:
(1) the due and punctual payment in accordance with the provisions of these presents of the principal of and premium (if any) and interest on the Securities and of any other amounts payable by the Issuer under these presents; and
(2) the due and punctual performance and observance by the Issuer of each of the other provisions of these presents on the Issuer's part to be performed or observed.
(B) If the Issuer fails for any reason whatsoever punctually to pay any such principal, premium, interest or other amount, the Guarantor shall cause each and every such payment to be made as if the Guarantor instead of the Issuer were expressed to be the primary obligor under these presents and not merely as surety (but without affecting the nature of the Issuer's obligations) to the intent that the holder of the relevant Security or Coupon or the Trustee (as the case may be) shall receive the same amounts in respect of principal, premium, interest or such other amount as would have been receivable had such payments been made by the Issuer.
(C) If any payment received by the Trustee or any Holder or Couponholder under the provisions of these presents shall (whether on the subsequent bankruptcy, insolvency or corporate reorganisation of the Issuer or, without limitation, on any other event) be avoided or set aside for any reason, such payment shall not be considered as discharging or diminishing the liability of the Guarantor and this guarantee shall continue to apply as if such payment had at all times remained owing by the Issuer and the Guarantor shall indemnify the Trustee and the Holders and/or Couponholders (as the case may be) in respect thereof PROVIDED THAT the obligations of the Issuer and/or the Guarantor under this sub-clause shall, as regards each payment made to the Trustee or any Holder or Couponholder which is avoided or set aside, be contingent upon such payment being reimbursed to the Issuer or other persons entitled through the Issuer.
(D) The Guarantor hereby agrees that its obligations under this Clause shall be unconditional and that the Guarantor shall be fully liable irrespective of the validity, regularity, legality or enforceability against the Issuer of, or of any defence or counter-claim whatsoever available to the Issuer in relation to, its obligations under these presents, whether or not any action has been taken to enforce the same or any judgment obtained against the Issuer, whether or not any of the
other provisions of these presents have been modified, whether or not any time, indulgence, waiver, authorisation or consent has been granted to the Issuer by or on behalf of the Holders or the Couponholders or the Trustee, whether or not any determination has been made by the Trustee pursuant to Clause 19(A), whether or not there have been any dealings or transactions between the Issuer, any of the Holders or Couponholders or the Trustee, whether or not the Issuer has been dissolved, liquidated, merged, consolidated, bankrupted or has changed its status, functions, control or ownership, whether or not the Issuer has been prevented from making payment by foreign exchange provisions applicable at its place of registration or incorporation and whether or not any other circumstances have occurred which might otherwise constitute a legal or equitable discharge of or defence to a guarantor. Accordingly the validity of this guarantee shall not be affected by reason of any invalidity, irregularity, illegality or unenforceability of all or any of the obligations of the Issuer under these presents and this guarantee shall not be discharged nor shall the liability of the Guarantor under these presents be affected by any act, thing or omission or means whatever whereby its liability would not have been discharged if it had been the principal debtor.
(E) Without prejudice to the provisions of Clause 9(A) the Trustee may determine from time to time whether or not it will enforce this guarantee which it may do without making any demand of or taking any proceedings against the Issuer and may from time to time make any arrangement or compromise with the Guarantor in relation to this guarantee which the Trustee may consider expedient in the interests of the Holders.
(F) The Guarantor waives diligence, presentment, demand of payment, filing of claims with a court in the event of dissolution, liquidation, merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to these presents or the indebtedness evidenced thereby and all demands whatsoever and covenants that this guarantee shall be a continuing guarantee, shall extend to the ultimate balance of all sums payable and obligations owed by the Issuer under these presents, shall not be discharged except by complete performance of the obligations in these presents and is additional to, and not instead of, any security or other guarantee or indemnity at any time existing in favour of any person, whether from the Guarantor or otherwise.
(G) If any moneys shall become payable by the Guarantor under this guarantee the Guarantor shall not, so long as the same remain unpaid, without the prior written consent of the Trustee:
(i) in respect of any amounts paid by it under this guarantee, exercise any rights of subrogation or contribution or, without limitation, any other right or remedy which may accrue to it in respect of or as a result of any such payment; or
(ii) in respect of any other moneys for the time being due to the Guarantor by the Issuer, claim payment thereof or exercise any other right or remedy;
(including in either case claiming the benefit of any security or right of set-off or, on the liquidation of the Issuer, proving in competition with the Trustee). If, notwithstanding the foregoing, upon the bankruptcy, insolvency or liquidation of the Issuer, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, shall be received by the Guarantor
before payment in full of all amounts payable under these presents shall have been made to the Holders, the Couponholders and the Trustee, such payment or distribution shall be received by the Guarantor on trust to pay the same over immediately to the Trustee for application in or towards the payment of all sums due and unpaid under these presents in accordance with Clause 10.
(H) Until all amounts which may be or become payable by the Issuer under these presents have been irrevocably paid in full, the Trustee may:
(i) refrain from applying or enforcing any other moneys, security or rights held or received by the Trustee in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise), and the Guarantor shall not be entitled to the benefit of the same; and
(ii) hold in a suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this guarantee, without liability to pay interest on those moneys.
(I) The obligations of the Guarantor under these presents constitute direct, unconditional and (subject to the provisions of Condition 5) unsecured obligations of the Guarantor and (subject as aforesaid) rank and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the Guarantor, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors' rights.
(J) As separate, independent and alternative stipulations, the Guarantor unconditionally and irrevocably agrees (1) that any sum which, although expressed to be payable by the Issuer under this Trust Deed, the Securities or the Coupons, is for any reason (whether or not now existing and whether or not now known or becoming known to the Issuer, the Guarantor, the Trustee or any holder or Couponholder) not recoverable from the Guarantor on the basis of a guarantee will nevertheless be recoverable from it as if it were the sole principal debtor and will be paid by it to the Trustee on demand and (2) as a primary obligation to indemnify the Trustee, each Holder and each Couponholder against any loss suffered by it as a result of any sum expressed to be payable by the Issuer under this Trust Deed, the Securities or the Coupons not being paid on the date and otherwise in the manner specified in this Trust Deed or any payment obligation of the Issuer under this Trust Deed, the Securities or the Coupons being or becoming void, voidable or unenforceable for any reason (whether or not now existing and whether or not now known or becoming known to the Trustee, any Holder or any Couponholder), the amount of any such loss being the amount expressed to be payable by the Issuer in respect of the relevant sum.
8. ENFORCEMENT
(A) THE Trustee may at any time, at its discretion and without notice, take such proceedings and/or other action as it may think fit against or in relation to each of the Issuer and the Guarantor to enforce their respective obligations under these presents.
(B) Proof that as regards any specified Security or Coupon the Issuer or the Guarantor (as the case may be) has made default in paying any amount due in respect of such Security or Coupon shall (unless the contrary be proved) be sufficient evidence that the same default has been made as regards all other Securities or Coupons (as the case may be) in respect of which the relevant amount is due and payable.
(C) References in the provisions of any trust deed supplemental to this Trust Deed corresponding to provisos (iii) and (iv) to Clause 2(B) to "the rate aforesaid" shall, in respect of any Securities bearing interest at a floating or variable rate, in the event of such Securities having become due and repayable, with effect from the expiry of the interest period during which such Securities become due and repayable, be construed as references to a rate of interest calculated mutatis mutandis in accordance with the Conditions except that no notices need be published in respect thereof.
9. PROCEEDINGS, ACTION AND INDEMNIFICATION
(A) THE Trustee shall not be bound to take any proceedings mentioned in Clause 8(A) or any other action in relation to these presents unless respectively directed or requested to do so (i) by an Extraordinary Resolution or (ii) in writing by the holders of at least one-quarter in principal amount of the Securities then outstanding and in either case then only if it shall be indemnified to its satisfaction against all Liabilities to which it may thereby render itself liable or which it may incur by so doing.
(B) Only the Trustee may enforce the provisions of these presents. No Holder or Couponholder shall be entitled to proceed directly against the Issuer or the Guarantor to enforce the performance of any of the provisions of these presents unless the Trustee having become bound as aforesaid to take proceedings fails to do so within a reasonable period and such failure is continuing.
10. APPLICATION OF MONEYS
ALL moneys received by the Trustee under these presents shall, unless and to the extent attributable in the opinion of the Trustee to a particular series of the Securities, be apportioned pari passu and rateably between each series of the Securities, and all moneys received by the Trustee under these presents to the extent attributable in the opinion of the Trustee to a particular series of the Securities or which are apportioned to such series as aforesaid (including any moneys which represent principal, premium or interest in respect of Securities or Coupons which have become void under Condition 11) shall be held by the Trustee upon trust to apply them (subject to Clause 12):
FIRST in payment or satisfaction of all amounts then due and unpaid under Clauses 15 and/or 16(J) to the Trustee and/or any Appointee;
SECONDLY in or towards payment pari passu and rateably of all principal, premium (if any) and interest then due and unpaid in respect of the Securities of that series;
THIRDLY in or towards payment pari passu and rateably of all principal, premium (if any) and interest then due and unpaid in respect of the Securities of each other series; and
FOURTHLY in payment of the balance (if any) to the Issuer (without prejudice to, or liability in respect of, any question as to how such payment to the Issuer shall be dealt with as between the Issuer, the Guarantor and any other person).
Without prejudice to this Clause 10, if the Trustee holds any moneys which represent principal, premium (if any) and interest in respect of the Securities which have become void or in respect of which claims have been prescribed under Condition 11, the Trustee will hold such moneys on the above trusts.
11. NOTICE OF PAYMENTS
THE Trustee shall give notice to the relevant Holders in accordance
with Condition 16 of the day fixed for any payment to them under Clause
10. Such payment may be made in accordance with Condition 6 and any
payment so made shall be a good discharge to the Trustee.
12. INVESTMENT BY TRUSTEE
(A) IF the amount of the moneys at any time available for the payment of principal, premium (if any) and interest in respect of the Securities under Clause 10 shall be less than 10 per cent. of the principal amount of the Securities then outstanding the Trustee may at its discretion invest such moneys in some or one of the investments authorised below. The Trustee at its discretion may vary such investments and may accumulate such investments and the resulting income until the accumulations, together with any other funds for the time being under the control of the Trustee and available for such purpose, amount to at least 10 per cent. of the principal amount of the Securities then outstanding and then such accumulations and funds shall be applied under Clause 10.
(B) Any moneys which under the trusts of these presents ought to or may be invested by the Trustee may be invested in the name or under the control of the Trustee in any investments or other assets in any part of the world whether or not they produce income or by placing the same on deposit in the name or under the control of the Trustee at such bank or other financial institution and in such currency as the Trustee may think fit. If such bank or financial institution is the Trustee or a subsidiary, holding or associated company of the Trustee it need only account for an amount of interest equal to the largest amount of interest payable by it on such a deposit to an independent customer. The Trustee may at any time vary any such investments for or into other investments or convert any moneys so deposited into any other currency and shall not be responsible for any loss resulting from any such investments or deposits, whether due to depreciation in value, fluctuations in exchange rates or otherwise.
13. PARTIAL PAYMENTS
UPON any payment under Clause 10 (other than payment in full against surrender of a Security or Coupon) the Security or Coupon in respect of which such payment is made shall be produced to the Trustee or the Paying Agent by or through whom such payment is made and the Trustee shall or shall cause such Paying Agent to enface thereon a memorandum of the amount and the date of payment but the Trustee may in any particular case or generally in relation to Registered Securities dispense with such production and enfacement upon such indemnity being given as it shall think sufficient.
14. COVENANTS BY THE ISSUER AND THE GUARANTOR
SO long as any of the Securities remains outstanding (or, in the case of paragraphs (viii), (ix), (xiii) to (xvi) inclusive and (xviii), so long as any of the Securities or Coupons remains liable to prescription) each of the Issuer and the Guarantor severally covenants with the Trustee that it shall:
(i) at all times carry on and conduct its affairs and procure its Subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner;
(ii) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall properly require and in such form as it shall properly require (including without limitation the procurement by the Issuer and/or the Guarantor of all such certificates called for by the Trustee pursuant to Clause 16(C)) for the purpose of the proper discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(iii) cause to be prepared and certified by the Auditors in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all applicable requirements for the time being of The Stock Exchange;
(iv) at all times keep and procure its Subsidiaries to keep proper books of account and following the occurrence of an Event of Default or a Potential Event of Default or if the Trustee has grounds to believe that an Event of Default or a Potential Event of Default has occurred or is likely to occur allow and procure its Subsidiaries to allow the Trustee and any person appointed by the Trustee to whom the Issuer, the Guarantor or the relevant Subsidiary (as the case may be) shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours;
(v) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer or the Guarantor) two copies in English of every balance sheet, profit and loss account, report, circular and notice of general meeting and every other document issued or sent to its shareholders together with any of the foregoing, and every document issued or sent to holders of securities other than
its shareholders (including the Holders) as soon as reasonably practicable after the issue or publication thereof
(vi) forthwith give notice in writing to the Trustee of the coming into existence of any Security Interest which would require any security to be given to any series of the Securities pursuant to Condition 5 or of the occurrence of any Event of Default or any Potential Event of Default or any Restructuring Event;
(vii) give to the Trustee (a) within seven days after demand by the Trustee therefore and (b) (without the necessity for any such demand) promptly after the publication of its audited accounts in respect of each financial period commencing with the financial period ending 31st March, 1995 and in any event not later than 180 days after the end of each such financial period a certificate of the Issuer signed by two Directors of the Issuer and two Directors of the Guarantor to the effect that as at a date not more than seven days before delivering such certificate (the "relevant date") there did not exist and had not existed since the relevant date of the previous certificate any Event of Default or any Potential Event of Default or any Restructuring Event (or if such exists or existed specifying the same) and that during the period from and including the relevant date of the last such certificate to and including the relevant date of such certificate each of the Issuer and the Guarantor has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied;
(viii) at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the opinion of the Trustee to give effect to these presents;
(ix) at all times maintain an Agent Bank, Reference Banks, Paying Agents, a Registrar and Transfer Agents in accordance with the Conditions;
(x) procure the Principal Paying Agent to notify the Trustee forthwith in the event that it does not, on or before the due date for any payment in respect of the Securities or any of them or any of the Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Securities or Coupons as the case may be;
(xi) in the event of the unconditional payment to the Principal Paying Agent of any sum due in respect of the Securities or any of them or any of the Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Holders in accordance with Condition 16 that such payment has been made;
(xii) use all reasonable endeavours to maintain the listing of the Securities on The Stock Exchange or, if it is unable to do so having used all reasonable endeavours, use all reasonable endeavours to obtain and maintain a quotation or listing of
the Securities on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and shall also upon obtaining a quotation or listing of the Securities on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(xiii) give notice to the Holders in accordance with Condition 16 of any appointment, resignation or removal of any Agent Bank, Reference Bank, Paying Agent, Registrar or Transfer Agent (other than the appointment of the initial Agent Bank, Reference Banks, Paying Agents, Registrar and Transfer Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's, Registrar's or Transfer Agent's specified office and (except as provided by the Agent Bank Agreement or the Agency Agreement or the Conditions) at least 30 days prior to such event taking effect; PROVIDED ALWAYS THAT so long as any of the Securities remains outstanding in the case of the termination of the appointment of the Agent Bank, the Registrar or a Transfer Agent or so long as any of the Securities or Coupons remains liable to prescription in the case of the termination of the appointment of the Principal Paying Agent no such termination shall take effect until a new Agent Bank, Registrar, Transfer Agent or Principal Paying Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(xiv) obtain the prior written approval of the Trustee to, and promptly give to the Trustee two copies of, the form of every notice given to the Holders in accordance with Condition 16 (such approval, unless so expressed, not to constitute approval for the purposes of Section 57 of the Financial Services Act 1986 of the United Kingdom of any such notice which is an investment advertisement (as therein defined));
(xv) if payments of principal, premium or interest in respect of the Securities or the Coupons by the Issuer or the Guarantor shall become subject generally to the taxing jurisdiction of any territory or any political sub-division thereof or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any such political sub-division thereof or any such authority therein or thereof, as soon as reasonably practicable after having become aware thereof notify the Trustee of such event and (unless the Trustee otherwise agrees) enter forthwith into a trust deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 10 with the substitution for (or, as the case may be, the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid such
trust deed also (where applicable) to modify Condition 8(c) so that such Condition shall make reference to the other or additional territory, any political sub-division thereof and any authority therein or thereof having power to tax;
(xvi) comply with and perform all its obligations under the Agent Bank Agreement and the Agency Agreement and use all reasonable endeavours to procure that the Agent Bank, the Paying Agents, the Registrar and the Transfer Agents comply with and perform all their respective obligations thereunder and (in the case of the Paying Agents) any notice given by the Trustee pursuant to Clause 2(C)(i) and not make any amendment or modification to either of such agreements without the prior written approval of the Trustee;
(xvii) in order to enable the Trustee to ascertain the principal amount of Securities of each series for the time being outstanding for any of the purposes referred to in the proviso to the definition of "outstanding" in Clause 1, deliver to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer or of the Guarantor (as appropriate) setting out the total number and aggregate principal amount of Securities of each series which:
(a) up to and including the date of such certificate have been purchased by the Issuer, the Guarantor or any other Subsidiary of the Guarantor and cancelled; and
(b) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, the Guarantor, any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company;
(xviii) procure its Subsidiaries to comply with all (if any) applicable provisions of Condition 8(d);
(xix) procure that each of the Paying Agents makes available for inspection by Holders and Couponholders at its specified office copies of these presents, the Agency Agreement, the Agent Bank Agreement and the then latest audited balance sheet and profit and loss account (consolidated if applicable) of the Issuer and of the Guarantor;
(xx) if, in accordance with the provisions of the Conditions,
interest in respect of Bearer Securities denominated in U.S.
dollars becomes payable at the specified office of any Paying
Agent in the United States of America promptly give notice
thereof to the Holders in accordance with Condition 16;
(xxiii) upon due surrender in accordance with the Conditions, pay the
face value of all Coupons (including Coupons issued in
exchange for Talons) appertaining to all Securities purchased
by the Issuer or the Guarantor or any other Subsidiary of the
Guarantor;
(xxiv) give to the Trustee a certificate of the Auditors of the Guarantor:
(a) specifying the amount of the Capital and Reserves for the purposes of Condition 5, such certificate to be provided before the Issuer, the Guarantor or any Distribution Subsidiary creates or has outstanding a Security Interest in respect of any Relevant Indebtedness and/or guarantees within Condition 5;
(b) specifying that a Subsidiary of the Guarantor
satisfies the provisions of Condition 5(D)(i) and
(ii), such certificate to be provided before or at
the same time as any written notice given to the
Trustee by the Guarantor under Condition 5(D)(iii)
that a Subsidiary of the Guarantor is an Excluded
Subsidiary; and
(c) specifying the amount of the Capital and Reserves for the purposes of Condition 12(c) (and, for the avoidance of doubt, using the definition of "Capital and Reserves" as set out in Condition 12(c)), such certificate to be provided within 10 days of any request by the Trustee for its provision;
(xxv) give to the Trustee a certificate of two Directors of the Issuer or of the Guarantor (as appropriate):
(a) specifying the aggregate amount of any Relevant Indebtedness of the Issuer, the Guarantor or any Distribution Subsidiary or guaranteed by the Issuer, the Guarantor or any Distribution Subsidiary and in respect of which a Security Interest or Security Interests has or have been created or is or are outstanding, such certificate to be provided before the Issuer, the Guarantor or any Distribution Subsidiary creates or has outstanding any new Security Interest;
(b) specifying details of any modification to the terms and conditions of the Distribution Licence, such certificate to be provided promptly upon any such modification being made; and
(c) specifying any higher figure determined by the Gas and Electricity Markets Authority as is mentioned in Condition 12, such certificate to be provided within 5 days of the Gas and Electricity Markets Authority determining such figure by notice in writing to the Secretary of State for Trade and Industry; and
(xxvi) give notice to the Trustee as soon as practicable after its Directors or the Directors of any Distribution Subsidiary have resolved to give any Security Interest in respect of any Relevant Indebtedness or guarantee as described in Condition 5.
15. REMUNERATION AND INDEMNIFICATION OF TRUSTEE
(A) THE Issuer shall pay to the Trustee remuneration for its services as trustee as from the date of this Trust Deed, such remuneration to be at such rate as may from time to time be agreed between the Issuer and the Trustee. Such remuneration shall be payable in advance on 17th January in each year. Upon the issue of any Further Securities the rate of remuneration in force immediately prior thereto shall be increased by such amount as shall be agreed between the Issuer and the Trustee, such increased remuneration to be calculated from such date as shall be agreed as aforesaid. The rate of remuneration in force from time to time may upon the final redemption of the whole of the Securities of any series be reduced by such amount as shall be agreed between the Issuer and the Trustee, such reduced remuneration to be calculated from such date as shall be agreed as aforesaid. Such remuneration shall accrue from day to day and be payable (in priority to payments to the Holders and Couponholders) up to and including the date when, all the Securities having become due for redemption, the redemption moneys and interest thereon to the date of redemption have been paid to the Principal Paying Agent or the Trustee PROVIDED THAT if upon due presentation of any Security or Coupon or any cheque payment of the moneys due in respect thereof is improperly withheld or refused, remuneration will commence again to accrue.
(B) In the event of the occurrence of an Event of Default or a Potential Event of Default or the Trustee considering it expedient or necessary or being requested by the Issuer or the Guarantor to undertake duties which the Trustee and the Issuer or, as the case may be, the Guarantor agree to be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee under these presents the Issuer shall pay to the Trustee such additional remuneration as shall be agreed between them.
(C) The Issuer shall in addition pay to the Trustee an amount equal to the amount of any value added tax or similar tax chargeable in respect of its remuneration under these presents.
(D) In the event of the Trustee and the Issuer or, as the case may be, the Guarantor failing to agree:
(1) (in a case to which sub-clause (A) above applies) upon the amount of the remuneration; or
(2) (in a case to which sub-clause (B) above applies) upon whether such duties shall be of an exceptional nature or otherwise outside the scope of the. normal duties of the Trustee under these presents, or upon such additional remuneration, such matters shall be determined by a merchant bank (acting as an expert and not as an arbitrator) selected by the Trustee and approved by the Issuer or, failing such approval, nominated (on the application of the Trustee) by the President for the time being of The Law Society of England and Wales (the expenses involved in such nomination and the fees of such merchant bank being payable by the Issuer) and the determination of any such merchant bank shall be final and binding upon the Trustee, the Issuer and the Guarantor.
(E) The Issuer shall also pay or discharge all Liabilities incurred by the Trustee in relation to the preparation and execution of, the exercise of its powers and the performance of its duties under, and in any other manner in relation to, these presents, including but not limited to travelling expenses and any stamp, issue, registration, documentary and other taxes or duties paid or payable by the Trustee in connection with any action taken or contemplated by or on behalf of the Trustee for enforcing, or resolving any doubt concerning, or for any other purpose in relation to, these presents.
(F) All amounts payable pursuant to sub-clause (E) above and/or Clause 16(J) shall be payable by the Issuer on the date specified in a demand by the Trustee and in the case of payments actually made by the Trustee prior to such demand shall (if not paid within three days after such demand and the Trustee so requires) carry interest at the rate of two per cent. per annum above the Base Rate from time to time of National Westminster Bank Plc from the date specified in such demand, and in all other cases shall (if not paid on the date specified in such demand or, if later, within three days after such demand and, in either case, the Trustee so requires) carry interest at such rate from the date specified in such demand. All remuneration payable to the Trustee shall carry interest at such rate from the due date therefor.
(G) Unless otherwise specifically stated in any discharge of these presents the provisions of this Clause and Clause 16(J) shall continue in full force and effect notwithstanding such discharge.
(H) The Trustee shall be entitled in its absolute discretion to determine in respect of which series of Securities any Liabilities incurred under these presents have been incurred or to allocate any such Liabilities between the Original Bonds and any Further Securities of any series.
16. SUPPLEMENT TO TRUSTEE ACTS
THE Trustee shall have all the powers conferred upon trustees by the Trustee Act 1925 and the Trustee Act 2000 of England and Wales (together the "Trustee Acts") and by way of supplement thereto it is expressly declared as follows:
(A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by the Issuer, the Guarantor, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting.
(B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be authentic.
(C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two Directors of the Issuer and/or by any two Directors of the Guarantor and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate.
(D) The Trustee may appoint and pay any person to act as a custodian or nominee on any terms in relation to such assets of the trust as the Trustee may determine, including for the purpose of depositing with a custodian these presents or any document relating thereto and the Trustee shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it hereunder or to be bound to supervise the proceedings or acts of any such person; the Trustee is not obliged to appoint a custodian if the Trustee invests in securities payable to the bearer.
(E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Securities by the Issuer, the exchange of any Global Security for another Global Security or definitive Securities or the delivery of any Global Security or definitive Securities to the person(s) entitled to it or them.
(F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default, Potential Event of Default, Negative Rating Event, any Restructuring Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default, Potential Event of Default, Negative Rating Event, any Restructuring Event or any other such event has occurred and that each of the Issuer and the Guarantor is observing and performing all its obligations under these presents.
(G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise of its trusts, powers, authorities and discretions under these presents (the exercise of which as between the Trustee and the Holders and Couponholders shall be conclusive and binding on the Holders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise.
(H) The Trustee shall not be liable to any person by reason of having acted upon any resolution purporting to have been passed at any meeting of the Holders of Securities of all or any series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution or that for any reason the resolution was not valid or binding upon such Holders and the relative Couponholders.
(I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Security or Coupon purporting to be such and subsequently found to be forged or not authentic.
(J) Without prejudice to the right of indemnity by law given to trustees, each of the Issuer and the Guarantor shall severally indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be incurred by it or him in the execution or purported execution of any of its trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment.
(K) Any consent or approval given by the Trustee for the purposes of these presents may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively.
(L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Holder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by the Issuer or the Guarantor or any other person in connection with these presents and no Holder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information.
(M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the Issuer or the Guarantor as relevant and any rate, method and date so agreed shall be binding on the Issuer, the Guarantor, the Holders and the Couponholders.
(N) The Trustee may certify whether or not any of the conditions, events and acts set out in sub-paragraphs (b), (c), (e), (f) and (g) of Condition 12 (each of which conditions, events and acts shall, unless in any case the Trustee in its absolute discretion shall otherwise determine, for all the purposes of these presents be deemed to include the circumstances resulting therein and the consequences resulting therefrom) is in its opinion materially prejudicial to the interests of the Holders and any such certificate shall be conclusive and binding upon the Issuer, the Guarantor, the Holders and the Couponholders.
(O) The Trustee as between itself and the Holders and Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relating in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Holders and Couponholders.
(P) In connection with the exercise by it of any of its trusts, powers, authorities and discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the interests of the Holders as a class and, in particular but without limitation, shall not have regard to the consequences of such exercise for individual Holders or Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Holder or Couponholder be entitled to claim, from the Issuer, the Guarantor, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Holders or Couponholders except to the extent already provided for in Condition 10 and/or any undertaking given in addition thereto or in substitution therefor under these presents.
(Q) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents.
(R) The Trustee may whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions under these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Holders think fit. The Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the Issuer.
(S) The Trustee may in the conduct of the trusts of these presents instead of acting personally employ and pay an agent on any terms (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). The Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent.
(T) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution,
delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating thereto.
(U) Section 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by these presents. Where there are any inconsistencies between the Trustee Acts and these presents, this Trust Deed shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Act 2000, these presents shall constitute a restriction or exclusion for the purposes of the Trustee Act 2000.
17. TRUSTEE'S LIABILITY
NOTHING in these presents shall in any case in which the Trustee has failed to show the degree of care and diligence required of it as trustee having regard to the provisions of these presents conferring on it any trusts, powers, authorities or discretions exempt the Trustee from or indemnify it against any liability for breach of trust or any Liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under these presents.
18. TRUSTEE CONTRACTING WITH ISSUER AND THE GUARANTOR
NEITHER the Trustee nor any director or officer of a corporation acting as a trustee under these presents shall by reason of its or his fiduciary position be in any way precluded from:
(i) entering into or being interested in any contract or financial or other transaction or arrangement with the Issuer or the Guarantor or any person or body corporate associated with the Issuer or the Guarantor (including without limitation any contract, transaction or arrangement of a banking or insurance nature or any contract, transaction or arrangement in relation to the making of loans or the provision of financial facilities to, or the purchase, placing or underwriting of or the subscribing or procuring subscriptions for or otherwise acquiring, holding or dealing with the Securities or any other bonds, notes, stocks, shares, debenture stock, debentures or other securities of, the Issuer or the Guarantor or any person or body corporate associated as aforesaid); or
(ii) accepting or holding the trusteeship of any other trust deed constituting or securing any other securities issued by or relating to the Issuer or the Guarantor or any such person or body corporate so associated or any other office of profit under the Issuer or the Guarantor or any such person or body corporate so associated and shall be entitled to retain and shall not be in any way liable to account for any profit made or share of brokerage or commission or remuneration or other benefit received thereby or in connection therewith.
19. WAIVER, AUTHORISATION AND DETERMINATION
(A) THE Trustee may without prejudice to its rights in respect of any subsequent breach, Event of Default or Potential Event of Default from time to time and at any time but only if and in so far as in its opinion the interests of the Holders shall not be materially prejudiced thereby waive or authorise any breach or proposed breach by the Issuer or the Guarantor of any of the covenants or provisions contained in these presents or determine that any Event of Default or Potential Event of Default shall not be treated as such for the purposes of these presents PROVIDED ALWAYS THAT the Trustee shall not exercise any powers conferred on it by this Clause in contravention of any express direction given by Extraordinary Resolution or by a request under Condition 12 but so that no such direction or request shall affect any waiver, authorisation or determination previously given or made. Any such waiver, authorisation or determination may be given or made on such terms and subject to such conditions (if any) as the Trustee may determine, shall be binding on the Holders and the Couponholders and, if, but only if, the Trustee shall so require, shall be notified by the Issuer to the Holders in accordance with Condition 16 as soon as practicable thereafter.
MODIFICATION
(B) The Trustee may without the consent of the Holders or
Couponholders at any time and from time to time concur with the
Issuer and the Guarantor in making any modification (i) to these
presents (other than the proviso to paragraph 5 of the Fourth
Schedule or any of the matters referred to in that proviso) which
in the opinion of the Trustee it may be proper to make PROVIDED
THAT the Trustee is of the opinion that such modification will
not be materially prejudicial to the interests of the Holders or
(ii) to these presents if in the opinion of the Trustee such
modification is of a formal, minor or technical nature or to
correct a manifest error. Any such modification may be made on
such terms and subject to such conditions (if any) as the Trustee
may determine, shall be binding upon the Holders and the
Couponholders and, unless the Trustee agrees otherwise, shall be
notified by the Issuer to the Holders in accordance with
Condition 16 as soon as practicable thereafter.
20. HOLDER OF DEFINITIVE BEARER SECURITY ASSUMED TO BE COUPONHOLDER
(A) WHEREVER in these presents the Trustee is required or entitled to exercise a power, trust, authority or discretion under these presents, except as ordered by a court of competent jurisdiction or as required by applicable law, the Trustee shall, notwithstanding that it may have express notice to the contrary, assume that each Holder is the holder of all Coupons appertaining to each Bearer Security in definitive form of which he is the holder.
NO NOTICE TO COUPONHOLDERS
(B) Neither the Trustee nor the Issuer nor the Guarantor shall be required to give any notice to the Couponholders for any purpose under these presents and the Couponholders shall be deemed for
all purposes to have notice of the contents of any notice given to the Holders in accordance with Condition 16.
ENTITLEMENT TO TREAT HOLDER AS ABSOLUTE OWNER
(C) The Issuer, the Guarantor, the Trustee, the Paying Agents, the Registrar and the Transfer Agents may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Security and the holder of any Coupon as the absolute owner of such Security or Coupon, as the case may be, for all purposes (whether or not such Security or Coupon shall be overdue and notwithstanding any notice of ownership thereof, any notice of loss or theft thereof or any writing thereon), and the Issuer, the Guarantor, the Trustee, the Paying Agents, the Registrar and the Transfer Agents shall not be affected by any notice to the contrary. All payments made to any such holder shall be valid and, to the extent of the sums so paid, effective to satisfy and discharge the liability for the moneys payable in respect of such Security or Coupon, as the case may be.
21. SUBSTITUTION
(A) (1) The Trustee may without the consent of the Holders or
Couponholders at any time agree with the Issuer and the Guarantor
to the substitution in place of the Issuer or the Guarantor (or,
in either case, of any previous substitute under this Clause) as
the principal debtor under, or, as the case may be, guarantor in
respect of, these presents of any Subsidiary of the Issuer,
including a Relevant Subsidiary (as defined in Condition
9(d)(vi)), or the Guarantor (such substituted company being
hereinafter called the "New Company") provided that a trust deed
is executed or some other form of undertaking is given by the New
Company in form and manner satisfactory to the Trustee, agreeing
to be bound by the provisions of these presents with any
consequential amendments which the Trustee may deem appropriate
as fully as if the New Company had been named in these presents
as the principal debtor in place of the Issuer or as the
guarantor in place of the Guarantor (or, in either case, of the
previous substitute under this Clause) and provided further that
the Issuer or the Guarantor unconditionally and irrevocably
guarantee all amounts payable under these presents, except where
(a) the Issuer has transferred the Distribution Licence to the
New Company, in which only the Guarantor may act as guarantor or
(b) the New Company is the Guarantor, in which case no guarantee
shall be necessary.
(2) The following further conditions shall apply to sub-clause (A)(1) above:
(i) the Issuer, the Guarantor and the New Company shall comply with such other requirements as the Trustee may direct in the interests of the Holders;
(ii) where the New Company is incorporated, domiciled or resident in, or subject generally to the taxing jurisdiction of, a territory other than or in addition to the United Kingdom or any political sub-division thereof or any authority therein
or thereof having power to tax, undertakings or covenants shall be given by the New Company in terms corresponding to the provisions of Condition 10 with the substitution for (or, as the case may be, the addition to) the references to the United Kingdom of references to that other or additional territory in which the New Company is incorporated, domiciled or resident or to whose taxing jurisdiction it is subject and (where applicable) Condition 8(c) shall be modified accordingly;
(iii) without prejudice to the rights of reliance of the Trustee under the immediately following paragraph (iv), the Trustee is satisfied that the relevant transaction is not materially prejudicial to the interests of the Holders; and
(iv) if two Directors of the New Company (or other officers acceptable to the Trustee) shall certify that the New Company is solvent at the time at which the relevant transaction is proposed to be effected (which certificate the Trustee may rely upon absolutely) the Trustee shall not be under any duty to have regard to the financial condition, profits or prospects of the New Company or to compare the same with those of the Issuer or the previous substitute under this Clause as applicable.
(B) Any such trust deed or undertaking shall, if so expressed, operate to release the Issuer, the Guarantor or the previous substitute as aforesaid from all of its obligations under these presents. Not later than 14 days after the execution of such documents and compliance with such requirements, the New Company shall give notice thereof in a form previously approved by the Trustee to the Holders in the manner provided in Condition 16. Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be named in these presents as the principal debtor in place of the Issuer or as the guarantor in place of the Guarantor (or, in either case, in place of the previous substitute under this Clause) under these presents and these presents shall be deemed to be amended in such manner as shall be necessary to give effect to the above provisions and, without limitation, references in these presents to the Issuer and/or the Guarantor (as the case may be) shall, where the context so requires, be deemed to be or include references to the New Company.
22. CURRENCY INDEMNITY
EACH of the Issuer and the Guarantor shall severally indemnify the Trustee, every Appointee, the Holders and the Couponholders and keep them indemnified against:
(a) any Liability incurred by any of them arising from the non-payment by the Issuer or the Guarantor of any amount due to the Trustee or the Holders or Couponholders under these presents by reason of any variation in the rates of exchange between those used for the purposes
of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Issuer or the Guarantor; and
(b) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under these presents (other than this Clause) is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Issuer or the Guarantor and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be reduced by any variation in rates of exchange occurring between the said final date and the date of any distribution of assets in connection with any such bankruptcy, insolvency or liquidation.
The above indemnities shall constitute obligations of the Issuer and the Guarantor separate and independent from their obligations under the other provisions of these presents and shall apply irrespective of any indulgence granted by the Trustee or the Holders or the Couponholders from time to time and shall continue in full force and effect notwithstanding the judgment or filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Issuer or the Guarantor for a liquidated sum or sums in respect of amounts due under these presents (other than this Clause). Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders and Couponholders and no proof or evidence of any actual loss shall be required by the Issuer or the Guarantor or their liquidator or liquidators.
23. NEW TRUSTEE
(A) THE power to appoint a new trustee of these presents shall be vested in the Issuer but no person shall be appointed who shall not previously have been approved by an Extraordinary Resolution. One or more persons may hold office as trustee or trustees of these presents but such trustee or trustees shall be or include a Trust Corporation. Whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the duties, powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a Trust Corporation shall be included in such majority. Any appointment of a new trustee of these presents shall as soon as practicable thereafter be notified by the Issuer to the Principal Paying Agent, the Registrar, the Transfer Agents and the Holders.
SEPARATE AND CO-TRUSTEES
(B) Notwithstanding the provisions of sub-clause (A) above, the Trustee may, upon giving prior notice to the Issuer and the Guarantor (but without the consent of the Issuer, the Guarantor, the Holders or the Couponholders), appoint any person established or resident in any jurisdiction (whether a Trust Corporation or not) to act either as a separate trustee or as a co-trustee jointly with the Trustee:
(i) if the Trustee considers such appointment to be in the interests of the Holders;
(ii) for the purposes of conforming to any legal requirements, restrictions or conditions in any jurisdiction in which any particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction or the enforcement in any jurisdiction of either a judgment already obtained or any of the provisions of these presents against the Issuer and/or the Guarantor.
Each of the Issuer and the Guarantor irrevocably appoints the Trustee to be its attorney in its name and on its behalf to execute any such instrument of appointment. Such a person shall (subject always to the provisions of these presents) have such trusts, powers, authorities and discretions (not exceeding those conferred on the Trustee by these presents) and such duties and obligations as shall be conferred or imposed by the instrument of appointment. The Trustee shall have power in like manner to remove any such person. Such reasonable remuneration as the Trustee may pay to any such person, together with any attributable Liabilities incurred by it in performing its function as such separate trustee or co-trustee, shall for the purposes of these presents be treated as Liabilities incurred by the Trustee.
24. TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of these presents may retire at any time on giving not less than three months' prior written notice to the Issuer and the Guarantor without giving any reason and without being responsible for any Liabilities incurred by reason of such retirement. The Holders may by
Extraordinary Resolution remove any trustee or trustees for the time being of these presents. The Issuer and the Guarantor undertake that in the event of the only trustee of these presents which is a Trust Corporation giving notice under this Clause or being removed by Extraordinary Resolution they will use their best endeavours to procure that a new trustee of these presents being a Trust Corporation is appointed as soon as reasonably practicable thereafter. The retirement or removal of any such trustee shall not become effective until a successor trustee being a Trust Corporation is appointed and if, in such circumstances no such appointment has become effective within two months of such notice of retirement or Extraordinary Resolution, the Trustee shall (with prior written consent of the Issuer and the Guarantor, such consent not to be unreasonably withheld) be entitled to appoint a trust corporation as Trustee and shall notify the Issuer and the Guarantor of such appointment.
25. TRUSTEE'S POWERS TO BE ADDITIONAL
THE powers conferred upon the Trustee by these presents shall be in addition to any powers which may from time to time be vested in the Trustee by the general law or as a holder of any of the Securities or Coupons.
26. NOTICES
ANY notice or demand to the Issuer and the Guarantor or the Trustee to be given, made or served for any purposes under these presents shall be given, made or served by sending the same by pre-paid post (first class if inland, first class airmail if overseas), telex or facsimile transmission or by delivering it by hand as follows:
to the Issuer
or the Guarantor: Carliol House
Market Street
Newcastle-upon-Tyne
NEl 6NE5DS
Attention: Company Secretary
Fax No. 0191 2102037
to the Trustee: Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: Managing Director
Fax No. 020 7547 6149
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or to such other address, telex or facsimile number as shall have been notified (in accordance with this Clause) to the other parties hereto and any notice or demand sent by post as aforesaid shall be deemed to have been given, made or served three days in the case of inland post or seven days in the case of overseas post after despatch and any notice or demand sent by telex or facsimile transmission as aforesaid shall be deemed to have been given, made or served 24 hours after the time of despatch provided that in the case of a notice or demand given by telex or facsimile transmission such notice or demand shall forthwith be confirmed by post. The failure of the addressee to receive such confirmation shall not invalidate the relevant notice or demand given by telex or facsimile transmission.
27. GOVERNING LAW
THESE presents are governed by, and shall be construed in accordance with, English law.
28. COUNTERPARTS
THIS Trust Deed and any trust deed supplemental hereto may be executed and delivered in any number of counterparts, all of which, taken together, shall constitute one and the same deed and any party to this Trust Deed or any trust deed supplemental hereto may enter into the same by executing and delivering a counterpart.
29. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to these presents has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these presents, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
IN WITNESS whereof this Trust Deed has been executed as a deed by the Issuer, the Guarantor and the Trustee and delivered on the date first stated above.
THE FIRST SCHEDULE
Part I
- FORM OF ORIGINAL GLOBAL BOND -
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 2366995)
TEMPORARY GLOBAL BOND
Representing
(pound)[ ] in principal amount of an issue of
(pound)200,000,000 9 1/4 PER CENT. BONDS DUE 2020
This Bond is a temporary Global Bond without interest coupons in respect of
(pound)[ ] in principal amount of a duly authorised issue of Bonds of Yorkshire
Electricity Group plc (the "Issuer"), designated as specified in the title
hereof (the "Bonds"), limited to the aggregate principal amount of Two Hundred
Million Pounds Sterling ((pound)200,000,000) and constituted by a Trust Deed
dated 17th January, 1995 (the "Trust Deed") between the Issuer and Bankers
Trustee Company Limited as trustee (the trustee for the time being thereof being
herein called the "Trustee"). References herein to the Conditions (or to any
particular numbered Condition) shall be to the Conditions (or that particular
one of them) set out in Part III of the Second Schedule to the Trust Deed.
1. Promise to pay
Subject as provided in this temporary Global Bond the Issuer promises to pay to the bearer the principal amount of this temporary Global Bond (being at the date hereof [ ] Pounds Sterling ((pound)[ ])) on 17th January, 2020 (or on such earlier date as the said principal amount may become repayable in accordance with the Conditions or the Trust Deed) and to pay interest annually in arrear on 17th January on the principal amount from time to time of this temporary Global Bond at the rate of 9 1/4 per cent. per annum together with such other amounts (if any) as may be payable, all subject to and in accordance with the Conditions and the provisions of the Trust Deed.
2. Exchange for definitive Bonds and purchases
This temporary Global Bond is exchangeable in whole or in part upon the request of the bearer for definitive Bonds only on and subject to the terms and conditions set out below. The definitive Bonds to be issued on such exchange will be in bearer form ("Definitive Bearer Bonds") in the denominations of (pound)1,000, (pound)10,000 and (pound)100,000
each with interest coupons ("Coupons") and one Talon for further interest coupons ("Talon") attached.
On and after 27th February, 1995 this temporary Global Bond may be exchanged in whole or in part at the specified office of the Principal Paying Agent (or such other place as the Trustee may agree) for Definitive Bearer Bonds and the Issuer shall procure that the Principal Paying Agent shall issue and deliver, in full or partial exchange for this temporary Global Bond, Definitive Bearer Bonds (together with the Coupons and Talons appertaining thereto) in an aggregate principal amount equal to the principal amount of this temporary Global Bond submitted for exchange Provided that Definitive Bearer Bonds will be so issued and delivered only if and to the extent that there shall have been presented to the Issuer a certificate from Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System ("Euroclear") or from Cedel, societe anonyme ("Cedel") substantially in the form of the certificate attached as Exhibit A.
Any person who would, but for the provisions of this temporary Global Bond and the Trust Deed, otherwise be entitled to receive a Definitive Bearer Bond or Bonds shall not be entitled to require the exchange of an appropriate part of this temporary Global Bond for a Definitive Bearer Bond or Definitive Bearer Bonds unless and until he shall have delivered or caused to be delivered to Euroclear or Cedel a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Cedel in Luxembourg and the specified office of each of the Paying Agents).
Upon (i) any exchange of a part of this temporary Global Bond for a Definitive Bearer Bond or Definitive Bearer Bonds or (ii) the purchase by or on behalf of the Issuer or any Subsidiary) of the Issuer and cancellation of a part of this temporary Global Bond in accordance with the Conditions, the portion of the principal amount hereof so exchanged or so purchased and cancelled shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part II of the Schedule hereto, whereupon the principal amount hereof shall be reduced for all purposes by the amount so exchanged or so purchased and cancelled and endorsed.
3. Payments
Until the entire principal amount of this temporary Global Bond has been extinguished, this temporary Global Bond shall in all respects be entitled to the same benefits as the Definitive Bearer Bonds and shall be entitled to the benefit of and be bound by the Trust Deed, except that the holder of this temporary Global Bond shall not (unless upon due presentation of this temporary Global Bond for exchange, delivery of the appropriate number of Definitive Bearer Bonds (together with the Coupons and Talons appertaining thereto) is improperly withheld or refused and such withholding or refusal is continuing at the relevant payment date be entitled to receive any payment of interest on this temporary Global Bond except upon certification as hereinafter provided. Upon any payment of principal or interest on this temporary
Global Bond the amount so paid shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part I of the Schedule hereto.
Payments of interest in respect of Bonds for the time being represented by this temporary Global Bond shall be made to the bearer only upon presentation to the Issuer or its agent of a certificate from Euroclear or from Cedel substantially in the form of the certificate attached as Exhibit A. Any person who would, but for the provisions of this temporary Global Bond and of the Trust Deed, otherwise be beneficially entitled to a payment of interest on this temporary Global Bond shall not be entitled to require such payment unless and until he shall have delivered or caused to be delivered to Euroclear or Cedel a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Cedel in Luxembourg and the specified office of each of the Paying Agents).
Upon any payment of principal and endorsement of such payment on Part I of the Schedule hereto, the principal amount of this temporary Global Bond shall be reduced for all purposes by the principal amount so paid and endorsed.
All payments of any amounts payable and paid to the bearer of this temporary Global Bond shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for the moneys payable hereon and on the relevant Definitive Bearer Bonds and Coupons.
4. Authentication
This temporary Global Bond shall not be or become valid or obligatory for any purpose unless and until authenticated by or on behalf of the Principal Paying Agent.
5. Governing law
This temporary Global Bond is governed by, and shall be construed in accordance with, the laws of England.
IN WITNESS whereof the Issuer has caused this temporary Global Bond to be signed manually by a person duly authorised on its behalf.
YORKSHIRE ELECTRICITY GROUP plc
By: ________________________
Duly authorised
Issued in London, England on 17th January, 1995.
Certificate of authentication
This temporary Global Bond is duly authenticated (without recourse, warranty or liability).
...........................
Duly authorised
for and on behalf of
Morgan Guaranty Trust Company
of New York, London Office,
as Principal Paying Agent
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this temporary Global Bond have been made:
Date Interest Principal Remaining principal Notation made paid
Date Interest Principal Remaining Principal Notation
Made Paid Paid Amount of this made on
Temporary Global behalf of
Bond following the Issuer
such payment
(pound) (pound) (pound)
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PART II
EXCHANGES FOR DEFINITIVE BEARER BONDS AND
PURCHASES AND CANCELLATIONS
The following exchanges of a part of this temporary Global Bond for Definitive
Bearer Bonds and/or purchases and cancellations of a part of this temporary
Global Bond have been made:
Date Part of principal Part of Aggregate principal Notation
Made Amount of this Principal amount of this made on
Temporary Amount of this temporary behalf of
Global Bond Temporary Global Bond the Issuer
exchanged for Global Bond following such
Definitive Bearer Purchased and exchange or purchase
Bonds Cancelled and cancellation
(pound) (pound) (pound)
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EXHIBIT A
YORKSHIRE ELECTRICITY GROUP plc
(pound)200,000,000
9 1/4 per cent. Bonds due 2020
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Trust Deed, as of the date hereof, (pound)[ ] principal amount
of the above captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
l.165-12(c)(l)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then this is also to certify with respect to such principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organisations entitled to a portion of such principal amount, certifications with respect to such portion, substantially to the effect set forth in the Trust Deed.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
*Dated
[Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System] [Cedel, societe anonyme]
By.....................................
Authorised Signatory
* To be dated no earlier than the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the temporary Global Bond for Definitive Bearer Bonds.
EXHIBIT B
YORKSHIRE ELECTRICITY GROUP plc
(pound)200,000,000
9 1/4 per cent. Bonds due 2020
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that (a)
are foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(l)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is further to certify
that such financial institution has not acquired the Securities for the purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act"), then this
is also to certify that, except as set forth below (i) in the case of debt
securities, the Securities are beneficially owned by (a) non-U.S. person(s) or
(b) U.S. person(s) who purchased the Securities in transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (y)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to (pound)[ ] of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
* Dated
By ..........................................
[Name of person giving certification] (As, or as agent for, the beneficial owner(s) of those of the Securities to which this certification relates)
* To be dated no earlier than the fifteenth day before the date to which this certification relates, namely (a) the payment date or (b) the date set for the exchange of the temporary Global Bond for Definitive Bearer Bonds.
Part II
- FORM OF ORIGINAL BEARER BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
(pound)[l,000] [10,000] [100,000] XS0055251010 [SERIES] [Serial No.]
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 4112320)
(pound)200,000,000 9 1/4 PER CENT. GUARANTEED BONDS DUE 2020
unconditionally and irrevocably guaranteed as to principal and interest by
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 2366995)
The original issue of the Bonds was authorised by resolutions of the Board of Directors of Yorkshire Electricity Group plc ("YEG") passed on 15th December, 1994 and by resolutions of a duly authorised Committee of the Board of Directors of the Issuer passed on 4th and 5th January, 1995.
By a resolution of the Board of Directors of Yorkshire Electricity Distribution plc (the "Issuer") passed on 28th September, 2001 the Issuer agreed to become the principal debtor in respect of the Bonds in substitution for YEG. By a resolution of the Board of Directors of YEG passed on 4th June, 2001 YEG agreed to guarantee the obligations of the Issuer under the Bonds.
This Bond forms one of a series of Bonds constituted by a Trust Deed dated 17th January, 1995 between YEG and Bankers Trustee Company Limited as trustee for the holders of the Bonds (the "Trustee"), as supplemented by a Second Supplemental Trust Deed dated 19th September, 1996 made between YEG and the Trustee and by a Third Supplemental Trust Deed dated 1st October, 2001 and made between the Issuer, YEG and the Trustee, as modified and restated by an Amended and Restated Trust Deed dated 1st October, 2001 made between the Issuer, YEG and the Trustee (together, the "Trust Deed") and issued either as bearer bonds in the
denominations of (pound)1,000, (pound)10,000 and (pound)100,000 each with
Coupons and one Talon attached or as registered bonds in the denomination of
(pound)1 each or an integral multiple thereof, in an aggregate principal amount
of (pound)200,000,000.
The Issuer for value received and subject to and in accordance with the Conditions endorsed hereon hereby promises to pay to the bearer on 17th January, 2020 (or on such earlier date as the principal sum hereunder mentioned may become repayable in accordance with the said Conditions) the principal sum of:
(pound)[l,000] [10,000] [100,000] ([One] [Ten] [One Hundred Thousand Pounds Sterling)
together with interest on the said principal sum at the rate of 9 1/4 per cent. per annum payable annually in arrear on 17th January and together with such other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
Neither this Bond nor the Coupons and Talon appertaining hereto shall be or become valid or obligatory for any purpose unless and until this Bond has been authenticated by or on behalf of the Principal Paying Agent.
IN WITNESS whereof this Bond has been executed on behalf of the Issuer.
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
By: ________________________
Director
Issued in London, England.
Certificate of authentication
This Bond is duly authenticated (without recourse, warranty or liability).
........................
Duly authorised
for and on behalf of the
Principal Paying Agent
- FORM OF ORIGINAL COUPON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(pound)200,000,000 9 1/4 PER CENT. GUARANTEED BONDS DUE 2020
Coupon appertaining to a Bond in the denomination of (pound)[l,000] [10,000]
[100,000].
This Coupon is separately Coupon for
negotiable, payable to bearer, (pound)[92.50] [925.00] [9,250.00]
and subject to the due on
Conditions of the said Bonds. l7th January, [ ]
|
[No.] (pound)[l,000] [10,000] [100,000] XS0055251010 [Series] [Serial No.]
- FORM OF ORIGINAL TALON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(pound)200,000,000 9 1/4 PER CENT. GUARANTEED BONDS DUE 2020
Talon appertaining to a Bond in the denomination of(pound)[1,000][10,000]
[100,000]
On and after 17th January, [2005/2015] [ten/five] further Coupons [and a further Talon] will be issued at the specified office of any of the Paying Agents set out on the reverse hereof (and or any other or further Paying Agents and/or specified offices as may from time to time be duly appointed and notified to the Bondholders) upon production and surrender of this Talon.
[No.] [1,000][10,000][l00,00] XS0055251010 [Series] [Serial No.]
On the back of the Original Coupons and the Original Talons:
PRINCIPAL PAYING AGENT
CITIBANK, N.A.
5 Carmelite Street
London EC4Y OPA
Telephone: 020 7508 3841
Fax: 020 7508 3878
Attention: Agency and Trust
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OTHER PAYING AGENT
BNP PARIBAS LUXEMBOURG
10A Boulevard Royal
L-2093 Luxembourg
Part III
- FORM OF ORIGINAL REGISTERED BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING TUE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
Certificate Number Transfer No. Holder Code Registration Date Amount (pound)
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 4112320)
(pound)200,000,000 91/4 PER CENT. GUARANTEED BONDS DUE 2020
unconditionally and irrevocably guaranteed as to principal and interest by
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 2366995)
Interest at the rate of 9 1/4 per cent. per annum is payable on the principal amount of this Registered Bond annually in arrear on 17th January in each year, subject to and in accordance with the Conditions endorsed hereon and the provisions of the Trust Deed dated 17th January. 1995 between Yorkshire Electricity Group plc ("YEG") and Bankers Trustee Company Limited as trustee for the holders of the Bonds (the "Trustee"), as supplemented by a Second Supplemental Trust Deed dated 19th September, 1996 made between YEG and the Trustee and by a Third Supplemental Trust Deed dated 1st October, 2001 and made between Yorkshire Electricity Distribution plc (the "Issuer"), YEG and the Trustee, as modified and restated by an Amended and Restated Trust Deed dated 1st October, 2001 made between the Issuer, YEG and the Trustee (together, the "Trust Deed") constituting the Bonds.
THIS IS TO CERTIFY that is/are the registered holder(s) of in principal amount of the above-mentioned Registered Bonds and is/are entitled on 17th January, 2020 (or on such earlier date as such principal amount may become repayable in accordance with the Conditions) to the repayment of such principal amount together with such other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the said Trust Deed.
IN WITNESS whereof this Registered Bond has been executed on behalf of the Issuer.
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
By: __________________________
Director
This Certificate must be surrendered before any transfer of the whole or part of the Registered Bonds herein mentioned can be registered.
- FORM OF TRANSFER OF REGISTERED BOND -
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
(Please print or type name and address (including postal code) of transferee)
(pound) principal amount of this Registered Bond and all rights hereunder, hereby irrevocably constituting and appointing ___________________________ as attorney to transfer such principal amount of this Bond in the register maintained by the Issuer with full power of substitution.
Signature(s) of transferor(s) ________________________
Date: ____________________
N.B.:
1. This form of transfer must be accompanied by such documents, evidence and information as may be required pursuant to the Conditions and must be executed under the hand of the transferor or, if the transferor is a corporation, either under its common seal or under the hand of two of its officers duly authorised in writing and, in such latter case, the document so authorising such officers must be delivered with this form of transfer.
2. In each case the signature(s) must be guaranteed by a commercial bank with a correspondent bank in New York City, Luxembourg or London or by an institution which is a member of The New York Stock Exchange or The American Stock Exchange in New York City or the Luxembourg Stock Exchange or The Stock Exchange in London.
3. The signature(s) on this form of transfer must correspond with the name(s) at it/they appear(s) on the face of this Registered Bond in every particular, without alteration or enlargement or any change whatever.
4. Registered Bonds are only transferable in amounts of (pound)1 or any integral multiples thereof.
THE SECOND SCHEDULE
- CONDITIONS OF THE BONDS -
The following is the text of the terms and conditions of the Bonds which (subject to amendment) will be deemed to be endorsed on each Bond in definitive form:
The (pound)200,000,000 9 1/4 per cent. Guaranteed Bonds due 2020 (the "Bonds", which expression shall in these Terms and Conditions, unless the context otherwise requires, include any further bonds issued pursuant to Condition 19 and forming a single series with the Bonds) of Yorkshire Electricity Distribution plc (the "Issuer") are constituted by a trust deed dated 17th January, 1995 (the "Principal Trust Deed") supplemented by a second supplemental trust deed dated 19th September, 1996 (the "Second Supplemental Trust Deed") both made between Yorkshire Electricity Group plc ("YEG") and Bankers Trustee Company Limited (the "Trustee", which expression shall include any successor) as trustee for the holders of the Bonds (the "Bondholders"), as further supplemented by a third supplemental trust deed (the "Third Supplemental Trust Deed") dated 1st October, 2001 and made between the Issuer, YEG (in its capacity as guarantor, the "Guarantor") and the Trustee. The Third Supplemental Trust Deed includes the form of amended and restated trust deed relating to the Bonds dated 1st October, 2001 (the "Amended and Restated Trust Deed") made between the Issuer, the Guarantor and the Trustee. The Principal Trust Deed, the Second Supplemental Trust Deed and the Third Supplemental Trust Deed, as amended and restated by the Amended and Restated Trust Deed, are together referred to as the "Trust Deed". The issue of the Bonds was authorised by resolutions of the board of directors of YEG passed on 15th December, 1994 and by resolutions of a duly authorised committee of the board of directors of YEG passed on 4th and 5th January, 1995. The substitution of the Issuer in place of YEG as issuer of the Bonds and the giving of the Guarantee (as defined below) was authorised by resolutions of the board of directors of YEG passed on 4th June, 2001. The substitution of the Issuer in place of YEG as issuer of the Bonds was authorised by resolutions of the board of directors of the Issuer passed on 28th September, 2001. The Bonds are on issue, listed on The London Stock Exchange plc (the "London Stock Exchange"). The statements in these Terms and Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. The Bonds are also issued with the benefit of an agency agreement dated 17th January, 1995 (the "Principal Agency Agreement") made between YEG, Morgan Guaranty Trust Company of New York, London office, as principal paying agent (the "Principal Paying Agent", which expression shall include any successor), The Royal Bank of Scotland plc as registrar (the "Registrar", which expression shall include any successor), the other paying agents named therein (together with the Principal Paying Agent, the "Paying Agents", which expression shall include any additional or successor paying agents) and the Trustee supplemented by a supplemental agency agreement dated 1st October, 2001 (the "Supplemental Agency Agreement") made between the Issuer, the Guarantor, the Registrar (being Computershare Investor Services PLC, as successor to The Royal Bank of Scotland plc in that capacity), the Paying Agents (including Citibank, N.A. as principal paying agent, being the successor to Morgan Guaranty Trust Company of New York, London office in that capacity) and the Trustee. The Principal Agency Agreement and the Supplemental Agency Agreement are together referred to as the "Agency Agreement". Copies of the Trust Deed and the Agency Agreement are available for inspection during normal business hours by the Bondholders and the holders of the interest coupons appertaining to the Bonds (respectively, the "Couponholders" and the "Coupons",
which latter expression shall, unless the context otherwise requires, include the Talons referred to below) at the registered office for the time being of the Trustee, being at 1st October, 2001 at Winchester House, I Great Winchester Street, London EC2N 2DB, and at the specified office of each of the Paying Agents and the Registrar. The Bondholders and the Couponholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement.
1. Form, Denominations and Title
The Bonds are in bearer form, serially numbered, in the denominations of (pound)1,000, (pound)10,000 and (pound)100,000 each ("Bearer Bonds") with Coupons and one Talon for further Coupons (a "Talon") attached on issue and in registered form in the denominations of (pound)1 and integral multiples thereof ("Registered Bonds") without interest coupons. Title to the Bearer Bonds and to the Coupons will pass by delivery and title to the Registered Bonds will pass upon the registration of transfers in accordance with the provisions of the Agency Agreement and the Trust Deed. Bearer Bonds of one denomination cannot be exchanged for Bearer Bonds of another denomination.
The Issuer, the Guarantor, any Paying Agent, the Registrar and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bearer Bond and the holder of any Coupon and the registered holder of any Registered Bond as the absolute owner for all purposes (whether or not the Bond or Coupon shall be overdue and notwithstanding any notice of ownership or writing on the Bond or Coupon or any notice of previous loss or theft of the Bond or Coupon).
2. Transfer and Exchange
(a) Transfer of Registered Bonds
A Registered Bond may be transferred in whole or in part (in the principal amount of (pound)1 or any integral multiple thereof) by the transferor depositing the Registered Bond for registration of the transfer of the Registered Bond (or the relevant part of the Registered Bond) at the specified office of the Registrar, with the form of transfer endorsed on the Registered Bond duly completed and signed by or on behalf of the transferor and upon the Registrar after due and careful enquiry being satisfied with the documents of title and the identity of the person making the request and subject to such reasonable regulations as the Issuer and the Registrar may (with the prior approval of the Trustee) prescribe. Subject as provided above, the Registrar will, within three business days of the request (or such longer period as may be required to comply with any applicable fiscal or other laws or regulations), deliver at its specified office to the transferee or (at the risk and, if mailed at the request of the transferee otherwise than by ordinary uninsured mail, at the expense of the transferee) send by mail to such address as the transferee may request a new Registered Bond of a like aggregate principal amount to the Registered Bond (or the relevant part of the Registered Bond) transferred. In the case of the transfer of part only of a Registered Bond, a new Registered Bond in respect of the balance of the Registered
Bond not transferred will be so delivered or (at the risk and, if mailed at the request of the transferor otherwise than by ordinary uninsured mail, at the expense of the transferor) sent by mail to the transferor.
(b) Exchange of Bearer Bonds for Registered Bonds
At the option of the holder thereof, upon presentation to the Principal Paying Agent at any time on or after 27th February, 1995 (the "Exchange Date") of a duly completed and signed request for exchange (in the form for the time being obtainable from the specified office of the Registrar or the Principal Paying Agent) together with the relevant Bearer Bonds, subject to the terms of the Agency Agreement, Bearer Bonds are exchangeable for the same aggregate principal amount of Registered Bonds, provided that (save as provided below) all unmatured Coupons relating thereto are attached thereto or are surrendered therewith. Bearer Bonds may not be surrendered in exchange for Registered Bonds after a Record Date (as defined in Condition 7) and on or before the next following Interest Payment Date (as defined in Condition 6). Interest on a Registered Bond issued on exchange will accrue as from the immediately preceding Interest Payment Date or, if none, as from 17th January, 1995 (the "Closing Date"). Within seven business days of the request, the Registrar will deliver at its specified office to the Bondholder or (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) send by mail to such address as may be specified by the Bondholder in the request a Registered Bond of a like aggregate principal amount to the Bearer Bond exchanged.
(c) Exchange of Registered Bonds for Bearer Bonds
At the option of the holder thereof upon presentation to the Registrar
at any time on or after the Exchange Date of a duly completed and
signed request for exchange (in the form for the time being obtainable
from the specified office of the Registrar or the Principal Paying
Agent (a "Bearer Request")) together with the relevant Registered
Bonds, subject to the terms of the Agency Agreement, Registered Bonds
are exchangeable in whole or in part in principal amounts of
(pound)1,000 or integral multiples thereof for the same aggregate
principal amount of Bearer Bonds. Interest on a Registered Bond
surrendered for exchange will cease to accrue as from the Interest
Payment Date immediately preceding the date of surrender or, if none,
the Closing Date. Bearer Requests may not be presented on or after the
Record Date in respect of any Interest Payment Date up to and including
such Interest Payment Date. Bearer Requests may only be presented, and
Registered Bonds may only be surrendered for exchange for Bearer Bonds,
at the specified office of the Registrar. The Principal Paying Agent
will within seven business days of the date of presentation to the
Registrar of any Bearer Request together with the relevant Registered
Bonds deliver at its specified office (or (at the risk and, if mailed
at the request of the Bondholder otherwise than by ordinary uninsured
mail, at the expense of the Bondholder) mail to such address, other
than an address in the United States, as the Bondholder may request)
the Bearer Bond or Bearer Bonds requested together with all Coupons in
respect of all Interest Payment Dates falling after the date of
presentation. In the case of exchange of part only of the Bonds
represented by a Registered Bond, a Registered Bond for the balance after such exchange will be sent by mail by the Registrar (at the risk and, if mailed at the request of the Bondholder otherwise than by ordinary uninsured mail, at the expense of the Bondholder) to such address, other than an address in the United States, as the Bondholder may request.
(d) Closed Periods
In the event of a partial redemption of Bonds under Condition 8, the Issuer shall not be required:
(i) to register the transfer of Registered Bonds (or parts of Registered Bonds) or to exchange Bearer Bonds for Registered Bonds (or vice versa) during the period beginning on the sixty-fifth day before the date of the partial redemption and ending on the day on which notice is given specifying the serial numbers of Bonds called (in whole or in part) for redemption (both inclusive); or
(ii) to register the transfer of any Registered Bond (or part thereof) called for partial redemption; or
(iii) to exchange any Registered Bond (or part thereof) or Bearer Bond called for partial redemption; except that a Registered Bond (or part thereof) or Bearer Bond called for partial redemption may be exchanged for a Bearer Bond or Registered Bond, respectively, which is simultaneously surrendered not later than the relevant Record Date.
(e) Formalities free of charge
Bondholders will not be required to bear the costs and expenses of effecting any registration of transfer or any exchange as provided above, except for any costs or expenses of delivery other than by ordinary uninsured mail and except that the Issuer may require the payment of a sum sufficient to cover any stamp duty, tax or other governmental charge that may be imposed in relation to the registration or exchange.
(f) Registrar
The name of the initial Registrar and its initial specified office are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the approval of the Trustee, at any time to vary or terminate the appointment of the Registrar and to appoint another Registrar. Notice of any termination or appointment and of any changes in specified office will be given to the Bondholders promptly by the Issuer in accordance with Condition 16.
3. Status
The Bonds and the Coupons are direct, unconditional and, subject to the provisions of Condition 5, unsecured obligations of the Issuer and,
subject as aforesaid, rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency, only to the extent permitted by the applicable laws relating to creditors' rights.
4. Guarantee
The payment of the principal and interest in respect of the Bonds and all other moneys payable by the Issuer under or pursuant to the Trust Deed has been unconditionally and irrevocably guaranteed by the Guarantor (the "Guarantee") in the Trust Deed. The obligations of the Guarantor under the Guarantee constitute direct, unconditional and (subject to the provisions of Condition 5) unsecured and unsubordinated obligations of the Guarantor and (subject as provided above) rank and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the Guarantor, present and future, but, in the event of insolvency, only to the extent permitted by applicable laws relating to creditors' rights.
5. Negative Pledge
So long as any of the Bonds remains outstanding (as defined in the Trust Deed) the Issuer and the Guarantor will ensure that no Relevant Indebtedness (as defined below) of the Issuer, the Guarantor or any Distribution Subsidiary (as defined below) or of any other person and no guarantee by the Issuer, the Guarantor or any Distribution Subsidiary of any Relevant Indebtedness of any other person will be secured by a mortgage, charge, lien, pledge or other security interest (each a "Security Interest") upon, or with respect to, any of the present or future business, undertaking, assets or revenues (including any uncalled capital) of the Issuer, the Guarantor or any Distribution Subsidiary unless the Issuer and the Guarantor shall, before or at the same time as the creation of the Security Interest, take any and all action necessary to ensure that:
(i) all amounts payable by the Issuer under the Bonds, the Coupons and the Trust Deed, or by the Guarantor under the Guarantee, are secured equally and rateably with the Relevant Indebtedness or guarantee, as the case may be, by the Security Interest to the satisfaction of the Trustee; or
(ii) such other Security Interest or guarantee or other arrangement
(whether or not including the giving of a Security Interest)
is provided in respect of all amounts payable by the Issuer
under the Bonds, the Coupons and the Trust Deed, or by the
Guarantor under the Guarantee, either (i) as the Trustee shall
in its absolute discretion deem not materially less beneficial
to the interests of the Bondholders or (ii) as shall be
approved by an Extraordinary Resolution (as defined in the
Trust Deed) of the Bondholders
save that the Issuer, the Guarantor or any Distribution Subsidiary may create or have outstanding a Security Interest in respect of any of its Relevant Indebtedness and/or any guarantees given by the Issuer, the
Guarantor or any Distribution Subsidiary in respect of any Relevant Indebtedness of any other person (without the obligation to provide a Security Interest or guarantee or other arrangement in respect of the Bonds, the Coupons and the Trust Deed as aforesaid) where such Relevant Indebtedness has an initial maturity falling not earlier than 17th January, 2020 and is of a maximum aggregate amount outstanding at any time not exceeding the greater of (pound)200,000,000 and 20 per cent. of the Capital and Reserves (as defined below).
For the purposes of these Terms and Conditions:
(A) "Capital and Reserves" means the aggregate of:
(i) the amount paid up or credited as paid up on the share capital of the Guarantor; and
(ii) the total of the capital, revaluation and revenue reserves of the Group, including any share premium account, capital redemption reserve and credit balance on the profit and loss account, but excluding sums set aside for taxation and amounts attributable to outside shareholders in Subsidiary Undertakings (as defined below) and deducting any debit balance on the profit and loss account,
all as shown in the then latest audited consolidated balance sheet of the Group prepared in accordance with the historical cost convention (as modified by the revaluation of certain fixed assets) for the purposes of the Companies Act 1985, but adjusted as may be necessary in respect of any variation in the paid up share capital or share premium account of the Guarantor since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiary Undertakings comprising the Group and/or as the Auditors (as defined in the Trust Deed) may consider appropriate.
A report by the Auditors as to the amount of the Capital and Reserves at any given time shall, in the absence of manifest error, be conclusive and binding on all parties;
(B) "Distribution Licence" means the electricity distribution licence granted under section 6(l)(c) of the Electricity Act, as amended by the Utilities Act 2000, to the Issuer;
(C) "Distribution Subsidiary" means any Subsidiary of the Guarantor (other than the Issuer) which holds the Distribution Licence from time to time;
(D) "Excluded Subsidiary" means any Subsidiary of the Guarantor (other than the Issuer or a Distribution Subsidiary):
(i) which is a single purpose company whose principal assets and business are constituted by the ownership, acquisition, development and/or operation of an asset;
(ii) none of whose indebtedness for borrowed money in respect of the financing of such ownership, acquisition, development and/or operation of an asset is subject to any recourse whatsoever to any member of the Group (other than another Excluded Subsidiary) in respect of the repayment thereof, except as expressly referred to in paragraph (G)(ii)(3); and
(iii) which has been designated as such by the Guarantor by written notice to the Trustee, provided that the Guarantor may give written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary, whereupon it shall cease to be an Excluded Subsidiary;
(E) "Group" means the Guarantor and its Subsidiary Undertakings;
(F) "indebtedness for borrowed money" means any present or future indebtedness (whether being principal, premium, interest or other amounts) for or in respect of (i) money borrowed, (ii) liabilities under or in respect of any acceptance or acceptance credit, or (iii) any notes, bonds, debentures, debenture stock, loan stock or other securities offered, issued or distributed whether by way of public offer, private placing, acquisition consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash;
(G) "Project Finance Indebtedness" means any indebtedness for borrowed money to finance the ownership, acquisition, development and/or operation of an asset:
(i) which is incurred by an Excluded Subsidiary; or
(ii) in respect of which the person or persons to whom any such indebtedness for borrowed money is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than an Excluded Subsidiary) for the repayment thereof other than:
(1) recourse to such borrower for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from such asset; and/or
(2) recourse to such borrower for the purpose only of enabling amounts to be claimed in respect of such indebtedness for borrowed money in an enforcement of any encumbrance given by such borrower over such asset or the income, cash flow or other proceeds deriving therefrom (or given by any shareholder or the like in
the borrower over its shares or the like in the capital of the borrower) to secure such indebtedness for borrowed money, provided that (aa) the extent of such recourse to such borrower is limited solely to the amount of any recoveries made on any such enforcement, and (bb) such person or persons are not entitled, by virtue of any right or claim arising out of or in connection with such indebtedness for borrowed money, to commence proceedings for the winding up or dissolution of the borrower or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of the borrower or any of its assets (save for the assets the subject of such encumbrance); and/or
(3) recourse to such borrower generally, or directly or indirectly to a member of the Group, under any form of assurance, undertaking or support, which recourse is limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for breach of an obligation (not being a payment obligation or an obligation to procure payment by another or an indemnity in respect thereof or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against whom such recourse is available;
(H) "Relevant Indebtedness" means any present or future indebtedness (whether being principal, premium, interest or other amounts) in the form of or represented by notes, bonds, debentures, debenture stock, loan stock or other securities, whether issued for cash or in whole or in part for a consideration other than cash, and which, with the agreement of the person issuing the same are quoted, listed or ordinarily dealt in on any stock exchange or recognised over-the-counter or other securities market, but shall in any event not include Project Finance Indebtedness;
(I) "Subsidiary" means a subsidiary within the meaning of Section 736 of the Companies Act 1985;
(J) "Subsidiary Undertaking" shall have the meaning given to it by
Section 258 of the Companies Act 1985 (but shall exclude any
undertakings (as defined in the Companies Act 1985) whose
accounts are not included in the then latest published audited
consolidated accounts of the Guarantor nor (in the case of an
undertaking which has first become a subsidiary undertaking of
a member of the Group since the date as at which any such
audited accounts were prepared) would its accounts have been
so included or consolidated if it had become so on or before
that date); and
(K) any reference to an obligation being guaranteed shall include a reference to an indemnity being given in respect of the obligation.
6. Interest
The Bonds bear interest from (and including) the Closing Date at the rate of 9 1/4 per cent. per annum, payable annually in arrear on 17th January in each year (each an "Interest Payment Date"), the first such payment to be made on 17th January, 1996 and to amount to a full year's interest.
Each Bond or, in the case of the redemption of part only of a Registered Bond, that part only of the Registered Bond will cease to bear interest from its due date for redemption unless, upon due presentation, payment of the principal in respect of the Bond is improperly withheld or refused or unless default is otherwise made in respect of such payment, in which event interest shall continue to accrue as provided in the Trust Deed.
When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of a 360 day year consisting of 12 months of 30 days each.
7. Payments and Exchange of Talons
Payments of principal and interest in respect of each Bearer Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Bearer Bond, except that payments of interest due on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupons, in each case at the specified office of any of the Paying Agents.
Payments in respect of each Bearer Bond will be made at the specified office of any Paying Agent, at the option of the holder, by sterling cheque drawn on, or by transfer to a sterling account maintained by the payee with, a bank in London, subject in all cases to any applicable fiscal or other laws and regulations, but without prejudice to the provisions of Condition 10.
Each Bearer Bond should be presented for payment together with all relative unmatured Coupons, failing which the full amount of any relative missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupon which the amount so paid bears to the total amount due) will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner mentioned above against presentation and surrender (or, in the case of part payment only, endorsement) of the relative missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 10) in respect of the relevant Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 11), or, if later, five years after the date on which the Coupon would have become due, but not thereafter.
Payments of principal in respect of each Registered Bond will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the Registered Bond at the specified office of
the Registrar in London by sterling cheque drawn on a bank in London. Payments of interest on each Registered Bond will be made by sterling cheque drawn on a bank in London and mailed on the Business Day (as defined below) in London immediately preceding the relevant due date to the holder (or to the first named of joint holders) of the Registered Bond appearing on the register at the close of business on the seventh day before the relevant due date (the "Record Date") at his address shown on the register on the Record Date. Upon application of the holder to the specified office of the Registrar, not less than three Business Days in London before the due date for any payment in respect of a Registered Bond, the payment may be made (in the case of payment of principal against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Registered Bond as provided above) by transfer on the due date to a sterling account maintained by the payee with a bank in London. Payments in respect of principal and interest on Registered Bonds are subject in all cases to any fiscal or other laws and regulations applicable in the place of payment, but without prejudice to the provisions of Condition 10.
A holder shall be entitled to present a Bond or Coupon for payment only on a Presentation Date and shall not be entitled to any further interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 11):
(a) is or falls after the relevant due date but, if the due date is not or was not a Business Day in London, is or falls after the next following such Business Day; and
(b) is a Business Day in the place of the specified office of the Paying Agent (or the Registrar in the case of payments of principal in respect of Registered Bonds) at which the Bond or Coupon is presented for payment and, in the case of payment by transfer to a sterling account in London as referred to above, in London.
"Business Day" means, in relation to any place, a day on which commercial banks and foreign exchange markets settle payments in that place.
On and after the Interest Payment Date on which the final Coupon comprised in any Coupon sheet matures, the Talon comprised in the Coupon Sheet may be surrendered at the specified office of any Paying Agent in exchange for a further Coupon sheet (including any appropriate further Talon), subject to the provisions of Condition 11. Each Talon shall, for the purposes of these Conditions, be deemed to mature on the Interest Payment Date on which the final Coupon comprised in the relative Coupon sheet matures.
The names of the Paying Agents and their specified offices are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that it will at all times maintain at least two Paying Agents having specified offices in
separate European cities approved by the Trustee, one of which, so long as the Bonds are listed on the London Stock Exchange, shall be London or such other place as the London Stock Exchange may approve and one of which shall be outside the United Kingdom. Notice of any termination or appointment and of any changes in specified offices will be given to the Bondholders promptly by the Issuer in accordance with Condition 16.
8. Redemption and Purchase
(a) Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Bonds at their principal amount on 17th January, 2020.
(b) The Issuer may, at any time, having given notice to the Bondholders in accordance with this Condition 8(b) (which notice shall be irrevocable), redeem the Bonds in whole or in part (but if in part, in integral multiples of (pound)1,000,000 in principal amount thereof), at the price which shall be the higher of the following, together with interest accrued up to the date of redemption:
(i) par; and
(ii) that price (the "Redemption Price"), expressed as a percentage rounded to three decimal places (0.0005 being rounded down), at which the Gross Redemption Yield on the Bonds, if they were to be purchased at such price on the third dealing day prior to the publication of the notice of redemption or, in the case of a partial redemption, the first notice of redemption referred to below, would be equal to the Gross Redemption Yield on such dealing day of the 8 3/4 per cent. Treasury Stock 2017 or of such other United Kingdom Government Stock as the Trustee, with the advice of three leading brokers operating in the gilt-edged market and/or gilt-edged market makers, shall determine to be appropriate (the "Reference Stock") on the basis of the middle market price of the Reference Stock prevailing on such dealing day, as determined by UBS Limited or its successors (or such other person(s) as the Trustee may approve).
The Gross Redemption Yield on the Bonds and the Reference Stock will be expressed as a percentage and will be calculated on the basis indicated by the Joint Index and Classification Committee of the Institute and Faculty of Actuaries as reported in the Journal of the Institute of Actuaries, Vol. 105, Part 1, 1978, page 18 or on such other basis as the Trustee may approve.
In the case of a partial redemption of Bonds, Bonds (or, as the case may be, parts of Registered Bonds) to be redeemed will be selected individually by lot in such place as the Trustee may approve and in such manner as the Trustee shall deem to be appropriate and fair without involving any part only of a Bearer Bond, not more than 65 days before the date fixed for redemption. In the case of a redemption of all of the Bonds pursuant to this Condition 8(b), notice will be given to the Bondholders by the Issuer in accordance with Condition 16 once not less than 30 nor more than 60 days before the date fixed for
redemption. In the case of a partial redemption, notice will be so given twice, first not less than 80 nor more than 95 days, and secondly not less than 30 nor more than 60 days, before the date fixed for redemption. Each notice will specify the date fixed for redemption and the redemption price and, in the case of a partial redemption, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of Bonds previously called (in whole or in part) for redemption and not presented for payment and the aggregate principal amount of the Bonds which will be outstanding after the partial redemption. In addition, in the case of a partial redemption, the first notice will specify the period during which exchanges or transfers of Bonds may not be made as provided in Condition 2 and the second notice will specify the serial numbers of the Bonds called (in whole or, in the case of Registered Bonds, in part) for redemption.
Upon the expiry of any such notice as is referred to above, the Issuer shall be bound to redeem the Bonds to which the notice refers at the relative redemption price applicable at the date of such redemption together with interest accrued to but excluding such date.
(c) If as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 17th January, 1995, either (1) the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 10 (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall, in the absence of manifest error, accept such certificate and opinion as sufficient evidence thereof) of (i) a certificate signed by two directors of the Issuer on behalf of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer or, as the case may be, the Guarantor taking reasonable measures available to it and (ii) an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to whom the Trustee shall have no reasonable objection to the effect that such amendment or change has occurred (irrespective of whether such amendment or change is then effective)), or (2) the Guarantor would be unable for reasons outside its control to procure payment by the Issuer and in making payment itself would be required to pay additional amounts, the Issuer may at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 16 (which notice shall be irrevocable), redeem all the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 8(b) prior to any notice being given under this Condition 8(c)) but not some only, at their principal amount together with interest (if any) accrued to the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer or, as the case may be, the Guarantor would be required to pay such additional amounts were a payment in respect of the Bonds then due.
Upon the expiry of any such notice as is referred to above (and subject as provided above), the Issuer shall be bound to redeem the Bonds at their principal amount together with interest accrued to but excluding the redemption date.
(d) The Issuer, the Guarantor or any of the Guarantor's other Subsidiaries may at any time purchase Bonds in any manner and at any price. If purchases are made by tender, tenders must be available to all Bondholders alike.
(e) All Bonds which are redeemed by the Issuer will forthwith be cancelled (together, in the case of Bearer Bonds, with all relative unmatured Coupons attached to the Bearer Bonds or surrendered with the Bearer Bonds) and may not be reissued or resold. Bonds purchased by the Issuer, the Guarantor or any of the Guarantor's other Subsidiaries may be held or reissued or resold or surrendered for cancellation.
9. Redemption at the Option of Bondholders
(a) (i) If, at any time while any of the Bonds remains outstanding, a Restructuring Event (as defined below) occurs and prior to the commencement of or during the Restructuring Period (as defined below) an independent financial adviser (as defined below) shall have certified in writing to the Trustee that such Restructuring Event will not be or is not, in its opinion, materially prejudicial to the interests of the Bondholders, the following provisions of this Condition 9 shall cease to have any further effect in relation to such Restructuring Event.
(ii) If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and (subject to Condition 9(a)(i)):
(A) within the Restructuring Period, either:
(1) if at the time such Restructuring Event occurs there are Rated Securities (as defined below), a Rating Downgrade (as defined below) in respect of such Restructuring Event also occurs; or
(2) if at such time there are no Rated Securities, a Negative Rating Event (as defined below) also occurs; and
(B) an independent financial adviser shall have certified in writing to the Trustee that such Restructuring Event will be or is, in its opinion, materially prejudicial to the interests of the Bondholders (a "Negative Certification"),
then, unless at any time the Issuer shall have given a notice under Condition 8(b) in respect of the Bonds in whole or in part or Condition 8(c) in respect of all of the Bonds, in each case expiring prior to the Put Date (as defined below), the holder of each Bond will, upon the giving of a Put Event Notice (as defined below), have the option (the "Put Option") to require the Issuer to redeem or, at the option of the Issuer, purchase (or procure the purchase of) that Bond on the Put Date at its principal amount together with (or, where purchased, together with an amount equal to) interest (if any) accrued to (but excluding) the Put Date.
A Restructuring Event shall be deemed not to be materially prejudicial to the interests of the Bondholders if, notwithstanding the occurrence of a Rating Downgrade, the rating assigned to the Rated Securities by any Rating Agency (as defined below) is subsequently increased to an investment grade rating (BBB-/Baa3 or their respective equivalents for the time being, or better) prior to any Negative Certification being issued.
Any certification by an independent financial adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event will be or is materially prejudicial to the interests of the Bondholders shall, in the absence of manifest error, be conclusive and binding on the Trustee, the Issuer, the Guarantor and the Bondholders. For the purposes of this Condition 9, an "independent financial adviser" means a financial adviser appointed by the Issuer and the Guarantor and approved by the Trustee (such approval not to be unreasonably withheld or delayed) or, if the Issuer and the Guarantor shall not have appointed such an adviser within 21 days after becoming aware of the occurrence of such Restructuring Event and the Trustee is indemnified to its satisfaction against the costs of such adviser, appointed by the Trustee following consultation with the Issuer.
(b) Promptly upon the Issuer becoming aware that a Put Event (as defined below) has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 16 specifying the nature of the Put Event and the procedure for exercising the Put Option.
(c) To exercise the Put Option, the holder of a Bond must deliver such Bond to the specified office of any Paying Agent, on a day which is a Business Day (as defined in Condition 7) in London and in the place of such specified office falling within the period (the "Put Period") of 45 days after that on which a Put Event Notice is given, accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any Paying Agent (a "Put Notice") and in which the holder may specify a bank account complying with the requirements of Condition 7 to which payment is to be made under this Condition 9. Each Bearer Bond should be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being the fifteenth day after the date of expiry of the Put Period, failing which an amount equal to the face value of any such missing Coupon will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner provided in Condition 7 against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant missing Coupon at any time before the expiry of 10 years after the Relevant Date in respect of the relevant Bearer Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 11) or, if later, five years after the date on which such Coupon would have become due, but not thereafter. The Paying Agent to which such Bond and Put Notice are delivered shall issue to the Bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly
specifies a bank account in the Put Notice to which payment is to be made on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date in each case against presentation and surrender or (as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 7. A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 1, 11, 12, 13, 15 and 17 and for certain other purposes specified in the Trust Deed, receipts issued pursuant to this Condition 9 shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date unless previously redeemed or purchased.
(d) For the purposes of these Terms and Conditions:
(i) A "Negative Rating Event" shall be deemed to have occurred if (A) the Issuer does not either prior to or not later than 14 days after the date of a Negative Certification in respect of the relevant Restructuring Event, seek, and thereupon use all reasonable endeavours to obtain, a rating of the Bonds or any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Guarantor and which is guaranteed on an unsecured and unsubordinated basis by the Guarantor) having an initial maturity of five years or more from a Rating Agency or (B) if it does so seek and use such endeavours, it is unable, as a result of such Restructuring Event, to obtain such a rating of at least investment grade (BBB-/Baa3, or their respective equivalents for the time being).
(ii) A "Put Event" occurs on the date of the last to occur of (aa) a Restructuring Event, (bb) either a Rating Downgrade or, as the case may be, a Negative Rating Event and (cc) the relevant Negative Certification.
(iii) "Rating Agency" means Standard & Poor's Ratings Group or any of its successors or Moody's Investors Service or any of its successors or any rating agency substituted for either of them (or any permitted substitute of them) by the Issuer from time to time with the prior written approval of the Trustee (such approval not to be unreasonably withheld or delayed).
(iv) A "Rating Downgrade" shall be deemed to have occurred in respect of a Restructuring Event if the then current rating assigned to the Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of the Issuer or by its own volition) is withdrawn or reduced from an investment grade rating (BBB-/Baa3, or their respective equivalents for the time being, or better) to a non-investment grade rating (BB+/Ba1, or their respective equivalents for the time being, or worse) or, if the Rating Agency shall then have already rated the Rated Securities below investment grade (as described above), the rating is lowered one full rating category.
(v) "Rated Securities" means the Bonds, if at any time and for so long as they shall have a rating from a Rating Agency, and
otherwise any other unsecured and unsubordinated debt of the Issuer (or of any Subsidiary of the Guarantor and which is guaranteed on an unsecured and unsubordinated basis by the Guarantor or the Issuer) having an initial maturity of five years or more which is rated by a Rating Agency.
(vi) "Restructuring Event" means the occurrence of any one or more of the following events:
(A) (aa) the Secretary of State for Trade and Industry (or
any successor) giving the Issuer or any Distribution Subsidiary written notice of revocation of the Distribution Licence or (bb) the Issuer or any Distribution Subsidiary agreeing in writing with the Secretary of State for Trade and Industry (or any successor) to any revocation or surrender of the Distribution Licence or (cc) any legislation (whether primary or subordinate) being enacted terminating or revoking the Distribution Licence, except in any such case in circumstances where a licence or licences on substantially no less favourable terms is or are granted to the Issuer or a wholly-owned Subsidiary of the Issuer (the "Relevant Subsidiary") and in the case of such Relevant Subsidiary at the time of such grant it either executes in favour of the Trustee an unconditional and irrevocable guarantee in respect of |
the Bonds in such form as the Trustee may approve (such approval not to be unreasonably withheld or delayed) or becomes the primary obligor under the Bonds in accordance with Condition 14; or
(B) any modification (other than a modification which is of a formal, minor or technical nature) being made to the terms and conditions of the Distribution Licence on or after 1st October, 2001 unless two directors of the Guarantor have certified in good faith to the Trustee that the modified terms and conditions are not materially less favourable to the business of the Guarantor; or
(C) any legislation (whether primary or subordinate) is
enacted which removes, qualifies or amends (other than
an amendment which is of a formal, minor or technical
nature) the duties of the Secretary of State for Trade
and Industry (or any successor) and/or the Gas and
Electricity Markets Authority (or any successor) under
Section 3 of the Electricity Act 1989, as amended by
the Utilities Act 2000, unless two directors of the
Guarantor have certified in good faith to the Trustee
that such removal, qualification or amendment does not
have a materially adverse effect on the financial
condition of the Guarantor.
(vii) "Restructuring Period" means:
(A) if at the time a Restructuring Event occurs there are Rated Securities, the period of 90 days starting from and including the day on which that Restructuring Event occurs; or
(B) if at the time a Restructuring Event occurs there are no Rated Securities, the period staffing from and including the day on which that Restructuring Event occurs and ending on the day 90 days following the later of (aa) the date on which the Issuer shall seek to obtain a rating pursuant to Condition 9(d)(i) prior to the expiry of the 14 days referred to in the definition of Negative Rating Event and (bb) the date on which a Negative Certification shall have been given to the Issuer in respect of that Restructuring Event.
(viii) A Rating Downgrade or a Negative Rating Event or a non-investment grade rating shall be deemed not to have occurred as a result or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating
or, where applicable, declining to assign a rating of at least investment grade as provided in this Condition 9 does not announce or publicly confirm or inform the Trustee in |
writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstance comprised in or arising as a result of the applicable Restructuring Event.
The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and until it shall have actual knowledge or express notice pursuant to the Trust Deed to the contrary the Trustee may assume that no Restructuring Event, Negative Rating Event or other such event has occurred.
10. Taxation
All payments in respect of the Bonds or the Guarantee by the Issuer or, as the case may be, the Guarantor shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of the United Kingdom, or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, unless the withholding or deduction of the Taxes is required by law. In that event, the Issuer or, as the case may be, the Guarantor will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Bonds or, as the case may be, Coupons in the absence of the withholding or deduction; except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
(a) to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of his having some connection with the United Kingdom other than the mere holding of the Bond or Coupon; or
(b) where the Coupon is presented for payment in the United Kingdom; or
(c) presented for payment more than 30 days after the Relevant Date except to the extent that a holder would have been entitled to additional amounts on presenting the same for payment on the last day of such period of 30 days; or
(d) to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority; or
(e) where the withholding or deduction is imposed on payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(f) presented for payment by or on behalf of a holder who would have been able to avoid the withholding or deduction by presenting the relevant Bond or Coupon to another Paying Agent in a Member State of the EU.
As used herein, "Relevant Date" means the date on which the payment first becomes due but, if the full amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 16.
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall be deemed also to refer to any additional amounts which may be payable under this Condition or under any undertakings given in addition to, or in substitution for, this Condition pursuant to the Trust Deed.
11. Prescription
Bonds (whether in bearer or registered form) and Coupons (which for this purpose shall not include Talons) will become void unless presented for payment within periods of 10 years (in the case of principal) and five years (in the case of interest) from the Relevant Date in respect of the Bonds or, as the case may be, the Coupons, subject to the provisions of Condition 7. There shall not be included in any Coupon sheet issued upon exchange of a Talon any Coupon which would be void upon issue under this Condition or Condition 7.
12. Events of Default
The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding or if so directed by an Extraordinary Resolution of the Bondholders shall, (but, in the case of the happening of any of the events mentioned in sub-paragraphs (b), (c), (e), (f) and (g) below,
only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Bondholders and subject in each case to being indemnified by, or on behalf of, Bondholders to its satisfaction), give notice to the Issuer that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed) if any of the following events (each an "Event of Default") shall have occurred (unless such Event of Default has been remedied to the satisfaction of the Trustee):
(a) if default is made for a period of 14 days or more in the payment of any principal or the purchase price due in respect of any Bond pursuant to Condition 9 or 21 days or more in the payment of any interest due in respect of the Bonds or any of them; or
(b) if the Issuer fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation as is hereinafter mentioned will be required) such failure continues for the period of 60 days (or such longer period as the Trustee may in its absolute discretion permit) next following the service by the Trustee on the Issuer of notice requiring the same to be remedied; or
(c) if (i) any other indebtedness for borrowed money of the Issuer becomes due and repayable prior to its stated maturity by reason of an event of default (howsoever described) or (ii) any such indebtedness for borrowed money is not paid when due or, as the case may be, within any applicable grace period (as originally provided) or (iii) the Issuer fails to pay when due (or, as the case may be, within any originally applicable grace period) any amount payable by it under any present or future guarantee for, or indemnity in respect of, any indebtedness for borrowed money of any person or (iv) any security given by the Issuer for any indebtedness for borrowed money of any person or any guarantee or indemnity of indebtedness for borrowed money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case where there is a bona fide dispute as to whether the relevant indebtedness for borrowed money or any such guarantee or indemnity as aforesaid shall be due and payable, provided that the aggregate amount of the relevant indebtedness for borrowed money in respect of which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds whichever is the greater of(pound)20,000,000 or its equivalent in other currencies (as determined by the Trustee) or 2 per cent. of the Capital and Reserves, and for the purposes of this sub-paragraph (c), "indebtedness for borrowed money" shall exclude Project Finance Indebtedness and "Capital and Reserves" shall be determined as if, in the definition in clause (A) of Condition 5, the word "Issuer" appeared in place of the word "Guarantor" and the terms "Group" and "Subsidiary Undertakings" shall be determined with reference to the Issuer rather than the Guarantor; or
(d) if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or
(e) if the Issuer shall cease to carry on the whole or
substantially the whole of its business, save for the purposes
of amalgamation, merger, consolidation, reorganisation,
reconstruction or other similar arrangement (i) under which
all or substantially all of its assets are transferred to a
third party or parties (whether associates or not) for full
consideration by the Issuer on an arm's length basis or
(ii) the terms of which have previously been approved in
writing by the Trustee or by an Extraordinary Resolution of
the Bondholders, provided that if the Issuer shall cease to
hold or shall transfer the Distribution Licence it shall be
deemed to have ceased to carry on the whole or substantially
the whole of its business (and exception (i) does not
apply) unless the transferee assumes all the Issuer's
obligations under the Bonds and the Trust Deed as primary
obligor or gives a guarantee in form and substance
acceptable to the Trustee in respect of the obligations of
the Issuer under the Bonds and the Trust Deed; or
(f) if the Issuer shall suspend or shall threaten to suspend payment of its debts generally or shall be declared or adjudicated by a competent court to be unable, or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Section 1of the Insolvency Act 1986; or
(g) if a receiver, administrative receiver, administrator or other similar official shall be appointed in relation to the Issuer or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or an encumbrancer shall take possession of, the whole or a substantial part of the assets or any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 90 days (or such longer period as the Trustee may in its absolute discretion permit).
For the purposes of sub-paragraph (f) above, Section 123(l)(a) of the Insolvency Act 1986 shall have effect as if for "(pound)750" there was substituted "(pound)250,000" or such higher figure as the Gas and Electricity Markets Authority (or any successor) may from time to time determine by notice in writing to the Secretary of State for Trade and Industry (or any successor).
The Issuer shall not be deemed to be unable to pay its debts for the purposes of sub-paragraph (f) above if any such demand as is mentioned
in Section 123(1)(a) of the Insolvency Act 1986 is being contested in good faith by the Issuer with recourse to all appropriate measures and procedures or if any such demand is satisfied before the expiration of such period as may be stated in any notice given by the Trustee under the first paragraph of this Condition 11.
13. Enforcement
The Trustee may at any time, at its discretion and without notice, take
such proceedings against the Issuer or the Guarantor as it may think
fit to enforce the provisions of the Trust Deed, the Bonds and the
Coupons but it shall not be bound to take any proceedings or any other
action in relation to the Trust Deed, the Bonds or the Coupons unless
(a) it shall have been so directed by an Extraordinary Resolution of
the Bondholders or so requested in writing by the holders of at least
one-quarter in principal amount of the Bonds then outstanding, and (b)
it shall have been indemnified to its satisfaction. No Bondholder or
Couponholder shall be entitled to proceed directly against the Issuer
or the Guarantor unless the Trustee, having become bound so to proceed,
fails so to do within a reasonable period and such failure shall be
continuing.
14. Substitution
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer and the Guarantor to the substitution in place of the Issuer or the Guarantor (or, in either case, of any previous substitute under this Condition) as the principal debtor under or, as the case may be, guarantor in respect of, the Bonds, the Coupons and the Trust Deed of any Subsidiary of the Issuer (including a Relevant Subsidiary, as defined in, and subject to compliance with Condition 9(d)(vi)) or the Guarantor, subject to (a) the Bonds being unconditionally and irrevocably guaranteed by the Issuer (save where the Issuer has transferred the Distribution Licence to the substituted Subsidiary) or the Guarantor, (b) the Trustee being satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution, and (c) certain other conditions set out in the Trust Deed being complied with.
15. Replacement of Bonds and Coupons
Should any Bond or Coupon be lost, stolen, mutilated, defaced or destroyed, it may be replaced at the specified office of the Paying Agent in London, in the case of a Bearer Bond or Coupon, or the Registrar, in the case of a Registered Bond, upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must be surrendered before replacements will be issued.
16. Notices
Notices to holders of Registered Bonds will be mailed to them at their respective addresses in the Register and deemed to have been given on the fourth weekday after the date of mailing, provided that, if at any time by reason of suspension or curtailment (or expected suspension or
curtailment) of postal services within the United Kingdom or elsewhere, the Issuer is unable effectively to give notice to holders of Registered Bonds through the post, notices to holders of Registered Bonds will be valid if given in the same manner as other notices set out below.
Other notices to the Bondholders will be valid if published in a leading English language daily newspaper published in London or such other English language daily newspaper with general circulation in Europe as the Trustee may approve. Any notice shall be deemed to have been given on the date of publication or, if so published more than once, on the date of the first publication. It is expected that publication will normally be made in the Financial Times. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may approve.
Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Bondholders in accordance with this Condition.
17. Meetings of Bondholders, Modification, Waiver and Authorisation
(a) The Trust Deed contains provisions for convening meetings of the Bondholders to consider any matter affecting their interests, including the modification by Extraordinary Resolution of these Terms and Conditions or the provisions of the Trust Deed. The quorum at any meeting for passing an Extraordinary Resolution will be one or more persons present holding or representing a clear majority in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting one or more persons present whatever the principal amount of the Bonds held or represented by him or them, except that at any meeting, the business of which includes the modification of certain of the provisions of these Terms and Conditions and certain of the provisions of the Trust Deed, the necessary quorum for passing an Extraordinary Resolution will be one or more persons present holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, of the principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of the Bondholders will be binding on all Bondholders, whether or not they are present at the meeting, and on all Couponholders.
(b) The Trustee may agree, without the consent of the Bondholders or Couponholders, to any modification (subject to certain exceptions) of, or to the waiver or authorisation of any breach or proposed breach of, any of these Terms and Conditions or any of the provisions of the Trust Deed which is not, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders or to any modification which is of a formal, minor or technical nature or to correct a manifest error.
(c) In connection with the exercise by it of any of its trusts, powers, authorities or discretions (including, without limitation, any modification, waiver, authorisation or substitution), the Trustee shall have regard to the interests of the Bondholders as a class and, in particular but without limitation, shall not have regard to the
consequences of the exercise of its trusts, powers, authorities or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders or Couponholders except to the extent already provided for in Condition 10 and/or any undertaking given in addition to, or in substitution for, Condition 10 pursuant to the Trust Deed.
(d) Any modification, waiver or authorisation shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 16.
18. Indemnification of the Trustee
The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified to its satisfaction.
19. Further Issues
The Issuer is at liberty from time to time without the consent of the Bondholders or Couponholders to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may determine at the time of the issue. Any further bonds or notes which are to form a single series with the outstanding bonds or notes of any series (including the Bonds). constituted by the Trust Deed or any supplemental deed shall, and any other further bonds or notes may (with the consent of the Trustee), be constituted by a deed supplemental to the Trust Deed. The Trust Deed contains provisions for convening a single meeting of the Bondholders and the holders of bonds or notes of other series in certain circumstances where the Trustee so decides.
20. Contracts (Rights of Third Parties) Act 1999
No rights are conferred on any person under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Bond, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
21. Governing Law
The Trust Deed, the Bonds and the Coupons are governed by, and will be construed in accordance with, English law.
PRINCIPAL PAYING AGENT
CITIBANK, N.A.
5 Carmelite Street
London EC4Y OPA
Telephone: 020 7508 3841
Fax: 020 7508 3878
Attention: Agency and Trust
OTHER PAYING AGENT
BNP PARIBAS LUXEMBOURG
10A Boulevard Royal
L-2093 Luxembourg
REGISTRAR
COMPUTERSHARE SERVICES PLC
The Pavilions
Bridgewater Road
Bristol
BS99 7NH
and/or such other or further Principal Paying Agent, other Paying Agents and Registrar and/or specified offices as may from time to time be appointed by the Issuer or the Guarantor with the approval of the Trustee and notice of which has been given to the Bondholders.
THE THIRD SCHEDULE
REGISTER AND TRANSFER OF REGISTERED SECURITIES
1. The Issuer shall at all times ensure that the Registrar maintains in Bristol, London, or at such other place as the Trustee may agree, a register showing the amount of the Registered Securities from time to time outstanding and the dates of issue and all subsequent transfers and changes of ownership thereof and the names and addresses of the holders of the Registered Securities. The Trustee and the holders of the Registered Securities or any of them and any person authorised by it or any of them may at all reasonable times during office hours inspect the register and take copies of or extracts from it. The register may be closed by the Issuer for such periods at such times (not exceeding in total 30 days in any one year) as it may think fit.
2. Each Registered Security shall have an identifying certificate number which shall be entered on the register.
3. The Registered Securities are transferable by execution of the form of transfer endorsed thereon under the hand of the transferor or, where the transferor is a corporation, under its common seal or under the hand of two of its officers duly authorised in writing. In each case the signature(s) must be guaranteed by a commercial bank with a correspondent bank in New York City, Luxembourg or London or by an institution which is a member of The New York Stock Exchange or The American Stock Exchange in New York City or the Luxembourg Stock Exchange or The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited.
4. The Registered Securities to be transferred must be delivered for registration to the specified office of the Registrar or any Transfer Agent with the form of transfer endorsed thereon duly completed and executed and must be accompanied by such documents, evidence and information as may be required pursuant to the Conditions and such other evidence as the Issuer may reasonably require to prove the title of the transferor or his right to transfer the Registered Securities and, if the form of transfer is executed by some other person on his behalf or in the case of the execution of a form of transfer on behalf of a corporation by its officers, the authority of that person or those persons to do so.
5. The executors or administrators of a deceased holder of Registered Securities (not being one of several joint holders) and in the case of the death of one or more of several joint holders the survivor or survivors of such joint holders shall be the only person or persons recognised by the Issuer as having any title to such Registered Securities.
6. Any person becoming entitled to Registered Securities in consequence of the death or bankruptcy of the holder of such Registered Securities may upon producing such evidence that he holds the position in respect of which he proposes to act under this paragraph or of his title as the Issuer shall require be registered himself as the holder of such Registered Securities or, subject to the preceding paragraphs as to transfer, may transfer such Registered Securities. The Issuer shall be at liberty to retain any amount payable upon the Registered Securities
to which any person is so entitled until such person shall be registered as aforesaid or shall duly transfer the Registered Securities.
7. Unless otherwise requested by him, the holder of Registered Securities of any series shall be entitled to receive only one Registered Security in respect of his entire holding of such series.
8. The joint holders of Registered Securities of any series shall be entitled to one Registered Security only in respect of their joint holding of such series which shall, except where they otherwise direct, be delivered to the joint holder whose name appears first in the register of the holders of Registered Securities in respect of such joint holding.
9. Where a holder of Registered Securities has transferred part only of his holding of any series there shall be delivered to him without charge a Registered Security in respect of the balance of such holding.
10. The Issuer shall make no charge to the Holders for the registration of any holding of Registered Securities or any transfer thereof or for the issue thereof or for the delivery thereof at the specified office of the Registrar or of any Transfer Agent or by post to the address specified by the Holder. If any Holder entitled to receive a Registered Security wishes to have the same delivered to him otherwise than at the specified office of the Registrar or of any Transfer Agent, such delivery shall be made, upon his written request to the Registrar or such Transfer Agent, at his risk and (except where sent by post to the address specified by the Holder) at his expense.
11. The holder of a Registered Security may (to the fullest extent permitted by applicable laws) be treated at all times, by all persons and for all purposes as the absolute owner of such Registered Security notwithstanding any notice any person may have of the right, title, interest or claim of any other person thereto. The Issuer and the Trustee shall not be bound to see to the execution of any trust to which any Registered Security may be subject and no notice of any trust shall be entered on the register. The holder of a Registered Security will be recognised by the Issuer as entitled to his Registered Security free from any equity, set-off or counterclaim on the part of the Issuer against the original or any intermediate holder of such Registered Security.
THE FOURTH SCHEDULE
PROVISIONS FOR MEETINGS OF HOLDERS
1. (A) As used in this Schedule the following expressions shall have the following meanings unless the context otherwise requires:
(i) "voting certificate" shall mean an English language certificate issued by a Paying Agent and dated in which it is stated:
(a) that on the date thereof Bearer Securities (not being Bearer Securities in respect of which a block voting instruction has been issued and is outstanding in respect of the meeting specified in such voting certificate or any adjourned such meeting) were deposited with such Paying Agent or (to the satisfaction of such Paying Agent) were held to its order or under its control and that no such Bearer Securities will cease to be so deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such certificate or, if later, of any adjourned such meeting; and
(2) the surrender of the certificate to the Paying Agent who issued the same; and
(b) that the bearer thereof is entitled to attend and vote at such meeting and any adjourned such meeting in respect of the Bearer Securities represented by such certificate;
(ii) "block voting instruction" shall mean an English language document issued by a Paying Agent and dated in which:
(a) it is certified that Bearer Securities (not being Bearer Securities in respect of which a voting certificate has been issued and is outstanding in respect of the meeting specified in such block voting instruction and any adjourned such meeting) have been deposited with such Paying Agent or (to the satisfaction of such Paying Agent) were held to its order or under its control and that no such Bearer Securities will cease to be so deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such document or, if later, of any adjourned such meeting; and
(2) the surrender to the Paying Agent not less than 48 hours before the time for which such meeting or any adjourned such meeting is convened of the receipt issued by such Paying Agent in respect of each such deposited Bearer Security which is to be released or (as the case may require) the Bearer Security or Bearer Securities ceasing with the agreement of the Paying Agent to be held to its order or under its control and the giving of notice by the Paying Agent to the Issuer in accordance with paragraph 17 hereof of the necessary amendment to the block voting instruction;
(b) it is certified that each holder of such Bearer Securities has instructed such Paying Agent that the vote(s) attributable to the Bearer Security or Bearer Securities so deposited or held should be cast in a particular way in relation to the resolution or resolutions to be put to such meeting or any adjourned such meeting and that all such instructions are during the period commencing 48 hours prior to the time for which such meeting or any adjourned such meeting is convened and ending at the conclusion or adjournment thereof neither revocable nor capable of amendment;
(c) the aggregate principal amount of the Bearer Securities so deposited or held are listed distinguishing with regard to each such resolution between those in respect of which instructions have been given as aforesaid that the votes attributable thereto should be cast in favour of the resolution and those in respect of which instructions have been so given that the votes attributable thereto should be cast against the resolution; and
(d) one or more persons named in such document (each hereinafter called a "proxy") is or are authorised and instructed by such Paying Agent to cast the votes attributable to the Bearer Securities so listed in accordance with the instructions referred to in (c) above as set out in such document;
(iii) "24 hours" shall mean a period of 24 hours including all or part of a day upon which banks are open for business in both the place where the relevant meeting is to be held and in each of the places where the Paying Agents have their specified offices (disregarding for this purpose the day upon which such meeting is to be held) and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of a day upon which banks are open for business in all of the places as aforesaid; and
(iv) "48 hours" shall mean a period of 48 hours including all or part of two days upon which banks are open for business both in the place where the relevant meeting is to be held and in each of the places where the Paying Agents have their specified offices (disregarding for this purpose the day upon which such meeting is to be held) and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of two days upon which banks are open for business in all of the places as aforesaid.
(B) A holder of a Bearer Security may obtain a voting certificate in
respect of such Bearer Security from a Paying Agent or require a
Paying Agent to issue a block voting instruction in respect of such
Bearer Security by depositing such Bearer Security with such Paying
Agent or (to the satisfaction of such Paying Agent) by such Bearer
Security being held to its order or under its control, in each case
not less than 48 hours before the time fixed for the relevant meeting
and on the terms set out in sub-paragraph (i)(a) or (ii)(a) above (as
the case may be), and (in the case of a block voting instruction)
instructing such Paying Agent to the effect set out in sub-paragraph
(ii)(b) above. The holder of any voting certificate or the proxies
named in any block voting instruction shall for all purposes in
connection with the relevant meeting or adjourned meeting of Holders
be deemed to be the holder of the Bearer Securities to which such
voting certificate or block voting instruction relates and the Paying
Agent with which such Bearer Securities have been deposited or the
person holding the same to the order or under the control of such
Paying Agent shall be deemed for such purposes not to be the holder of
those Bearer Securities.
(C) (i) A holder of Registered Securities may, by an instrument in writing in the English language (a "form of proxy") signed by the holder or, in the case of a corporation, executed under its common seal or signed on its behalf by an attorney or a duly authorised officer of the corporation and delivered to the specified office of the Registrar not less than 48 hours before the time fixed for the relevant meeting, appoint any person (a "proxy") to act on his or its behalf in connection with any meeting of the Holders and any adjourned such meeting.
(ii) Any holder of Registered Securities which is a corporation may by resolution of its directors or other governing body authorise any person to act as its representative (a "representative") in connection with any meeting of the
Holders and any adjourned such meeting.
(iii) Any proxy appointed pursuant to sub-paragraph (i) above or
representative appointed pursuant to sub-paragraph (ii)
above shall so long as such appointment remains in force be
deemed, for all purposes in connection with the relevant
meeting or adjourned meeting of the Holders, to be the
|
holder of the Registered Securities to which such
appointment relates and the holder of the Registered Securities shall be deemed for such purposes not to be the holder.
2. The Issuer, the Guarantor or the Trustee may at any time and the Issuer shall upon a requisition in writing signed by the holders of not less than one-tenth in principal amount of the Securities of any series for the time being outstanding convene a meeting of the Holders and if the Issuer makes default for a period of seven days in convening such a meeting the same may be convened by the Trustee or the requisitionists. Every such meeting shall be held at such time and place as the Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is given and the day on which the meeting is to be held) specifying the place, day and hour of meeting shall be given to the Holders prior to any meeting of the Holders in the manner provided by Condition 16. Such notice, which shall be in the English language, shall state generally the nature of the business to be transacted at the meeting thereby convened but (except for an Extraordinary Resolution) it shall not be necessary to specify in such notice the terms of any resolution to be proposed. Such notice shall include statements, if applicable, to the effect that (i) Bearer Securities may, not less than 48 hours before the time fixed for the meeting, be deposited with Paying Agents or (to their satisfaction) held to their order or under their control for the purpose of obtaining voting certificates or appointing proxies and (ii) the holders of Registered Securities may appoint proxies by executing and delivering a form of proxy in the English language to the specified office of the Registrar not less than 48 hours before the time fixed for the meeting or, in the case of corporations, may appoint representatives by resolution of their directors or other governing body. A copy of the notice shall be sent by post to the Trustee (unless the meeting is convened by the Trustee), to the Issuer (unless the meeting is convened by the Issuer) and to the Guarantor (unless the meeting is convened by the Guarantor).
4. A person (who may but need not be a Holder) nominated in writing by the Trustee shall be entitled to take the chair at the relevant meeting or adjourned meeting but if no such nomination is made or if at any meeting or adjourned meeting the person nominated shall not be present within 15 minutes after the time appointed for holding the meeting or adjourned meeting the Holders present shall choose one of their number to be Chairman. The Chairman of an adjourned meeting need not be the same person as was Chairman of the meeting from which the adjournment took place.
5. At any such meeting one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than one-twentieth of the principal amount of the Securities for the time being outstanding shall (except for the purpose of passing an Extraordinary Resolution) form a quorum for the transaction of business and no business (other than the choosing of a Chairman) shall be transacted at any meeting unless the requisite quorum be present at the commencement of the relevant business. The quorum at any such meeting for passing an Extraordinary Resolution shall (subject as provided below) be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the
aggregate a clear majority in principal amount of the Securities for the time being outstanding PROVIDED THAT at any meeting the business of which includes any of the following matters (each of which shall, subject only to Clause 19(B)(ii), only be capable of being effected after having been approved by Extraordinary Resolution) namely:
(i) reduction or cancellation of the amount payable or, where applicable, modification (except where such modification is, in the opinion of the Trustee, bound to result in an increase), of the method of calculating the amount payable or modification of the date of payment or, where applicable, of the method of calculating the date of payment in respect of any principal, premium or interest in respect of the Securities;
(ii) alteration of the currency in which payments under the Securities and Coupons are to be made;
(iii) alteration of the majority required to pass an Extraordinary Resolution;
(iv) the sanctioning of any such scheme or proposal as is described in paragraph 18(I) below; and
(v) alteration of this proviso or the proviso to paragraph 6 below;
the quorum shall be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than two-thirds of the principal amount of the Securities for the time being outstanding.
6. If within 15 minutes (or such longer period not exceeding 30 minutes as the Chairman may decide) after the time appointed for any such meeting a quorum is not present for the transaction of any particular business, then, subject and without prejudice to the transaction of the business (if any) for which a quorum is present, the meeting shall if convened upon the requisition of Holders be dissolved. In any other case it shall stand adjourned to the same day in the next week (or if such day is a public holiday the next succeeding business day) at the same time and place (except in the case of a meeting at which an Extraordinary Resolution is to be proposed in which case it shall stand adjourned for such period, being not less than 14 clear days nor more than 42 clear days, and to such place as may be appointed by the Chairman either at or subsequent to such meeting and approved by the Trustee). If within 15 minutes (or such longer period not exceeding 30 minutes as the Chairman may decide) after the time appointed for any adjourned meeting a quorum is not present for the transaction of any particular business, then, subject and without prejudice to the transaction of the business (if any) for which a quorum is present, the Chairman may either (with the approval of the Trustee) dissolve such meeting or adjourn the same for such period, being not less than 14 clear days (but without any maximum number of clear days), and to such place as may be appointed by the Chairman either at or subsequent to such adjourned meeting and approved by the Trustee, and the provisions of this sentence shall apply to all further adjourned such meetings. At any adjourned meeting one or more persons present holding
Securities or voting certificates or being proxies or representatives (whatever the principal amount of the Securities so held or represented by them) shall (subject as provided below) form a quorum and shall (subject as provided below) have power to pass any Extraordinary Resolution or other resolution and to decide upon all matters which could properly have been dealt with at the meeting from which the adjournment took place had the requisite quorum been present PROVIDED THAT at any adjourned meeting the quorum for the transaction of business comprising any of the matters specified in the proviso to paragraph 5 above shall be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than one-third of the principal amount of the Securities for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is to be submitted shall be given in the same manner as notice of an original meeting but as if 10 were substituted for 21 in paragraph 3 above and such notice shall state the relevant quorum. Subject as aforesaid it shall not be necessary to give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first instance by a show of hands and in case of equality of votes the Chairman shall both on a show of hands and on a poll have a casting vote in addition to the vote or votes (if any) to which he may be entitled as a Holder or as a holder of a voting certificate or as a proxy or as a representative.
9. At any meeting unless a poll is (before or on the declaration of the result of the show of hands) demanded by the Chairman, the Issuer, the Guarantor the Trustee or any person present holding a Security or a voting certificate or being a proxy or representative (whatever the principal amount of the Securities so held or represented by him) a declaration by the Chairman that a resolution has been carried or carried by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so demanded it shall be taken in such manner and subject as hereinafter provided either at once or after an adjournment as the Chairman directs and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded as at the date of the taking of the poll. The demand for a poll shall not prevent the continuance of the meeting for the transaction of any business other than the motion on which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such meeting adjourn the same from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully (but for lack of required quorum) have been transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or on any question of adjournment shall be taken at the meeting without adjournment.
13. The Trustee and its lawyers and financial advisers and any director, officer or employee of a corporation being a trustee of these presents and any director or officer of each of the Issuer or the Guarantor and its lawyers and its accountants and financial advisers and any other person authorised so to do by the Trustee may attend and speak at any meeting. Save as aforesaid, but without prejudice to the proviso to the definition of "outstanding" in Clause 1, no person shall be entitled to attend and speak nor shall any person be entitled to vote at any meeting of the Holders or join with others in requesting the convening of such a meeting or to exercise the rights conferred on the Holders by Conditions 12 and 13 unless he either produces the Bearer Security or Bearer Securities of which he is the holder or a voting certificate or is a proxy or a representative or is the holder of a Registered Security or Registered Securities. No person shall be entitled to vote at any meeting in respect of Securities held by, for the benefit of, or on behalf of, the Issuer, the Guarantor any other Subsidiary of the Guarantor, any holding company of the Guarantor or any other Subsidiary of any such holding company. Nothing herein shall prevent any of the proxies named in any block voting instruction or form of proxy or any representative from being a director, officer or representative of or otherwise connected with the Issuer or the Guarantor.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and produces a Bearer Security or voting certificate or is a holder of Registered Securities or is a proxy or representative shall have one vote; and
(B) on a poll every person who is so present shall have one vote in respect of each (pound)1 or such other amount as the Trustee may in its absolute discretion stipulate (or, in the case of meetings of holders of Securities denominated in another currency, such amount in such other currency as the Trustee in its absolute discretion may stipulate) in principal amount of the Securities so produced or represented by the voting certificate so produced or in respect of which he is a proxy or representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any block voting instruction or form of proxy any person entitled to more than one vote need not use all his votes or cast all the votes to which he is entitled in the same way.
15. The proxies named in any block voting instruction or form of proxy and representatives need not be Holders.
16. Each block voting instruction together (if so requested by the Trustee) with proof satisfactory to the Trustee of its due execution on behalf of the relevant Paying Agent and each form of proxy shall be deposited by the relevant Paying Agent or (as the case may be) by the Registrar at such place as the Trustee shall approve not less than 24
hours before the time appointed for holding the meeting or adjourned meeting at which the proxies named in the block voting instruction or form of proxy propose to vote and in default the block voting instruction or form of proxy shall not be treated as valid unless the Chairman of the meeting decides otherwise before such meeting or adjourned meeting proceeds to business. A notarially certified copy of each block voting instruction and form of proxy shall be deposited with the Trustee before the commencement of the meeting or adjourned meeting but the Trustee shall not thereby be obliged to investigate or be concerned with the validity of or the authority of the proxies named in any such block voting instruction or form of proxy.
17. Any vote given in accordance with the terms of a block voting instruction or form of proxy shall be valid notwithstanding the previous revocation or amendment of the block voting instruction or form of proxy or of any of the Holders' instructions pursuant to which it was executed provided that no intimation in writing of such revocation or amendment shall have been received from the relevant Paying Agent or in the case of a Registered Security from the holder thereof by the Issuer at its registered office (or such other place as may have been required or approved by the Trustee for the purpose) by the time being 24 hours and 48 hours respectively before the time appointed for holding the meeting or adjourned meeting at which the block voting instruction or form of proxy is to be used.
18. A meeting of the Holders shall in addition to the powers hereinbefore given have the following powers exercisable only by Extraordinary Resolution (subject to the provisions relating to quorum contained in paragraphs 5 and 6 above) namely:
(A) Power to sanction any compromise or arrangement proposed to be made between the Issuer, the Guarantor, the Trustee, any Appointee and the Holders and Couponholders or any of them.
(B) Power to sanction any abrogation, modification, compromise or arrangement in respect of the rights of the Trustee, any Appointee, the Holders, the Couponholders. the Issuer or the Guarantor against any other or others of them or against any of their property whether such rights shall arise under these presents or otherwise.
(C) Power to assent to any modification of the provisions of these presents which shall be proposed by the Issuer, the Guarantor, the Trustee or any Holder.
(D) Power to give any authority or sanction which under the provisions of these presents is required to be given by Extraordinary Resolution.
(E) Power to appoint any persons (whether Holders or not) as a committee or committees to represent the interests of the Holders and to confer upon such committee or committees any powers or discretions which the Holders could themselves exercise by Extraordinary Resolution.
(F) Power to approve of a person to be appointed a trustee and power to remove any trustee or trustees for the time being of these presents.
(G) Power to discharge or exonerate the Trustee and/or any Appointee from all liability in respect of any act or omission for which the Trustee and/or such Appointee may have become responsible under these presents.
(H) Power to authorise the Trustee and/or any Appointee to concur in and execute and do all such deeds, instruments, acts and things as may be necessary to carry out and give effect to any Extraordinary Resolution.
(I) Power to sanction any scheme or proposal for the exchange or sale of the Securities for or the conversion of the Securities into or the cancellation of the Securities in consideration of shares, stock, bonds, notes, debentures, debenture stock and/or other obligations and/or securities of the Issuer or any other company formed or to be formed, or for or into or in consideration of cash, or partly for or into or in consideration of such shares, stock, bonds, notes, debentures, debenture stock and/or other obligations and/or securities as aforesaid and partly for or into or in consideration of cash.
19. Any resolution passed at a meeting of the Holders duly convened and held in accordance with these presents shall be binding upon all the Holders whether present or not present at such meeting and whether or not voting and upon all Couponholders and each of them shall be bound to give effect thereto accordingly and the passing of any such resolution shall be conclusive evidence that the circumstances justify the passing thereof. Notice of the result of the voting on any resolution duly considered by the Holders shall be published in accordance with Condition 16 by the Issuer within 14 days of such result being known PROVIDED THAT the non-publication of such notice shall not invalidate such result.
20. The expression "Extraordinary Resolution" when used in these presents means a resolution passed at a meeting of the Holders duly convened and held in accordance with these presents by a majority consisting of not less than three-fourths of the persons voting thereat upon a show of hands or if a poll is duly demanded by a majority consisting of not less than three-fourths of the votes cast on such poll.
21. Minutes of all resolutions and proceedings at every meeting of the Holders shall be made and entered in books to be from time to time provided for that purpose by the Issuer and any such Minutes as aforesaid if purporting to be signed by the Chairman of the meeting at which such resolutions were passed or proceedings transacted shall be conclusive evidence of the matters therein contained and until the contrary is proved every such meeting in respect of the proceedings of which Minutes have been made shall be deemed to have been duly held and convened and all resolutions passed or proceedings transacted thereat to have been duly passed or transacted.
22. (A) If and whenever the Issuer shall have issued and have outstanding Securities of more than one series the foregoing provisions of this Schedule shall have effect subject to the following modifications:
(i) a resolution which in the opinion of the Trustee affects the Securities of only one series shall be deemed to have been duly passed if passed at a separate meeting of the holders of the Securities of that series;
(ii) a resolution which in the opinion of the Trustee affects the Securities of more than one series but does not give rise to a conflict of interest between the holders of Securities of any of the series so affected shall be deemed to have been duly passed if passed at a single meeting of the holders of the Securities of all the series so affected;
(iii) a resolution which in the opinion of the Trustee affects the Securities of more than one series and gives or may give rise to a conflict of interest between the holders of the Securities of one series or group of series so affected and the holders of the Securities of another series or group of series so affected shall be deemed to have been duly passed only if passed at separate meetings of the holders of the Securities of each series or group of series so affected; and
(iv) to all such meetings all the preceding provisions of this Schedule shall mutatis mutandis apply as though references therein to Securities, Holders and holders were references to the Securities of the series or group of series in question or to the holders of such Securities, as the case may be.
(B) If the Issuer shall have issued and have outstanding Securities which are not denominated in pounds sterling, in the case of any meeting of holders of Securities of more than one currency the principal amount of such Securities shall (i) for the purposes of paragraph 2 above be the equivalent in pounds sterling at the spot rate of a bank nominated by the Trustee for the conversion of the relevant currency or currencies into pounds sterling on the seventh dealing day prior to the day on which the requisition in writing is received by the Issuer and (ii) for the purposes of paragraphs 5, 6 and 14 above (whether in respect of the meeting or any adjourned such meeting or any poll resulting therefrom) be the equivalent at such spot rate on the seventh dealing day prior to the day of such meeting. In such circumstances, on any poll each person present shall have one vote for each(pound)1 (or such other pound sterling amount as the Trustee may in its absolute discretion stipulate) in principal amount of the Securities (converted as above) which he holds or represents.
23. Subject to all other provisions of these presents the Trustee may without the consent of the Issuer, the Guarantor, the Holders or the Couponholders prescribe such further regulations regarding the requisitioning and/or the holding of meetings of Holders and attendance and voting thereat as the Trustee may in its sole discretion think fit.
THE FIFTH SCHEDULE
PROVISIONS AS TO REGISTERED SECURITIES IN UNCERTIFICATED FORM
(1) The Issuer may, but shall not be obliged to, make arrangements for Registered Securities comprised in any series of Securities to be Participating Securities.
(2) For so long as the Registered Securities comprised in or, as the case may be, comprising any series of Securities continue to be Participating Securities, no provision of those presents (including, but not limited to, any Condition of such Participating Securities) shall apply to such Participating Securities or have effect in respect of the same, to the extent that it is in any respect inconsistent with:
(i) the holding of title to such Participating Securities in uncertificated form;
(ii) the transfer of title to such Participating Securities by means of a relevant system or
(iii) the Regulations.
(3) Without prejudice to the generality of paragraph (2) of this Schedule and notwithstanding any provision of these presents (including, but not limited to, any Condition of any Participating Securities):
(i) the Register in respect of Participating Securities shall be maintained at all times in the United Kingdom and shall specify the amount of Participating Securities held by each holder which is in certificated and uncertificated form respectively;
(ii) subject to sub-paragraph (vi) below, an entry on to the Register which records a holder as holding Participating Securities in uncertificated form shall be evidence of such title to such Participating Securities to the same extent as would be evidenced if the entry on the Register related to Participating Subsidiaries held in certified form;
(iii) entries on the Register in respect of Participating Securities held in uncertificated form may not be rectified except with the consent of the Operator or by order of a court in the United Kingdom and, where an entry on the Register is in respect of such Participating Securities is so rectified or otherwise changed (except in response to an Operator-instruction), the Operator and the holders of the relevant Participating Subsidiaries shall be immediately notified of the changes to the entry;
(iv) notwithstanding Section 358 of the Companies Act 1985, any other enactment or any provision of these presents, the Register in relation to Participating Securities shall not be closed by the Issuer without the consent of the Operator;
(v) transfers of title to Participating Securities in uncertificated form shall be effected by means of the relevant system concerned in the manner provided for, and subject as provided in, the Regulations and accordingly (and in particular) where the Conditions of the Participating Securities require or contemplate the effecting of a transfer of an instrument in writing and the production of Participating Securities in certified form such provisions shall not apply in respect of such Participating Securities in uncertificated form;
(vi) transfers of title to uncertificated Participating Securities shall be registered in accordance with, and subject as provided in, the Regulations and any purported registration of title in respect of Participating Securities in uncertificated form otherwise than in accordance with the Regulations shall have no effect;
(vii) Participating Securities shall not be changed from uncertificated form to certificated form except in accordance with and subject as provided in the Regulations;
(viii) Participating Securities shall not be changed from certificated form to if uncertificated form except in accordance with and subject as provided in the Regulations;
(ix) Participating Securities may be issued in uncertificated form to a person who is a system-member and, upon the issue in uncertificated form of new Participating Securities, the Issuer or a sponsoring system participant on its behalf shall by issuer-instruction notify the Operator to whom the uncertificated Participating Securities have been issued and the number of units of Participating Securities issued to each such person. For the purposes of calculating the number of units of new uncertificated Participating Securities to which a system-member is entitled, the Issuer may treat a system-member's holdings of certificated Participating Securities and uncertificated Participating Securities as if they were separate holdings;
(x) the provisions of the Fourth Schedule with respect to meetings of Holders shall have effect subject to the provisions of regulation 34 of the Regulations;
(xi) none of the provisions of these presents (including, but not limited to, any Condition of any Participating Securities relating to form, denomination, title and transfer of such Participating Securities) shall apply so as to require the Issuer or the Registrar to issue a certificate for such Participating Securities to any person hold, such Participating Securities in uncertificated form;
(xii) notwithstanding sub-paragraph (xi) above and, for the avoidance of doubt, the Conditions of any Participating Securities shall remain so applicable (and accordingly the Issuer shall continue to comply with the same in accordance with the provisions of these presents) notwithstanding that
they are not endorsed on, or on any certificate for, any Participating Securities which are in uncertificated form;
(xiii) each holder of Participating Securities in uncertificated form shall be sent by the Issuer within seven days of becoming such a holder, a copy of the Conditions thereof and any other document containing equivalent information to that normally endorsed on any certificates (but so that joint holders of such Participating Securities shall be entitled to receive one copy only of the Conditions or such other document in respect of the Participating Securities held jointly by them, which copy shall be sent to that one of the joint holders whose name stands first in the Register in respect of that holding);
(xiv) notwithstanding any Condition of any Participating Securities or any other provision of these presents relating to payment in respect of any Participating Securities, where the Issuer is authorised to do so by or on behalf of the holder or all joint holders of such Participating Securities in uncertificated form in such manner as the Issuer shall from time to time consider sufficient, the Issuer may pay or procure the payment of the principal and premium (if any) for the time being owing on, the interest payable in respect of and/or any other moneys payable by the Issuer to such holder or joint holders pursuant to these presents in respect of such Participating Securities by means of the relevant system concerned (subject always to the facilities and requirements of that relevant system). Such payment may include the sending by the Issuer or by a sponsoring system-participant on its behalf of an issuer-instruction to the Operator of the relevant system concerned to credit the account of the holder or joint holders concerned or of such person as the holder or a joint holders may in writing direct, in either case being an account designated by the Operator of such relevant system as the cash memorandum account of the holder or joint holders or, as the case may be, of such person. The making of such payment in accordance with the facilities and requirements of the relevant system concerned shall constitute a good discharge to the Issuer therefor. For the purposes of this sub-paragraph (xiv), evidence of title to any Participating Securities in uncertificated form in accordance with the Regulations shall be sufficient for such payments to be made;
(xv) notwithstanding any Condition of any Participating Securities or any other provision of these presents which provides for or which contemplates payment of principal and premium (if any) against presentation and surrender (or, in the case of part payment only, endorsement) of, or of certificates for, Participating Securities, if Participating Securities fail to be redeemed and are in uncertificated form on the relevant Redemption Date then, subject to sub-paragraph (xvi) below and provided that it has complied with its obligations in relation to payment of the amount due in respect of the relevant redemption pursuant to these presents and the relevant Agency Agreement the Issuer may at any time on or after the Redemption Date send or procure that a sponsoring system-participant sends on its behalf an
issuer-instruction to the Operator of the relevant system concerned requesting or requiring the cancellation or deletion of the appropriate computer-based entries in the relevant system concerned that relate to the relevant Participating Securities (being or including entries that caused or could cause the Operator to generate an Operator- instruction to the Issuer or to a sponsoring system-participant acting on its behalf to register a transfer of the relevant Participating Securities). The Issuer or a sponsoring system-participant on its behalf may obtain, by means of the relevant system concerned (or by such other means as the Issuer shall determine having regard to the facilities and requirements of the relevant system concerned), confirmation of such cancellation or deletion;
(xvi) in relation to any Participating Securities which are to be redeemed and which are (or, in the absence of this sub-paragraph (xvi), would or may be) in uncertificated form on the relevant Redemption Date, the Issuer shall be entitled to determine and/or alter the procedure for effecting the redemption of such Participating Securities in such manner as it shall, in its absolute discretion, determine, subject always to the facilities and requirements of the relevant system concerned. In particular (but without limiting the generality of the foregoing):
(a) the issuer-instruction referred to in sub-paragraph
(xv) above may be given in such form as the Issuer
may from time to time determine and may have such
effect, and/or cause the Operator to take such
action, in relation to the relevant system concerned
and the relevant Participating Securities as the
Issuer may from time to time determine (consistent
always with the facilities and requirements of the
relevant system concerned, the Regulations and the
redemption, on the relevant Redemption Date, of the
relevant Participating Securities);
(b) if the Issuer or any sponsoring system-
participant acting on its behalf is unable, for any
reason, to send or receive properly
authenticated dematerialised instructions, or if
the Issuer or any sponsoring system- participant
acting on its behalf has not received
confirmation in a form satisfactory to the Issuer
of the cancellation or deletion of the computer
based entries as contemplated by subparagraph
(xv) above or if the Issuer so determines for any
other reason, the Issuer may, so far as it is able
having regard to the facilities and requirements
of the relevant system concerned and the
Regulations, require or request the Operator of
the relevant system concerned to take the
action referred to in sub-paragraph (xv) above
(subject always as provided in sub-paragraph (a)
above) by some means other than by means of an
issuer-instruction or the Issuer may (by notice in
writing to the relevant holder or holders of the
relevant Participating Securities, which notice may
be included in the relevant notice of redemption
(if any)) require such holder or holders to convert
the relevant Participating Securities from
uncertificated to certificated form; and
(xvii) for the avoidance of doubt, any Participating Securities may be held in uncertificated form by not more than four joint holders.
(4) The Trustee shall be entitled, without the consent of the Holders, to concur in making any modifications to the provisions of these presents requested by the Issuer in order to reflect changes in the Regulations or in the law and practice relating to the holding and transfer of Participating Securities in uncertificated form.
(5) The Issuer shall concur at the request of the Trustee in making any modifications to the provisions of these presents reasonably requested by the Trustee relating to the Regulations and/or the holding and transfer of Participating Securities in uncertificated form.
(6) The due performance and/or observance by the Registrar in respect of the relevant Participating Securities of the terms of paragraph (3) of this Schedule and the Regulations shall be a good discharge of the obligations of the Issuer under such paragraph and the Regulations to the extent of such performance and/or observance.
Executed as a deed by
YORKSHIRE ELECTRICITY DISTRIBUTION PLC
Acting by:
Executed as a deed by
YORKSHIRE ELECTRICITY GROUP PLC
Acting by:
THE COMMON SEAL of ) BANKERS TRUSTEE ) COMPANY LIMITED was ) affixed to this deed in the ) presence of: ) |
Director
Assistant Secretary
EXHIBIT 10.77
YORKSHIRE POWER FINANCE LIMITED, AS ISSUER
AND
YORKSHIRE POWER GROUP LIMITED, AS GUARANTOR
AND
THE BANK OF NEW YORK, AS TRUSTEE,
PRINCIPAL PAYING AGENT, REGISTRAR AND TRANSFER AGENT
AND
BANQUE GENERALE DU LUXEMBOURG S.A.,
AS PAYING AND TRANSFER AGENT
INDENTURE
DATED AS OF FEBRUARY 1, 1998
DEBT SECURITIES
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. Definitions 1
SECTION 102. Compliance Certificates and Opinions 9
SECTION 103. Form of Documents Delivered to Trustee 10
SECTION 104. Acts of Holders 10
SECTION 105. Notices, Etc., to Trustee and Company 13
SECTION 106. Notice of Holders; Waiver 13
SECTION 107. Conflict with Trust Indenture Act 14
SECTION 108. Effect of Headings and Table of Contents 14
SECTION 109. Successors and Assigns 15
SECTION 110. Separability Clause 15
SECTION 111. Benefits of Indenture 15
SECTION 112. Governing Law 15
SECTION 113. Legal Holidays 15
ARTICLE TWO SECURITY FORMS 15
SECTION 201. Forms Generally 15
SECTION 202. Form of Trustee's Certificate of Authentication 16
SECTION 203. Form of Trustee's Certificate of Authentication
by an Authenticating Agent 16
SECTION 204. Form of Guarantee 17
ARTICLE THREE THE SECURITIES 18
SECTION 301. Amounted Unlimited; Issuable in Series 18
SECTION 302. Denominations 20
SECTION 303. Execution, Authentication, Delivery and Dating 20
SECTION 304. Transfer Agent and Paying Agent 21
SECTION 305. Temporary Securities 22
SECTION 306. Registration, Registration of Transfer and Exchange 23
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities 24
SECTION 308. Payment of Interest; Interest Rights Reserved 25
SECTION 309. Persons Deemed Owners 27
SECTION 310. Cancellation 27
SECTION 311. Computation of Interest 27
SECTION 312. Global Securities 28
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ARTICLE FOUR SATISFACTION AND DISCHARGE 28
SECTION 401. Satisfaction and Discharge of Indenture 28
SECTION 402. Application of Trust Money 30
SECTION 403. Satisfaction, Discharge and Defeasance of Securities
of any Series 30
ARTICLE FIVE REMEDIES 32
SECTION 501. Events of Default 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee 34
SECTION 504. Trustee May File Proofs of Claim 35
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities 35
SECTION 506. Application of Money Collected 35
SECTION 507. Limitation on Suits 36
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest 37
SECTION 509. Restoration of Rights and Remedies 37
SECTION 510. Rights and Remedies Cumulative 37
SECTION 511. Delay or Omission Not Waiver 38
SECTION 512. Control by Holders 38
SECTION 513. Waiver of Past Defaults 38
SECTION 514. Undertaking for Costs 38
ARTICLE SIX THE TRUSTEE 39
SECTION 601. Certain Duties and Responsibilities 39
SECTION 602. Notice of Defaults 40
SECTION 603. Certain Rights of Trustee 40
SECTION 604. Not Responsible for Recitals or Issuance of
Securities 41
SECTION 605. May Hold Securities 41
SECTION 606. Money Held in Trust 42
SECTION 607. Compensation and Reimbursement 42
SECTION 608. Disqualification; Conflicting Interests 42
SECTION 609. Corporate Trustee Required; Eligibility 42
SECTION 610. Resignation and Removal; Appointment of Successor
Trustee 43
SECTION 611. Acceptance of Appointment by Successor 44
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business 45
SECTION 613. Preferential Collecting of Claims Against Company 45
SECTION 614. Authenticating Agents 49
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ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 50
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders 50
SECTION 702. Preservation of Information; Communications to
Holders 51
SECTION 703. Reports by Trustee 52
SECTION 704. Reports 53
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE 54
SECTION 801. Company or Guarantor May Consolidate Etc., Only on
Certain Terms 54
SECTION 802. Successor Corporation to be Substituted 55
ARTICLE NINE SUPPLEMENTAL INDENTURES 55
SECTION 901. Supplemental Indentures without Consent of Holders 55
SECTION 902. Supplemental Indentures with Consent of Holders 56
SECTION 903. Execution of Supplemental Indentures 57
SECTION 904. Effect of Supplemental Indentures 57
SECTION 905. Conformity with Trust Indenture Act 57
SECTION 906. Reference in Securities to Supplemental Indentures 58
ARTICLE TEN COVENANTS 58
SECTION 1001. Payment of Principal, Premium, if any, and Interest 58
SECTION 1002. Maintenance of Office or Agency 58
SECTION 1003. Money for Securities Payments to Be Held in Trust 59
SECTION 1004. Limitation on Liens 60
SECTION 1005. Limitation on Sale and Lease-Back Transactions 63
SECTION 1006. Statement by Officers as to Default 63
SECTION 1007. Waiver of Certain Covenants 63
SECTION 1008. Further Assurances 64
SECTION 1009. Payment of Additional Amounts 64
SECTION 1010. Copies Available to Holders 65
ARTICLE ELEVEN REDEMPTION OF SECURITIES 66
SECTION 1101. Applicability of Article 66
SECTION 1102. Election to Redeem; Notice to Trustee 66
SECTION 1103. Selection by Trustee of Securities to
Be Redeemed 66
SECTION 1104. Notice of Redemption 67
SECTION 1105. Deposit of Redemption Price 68
SECTION 1106. Securities Payable on Redemption Date 68
SECTION 1107. Securities Redeemed in Part 68
SECTION 1108. Optional Redemption in the Event of Change
in Taxing Jurisdiction Tax Treatment 69
iii
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ARTICLE TWELVE SINKING FUNDS 69
SECTION 1201. Applicability of Article 69
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities 70
SECTION 1203. Redemption of Securities for Sinking Fund 70
ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES 71
SECTION 1301. Purposes of Meetings 71
SECTION 1302. Place of Meetings 71
SECTION 1303. Voting at Meetings 72
SECTION 1304. Voting Rights, Conduct and Adjournment 72
SECTION 1305. Revocation of Consent by Holders 73
ARTICLE FOURTEEN GUARANTEE OF SECURITIES 73
SECTION 1401. Applicability of Article; Unconditional Guarantee 73
SECTION 1402. Waiver of Notice and Demand 74
SECTION 1403. Guarantor Obligations Not Affected 74
SECTION 1404. Execution of Guarantee 75
SECTION 1405. Subrogation 75
SECTION 1406. Independent Obligations 76
ARTICLE FIFTEEN MISCELLANEOUS 76
SECTION 1501. Consent to Jurisdiction; Appointment of Agent to
Accept Service of Process 76
SECTION 1502. Counterparts 78
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NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF THE INDENTURE.
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of February 1, 1998
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
(S)310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
(S)311(a) 613(a)
(b) 613(b)
(b)(2) 703(a)(2)
703(b)
(S)312(a) 701
702(a)
(b) 702(b)
(c) 702(c)
(S)313(a) 703(a)
(b)(1) Not Applicable
(b)(2) 703(b)
(c) 703(a), 703(b)
(d) 703(c)
(S)314(a) 704
(a)(4) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
(S)315(a) 601(a)
(b) 602
703(a)(7)
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)(1)
(d)(2) 601(c)(1)
(d)(3) 601(c)(3)
(e) 514
(S)316(a)(1)(A) 502
512
(a) 513
(a)(2) Not Applicable
v
|
(b) 508
(c) 105
(S)317(a)(1) 503
(a)(2) 504
(b) 100
(S)318(a) 107
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
INDENTURE, dated as of February 1, 1998, among YORKSHIRE POWER FINANCE LIMITED, a limited liability company organized under the laws of the Cayman Islands, as issuer (the "Company"), having its registered office at P. O. Box 309, George Town, Grand Cayman, Cayman Islands, British West Indies, YORKSHIRE POWER GROUP LIMITED, a private limited company incorporated under the laws of England and Wales, having its registered office at Wetherby Road, Scarcroft, Leeds, England, as guarantor (the "Guarantor"), THE BANK OF NEW YORK, as trustee, principal paying agent, registrar and transfer agent (the "Trustee"), and BANQUE GENERALE DU LUXEMBOURG S.A., as paying and transfer agent.
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of certain of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities") to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture, all indentures supplemental hereto and any document or instrument delivered pursuant to the provisions hereof, except as otherwise expressly provided or unless the context otherwise requires:
(1) The terms defined in this Article have the respective meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meaning assigned to them in accordance with generally accepted accounting principles in the United States and, except as otherwise herein expressly provided, the term "generally accepted accounting
principles", with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section 1009.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling", and "controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, in respect of a Sale and Lease-Back Transaction, as at the time of determination, the present value (discounted at the rate borne by the applicable series of Securities) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Lease-Back Transaction (including any period for which such lease has been extended).
"Authenticating Agent" means any Person authorized to authenticate and deliver Securities on behalf of the Trustee pursuant to Section 614.
"Bearer Security" means any Security that is payable to bearer.
"Board of Directors" means a copy of a resolution certified by a Director of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
"Book-Entry Depositary" means, with respect to the Securities
of any series issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Book-Entry Depositary (or a nominee
thereof) by the Company pursuant to Section 301, and, if so provided pursuant to
Section 301 with respect to the Securities of a series, any successor to such
Person. If at any time there is more than one Person, "Book-Entry Depositary"
shall mean, with respect to any series of Securities, the qualifying entity
which has been appointed with respect to the Securities of that series.
"Book-Entry Interests", means certificateless depositary interests to be issued by the Book-Entry Depositary to DTC representing in the aggregate a 100% beneficial interest in a Global Bearer Security.
"Business Day", when used with respect to the Place of Payment of the Securities of any series, means each day which is not a Saturday, a Sunday or a day on which banking institutions in any Place of Payment for the Securities of that series are authorized or obligated by law to remain closed.
"Commission" means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor company shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor company.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by any Director and by any other Director or the Treasurer, Secretary, or Assistant Treasurer or Assistant Secretary or any other officer so authorized and delivered to the Trustee.
"Consolidated Net Tangible Assets" shall mean the total of all assets (including revaluations thereof as a result of commercial appraisals, price level restatement or otherwise) appearing on a consolidated balance sheet of the Guarantor, net of applicable reserves and deductions, but excluding goodwill, trade names, trademarks, patents, unamortized debt discount and all other like intangible assets (which term shall not be construed to include such revaluations), less the aggregate of the consolidated current liabilities of the Guarantor appearing on such balance sheet.
"Corporate Trust Office" means the principal office of the Trustee in The City of New York, at which at any particular time its corporate trust business shall be administered, which at the date hereof is 101 Barclay Street, New York, New York, 10286.
"corporation" includes corporations, associations, companies and business trusts.
"Debt" has the meaning specified in Section 1004.
"default" for purposes of Section 601 of this Indenture is defined to mean an "Event of Default" as specified in Section 501 hereof, and for purposes of Section 310(b) of the Trust Indenture Act, "default" shall mean an "Event of Default" as specified in Section 501 hereof but exclusive of any period of grace or requirement of notice.
"Defaulted Interest" has the meaning specified in Section 308.
"Deposit Agreement" means any deposit agreement among the Company, a Book-Entry Depositary and the holders and beneficial owners from time to time of interests in the Book-Entry Interests.
"Director" means any member of the Board of Directors at the time of determination.
"discharged" means, with respect to the Securities of any series, the discharge of the entire indebtedness represented by, and obligations of the Company under, the Securities of such series and the satisfaction of all the obligations of the Company under this Indenture relating to the Securities of such series, except (A) the rights of Holders of the Securities of such series to receive, from the trust fund described in Section 403 hereof, payment of the principal of, premium, if any, and interest, if any, of the Securities of such series when such payments are due, (B) the Company's obligations with respect to the Securities of such series with respect to registration, transfer, exchange and maintenance of a Place of Payment and (C) the rights, powers, trusts, duties, protections and immunities of the Trustee under this Indenture.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debt in the United States.
"DTC" means The Depository Trust Company (or a nominee thereof) or its successors.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934, as amended.
"Global Bearer Security" means a Bearer Security, evidencing all or part of a series of Securities, issued to the Book-Entry Depository for such series.
"Global Registered Security" means a Registered Security, evidencing all or part of a series of Securities, issued to the Book-Entry Depository for such series.
"Global Security" means a Global Registered Security or a Global Bearer Security.
"Gross-Up Taxes" has the meaning specified in Section 1009.
"Guarantee" means the guarantee set forth in Article Fourteen by the Guarantor of any Security of any series authenticated and delivered pursuant to this Indenture either (i) if specified, as contemplated by Section 301, to be applicable to Securities of such series and not endorsed on such Securities pursuant to Article Fourteen hereof, or (ii) in all other cases, endorsed on such Securities.
"Guarantor" means the Person named as the "Guarantor" in the first paragraph of this instrument, until a successor company shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor company.
"Holder" means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Global Bearer Security, the Book-Entry Depositary therefore.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by a Board Resolution and an Officers' Certificate issued pursuant thereto or by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301.
"Indirect Participant" means a Person that holds an interest in the Book-Entry Interests through a Participant.
"Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.
"Interest Payment Date", when used with respect to any Security means the Stated Maturity of an installment of interest on such Security.
"Letter of Representations" means, with respect to the Securities of any series, the letter of representations from the Company and the Trustee to DTC with respect to the Securities of that series that are represented by Global Registered Securities issued to DTC or the letter of representations from the Company and the Book-Entry Depositary to DTC with respect to the Securities of that series that are represented by Global Bearer Securities issued to such Book-Entry Depositary.
"Lien" means any mortgage, lien, pledge, security interest or other encumbrance; provided, however, that the term "Lien" shall not mean any easements, rights-of-way, restrictions and other similar encumbrances and encumbrances consisting of zoning restrictions, leases, subleases, licenses, sublicenses, restrictions on the use of property or defects in title thereto.
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by any Director or the Treasurer, Secretary, any Assistant Treasurer or Assistant Secretary of the Company or any other officer of the Company so authorized and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who, unless otherwise required by the Trust Indenture Act, may be an employee of, or regular counsel for, the Company, or may be other counsel reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities of any series, means, as of the date of determination, all Securities of such series theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption money or U.S. Government Obligations in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefore satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to the terms hereof or thereof or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to Section 306 of this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, and (b) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned as described in clause (b) above which have been pledged in good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
"Participant" means a Person that has an account with DTC.
"Paying Agent" means Banque Generale du Luxembourg S.A. and any other Person authorized by the Company to pay the principal of, premium, if any, or interest on any Securities on behalf of the Company hereunder, including, without limitation, the Principal Paying Agent.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of, premium, if any, and interest, if any, on the Securities of that series are payable as specified in or as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purpose of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen security.
"Principal Paying Agent" means The Bank of New York until a successor Principal Paying Agent shall have become such pursuant to the applicable provisions of this Indenture and, thereafter, "Principal Paying Agent" shall mean such successor Principal Paying Agent.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture, exclusive of accrued and unpaid interest.
"Registered Security" means any Security that is payable to a registered owner or registered assigns thereof as registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
"Relevant Date" for any payment made with respect to the Securities of any series means whichever is the later of (i) the date on which the relevant payment first becomes due and (ii) if the full amount payable has not been received in The City of New York by the Book-Entry Depositary or the Trustee on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders in accordance with this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any officer within the Corporate Trust Office including any vice president, managing director, the secretary, assistant vice president, assistant secretary, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Sale and Lease-Back Transaction" has the meaning specified in
Section 1005.
"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any securities authenticated and delivered under this Indenture.
"Securities Act" means the United States Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 306.
"Significant Subsidiary" means, at any particular time, any Subsidiary whose gross assets or gross revenues (having regard to the Guarantor's direct and/or indirect beneficial interest in the shares, or the like, of that subsidiary) represent at least 25% of the consolidated gross assets or consolidated gross revenues, as the case may be, of the Guarantor.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Guarantor or by one or more other Subsidiaries, or by the Guarantor and one or more other Subsidiaries.
"Taxing Jurisdiction" means (i) any supranational federation to which the United Kingdom belongs or (ii) the jurisdiction (or any political subdivision or taxing authority thereof) in which the Company or the Guarantor, is incorporated or in which the Company or the Guarantor is managed and controlled or has a place of business.
"Transfer Agent" means any Person authorized by the Company to effectuate the exchange or transfer of any Security on behalf of the Company hereunder, including, initially pursuant to Section 304, The Bank of New York and Banque Generale du Luxembourg S.A.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905.
"United Kingdom" means the United Kingdom of Great Britain and Northern Ireland, its territories, its possessions and other areas subject to its jurisdiction.
"United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
"U.S. Government Obligations" means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment of which is unconditionally guaranteed by the United States, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of a holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" of any corporation means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions
Except as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provide for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer or Director may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer or Director knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers or Director or Directors stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in Person or by agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, unless otherwise established in or pursuant to a Board Resolution or set forth or determined in an Officers' Certificate, or established in one or more indentures supplemental hereto, pursuant to Section 301, a Holder including a Book-Entry Depositary that is a Holder of a Global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Book-Entry Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such Book-Entry Depositary's standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such instrument, writing or proxy may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument, writing or proxy acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument, writing or proxy, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefore or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such actions is made upon such Security.
(e) The principal or face amount and serial numbers of Bearer Securities of any series held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed by the Book-Entry Depositary for such Bearer Securities.
(f) If the Company shall solicit from the Holders of Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by Board Resolution, fix in advance a record date for purposes of determining the
identity of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company's discretion. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be sought or given before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Securities of such series Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Securities of such series Outstanding shall be computed as of such record date.
With regard to any record date set pursuant to this subsection, the Holders of Outstanding Securities of the relevant series on such record date (or their duly appointed agents), and only such Persons, shall be entitled to take relevant action, whether or not such Holders remain Holders after such record date. With regard to any action that may be taken hereunder only by Holders of a requisite principal amount of Outstanding Securities of any series (or their duly appointed agents) and for which a record date is set pursuant to this subsection, the Company may, at its option, set an expiration date after which no such action purported to be taken by any Holder shall be effective hereunder unless taken on or prior to such expiration date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this subsection, the Company may, on one or more occasions at its option, extend such expiration date to any later date. Nothing in this subsection shall prevent any Holder (or any duly appointed agent thereof) from taking, at any time, any action contrary to or different from, any action previously taken, or purported to have been taken, hereunder by such Holder, in which event the Company may set a record date in respect thereof pursuant to this subsection. Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not set a record date for, and the provisions of this paragraph shall not apply with respect to, any action to be taken by Holders pursuant to Section 501, 502, 512.
Upon receipt by the Trustee of written notice of any default described in Section 501, any declaration of acceleration, or any rescission and annulment of any such declaration, pursuant to Section 502 or of any direction in accordance with Section 512, a record date shall automatically and without any other action by any Person be set for the purpose of determining the Holders of Outstanding Securities of the series entitled to join in such notice, declaration, or rescission and annulment, or direction, as the case may be, which record date shall be the close of business on the day the Trustee receives such notice, declaration, rescission and annulment of direction, as the case may be. The Holders of Outstanding Securities of such series on such record date (or their duly appointed agent), and only such Persons, shall be entitled to join in such notice, declaration, rescission and annulment, or direction, as the case may be, whether or not such Holders remain Holders after such record date; provided that, unless such notice, declaration, rescission and annulment, or direction, as the case may be, shall have become effective by virtue of Holders of the requisite principal amount of Outstanding Securities of such series on such record date (or their duly appointed agents) having joined thereon on or
prior to the 90th day after such record date, such notice of default, declaration, rescission and annulment, or direction, as the case may be, given or made by the Holders, as the case may be, shall automatically and without any action by any Person be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder (or a duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a notice of default, a declaration of acceleration, a rescission
and annulment of a declaration of acceleration or a direction in accordance with
Section 512, contrary to or different from, or, after the expiration of such
period, identical to, a previously given notice, declaration, rescission and
annulment, or direction, as the case may be, that has been canceled pursuant to
the proviso to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph.
SECTION 105. Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its registered office, with a copy addressed to the Guarantor at the address of its registered office, each as specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event. (i) in the case of a Holder of Registered Securities, at his address as it appears in the Security Register, and (ii) in the case of a Holder of Global Bearer Securities, at the address provided in or pursuant to the relevant Deposit Agreement of the relevant Book-Entry Depositary, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
If Securities of any series are listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange so require, notice to Holders of such Securities shall be published in a leading newspaper having general circulation in Luxembourg.
If, by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to give such notice by mail, then such notification as shall be made at the direction of the Company in a manner reasonably calculated, to the extent practicable under the circumstances, to provide prompt notice shall constitute a sufficient notification for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event and the rules of any securities exchange on which such Bearer Securities are listed so require, such notice shall be sufficiently given to Holders of such Bearer Securities if published in such newspaper or newspapers as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice by publication shall be deemed to have been given on the date of the first such publication. In addition, notice to the Holder of any Global Bearer Security shall be given by mail in the manner provided above.
If by reason of any cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver or Act required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies of conflicts with any provision of the Trust Indenture Act or another provision which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, the provision or requirement of the Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, such provision of the Trust Indenture Act shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns
All covenants and agreements in this Indenture by the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause
In case any provision in this Indenture, in the Securities or in any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture
Nothing in this Indenture, in the Securities or in any Guarantee, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law
This Indenture, the Securities and any Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payments of principal, premium, if any, or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally
The Securities of each series shall be in substantially the form appended to the supplemental indenture establishing such series, or in such
other form as shall be established by or pursuant to a Board Resolution (or Officers' Certificate delivered pursuant thereto) or in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, a Board Resolution or one or more indentures supplemental hereto, and may have such letters, number of other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Director or Directors executing such Securities, as evidenced by the Director's or Directors' execution of the Securities. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of any appropriate record of such action shall be certified by an authorized Director or officer of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the form set forth in this Article or in a Board Resolution (or Officers' Certificate delivered pursuant thereto) or an indenture supplemental hereto.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Director or Directors executing such Securities, as evidenced by the Director's or Directors' execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated: __________________________________
as Trustee
By: ____________________________
Authorized Signatory
SECTION 203. Form of Trustee's Certificate of Authentication by an
|
Authenticating Agent
If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee's Certificate of Authentication by such Authenticating Agent to be borne by the Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein and referred to in the within-mentioned Indenture.
Dated: __________________________________ as Trustee
By: [NAME OF AUTHENTICATING AGENT]
Authenticating Agent
By: ______________________________
Authorized Signatory
SECTION 204. Form of Guarantee
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private limited company duly incorporated and existing under the laws of England and Wales (the "Guarantor", which term includes any successor Person under the Indenture referred to in the Security on which this notation is endorsed), hereby fully and unconditionally guarantees to the Holder of the accompanying Security issued by Yorkshire Power Finance Limited (the "Company"), pursuant to the terms of the Guarantee contained in Article Fourteen of the Indenture, the due and punctual payment of the principal of, premium, if any, and interest, if any, on this Security (and any Additional Amounts payable in respect thereof), when and as the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of this Security and the Indenture. In case of the failure of the Company punctually to pay any such principal, premium, if any, or interest, if any, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable as if such payment were made by the Company.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers.
YORKSHIRE POWER GROUP LIMITED
By: ____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth or determined in the manner provided in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, the terms of such series, which may
include the following:
(1) title of the Securities of the series (which shall distinguish the Securities series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer or, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 305, 306, 307 or 906, and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other than the bearer (in the case of a Bearer Security) or the Person in whose name the Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest (in the case of a Registered Security);
(4) the date or dates on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date;
(6) the place or places, if any, in addition to or in the place of the Corporate Trust Office, where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable and (in the case of the Registered Securities) where such Securities may be registered or transferred;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) if other than such coin or currency of the United States as at the time of payment is legal tender for payment of public or private debts, the coin or currency, including composite currencies such as the European Currency Unit, in which payment of the principal of, premium, if any, and interest, if any, on the Securities of the series shall be payable;
(12) if the principal of, premium, if any, or interest, if any, on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of, premium, if any, or interest, if any, on the Securities of the series may be determined with reference to an index based on a coin or currency other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(14) any provisions permitted by this Indenture relating to Events of Default or covenants of the Company or the Guarantor with respect to such series of Securities;
(15) if the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities, (i) whether beneficial owners of interests in any such Global Security or Securities may exchange such interests for definitive Registered Securities of such series of like tenor and of authorized form and denomination and the circumstances under which any such changes may occur, if other than in the manner provided in Section 306, and (ii) the Book-Entry Depositary for such Global Security or Securities;
(16) if the Company ever wishes to issue definitive Bearer Securities then all provisions relating to or governing such Bearer Securities will be set forth in an indenture supplemental hereto;
(17) if Article Fourteen and the other provisions of this Indenture relating to the Guarantee of the Securities are applicable to such series; and
(18) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and set forth in the Officers' Certificate referred to above or in any indenture supplemental hereto referred to above.
If any of the terms of the Securities of a series, including the form of Security of such series, are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary or other authorized officer or Director, and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such series of Securities.
SECTION 302. Denominations
The Securities of each series shall be issuable in bearer form or in registered form without coupons, except as otherwise expressly provided in a supplemental indenture hereto, in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by any Director, the Secretary or any other officer of the Company so authorized and need not be attested. Definitive Registered Securities of any series may have the Company's seal reproduced thereon which need not be attested. The Securities of any series shall be executed by such additional Director or officer, if any, as shall be specified pursuant to Section 301. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any individual who was at any time the proper Director or officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of authentication of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general principles of equity.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee or an Authenticating Agent by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. Transfer Agent and Paying Agent
For so long as the Securities are listed on the Luxembourg Stock Exchange and such stock exchange shall so require, the Company shall maintain a Paying Agent and Transfer Agent in Luxembourg.
The Company shall enter into an appropriate agency agreement with any Registrar, Transfer Agent or Paying Agent not a party to this Indenture, which shall implement the provisions of this Indenture that relate to such Person. The Company shall notify the Trustee of the name and address of any such Person. If the Company fails to maintain a Registrar or Paying Agent, the Trust shall act as such and shall be entitled to appropriate compensation therefore pursuant to Section 607. The Company initially appoints the Trustee as Registrar, Transfer Agent and Principal Paying Agent in The City of New York and Banque Generale du Luxembourg S.A. as Paying Agent and Transfer Agent in Luxembourg in connection with the Securities.
Banque Generale du Luxembourg S.A. shall be responsible for only those duties that are described in the provisions of this Indenture that relate to the Paying Agent and Transfer Agent. No implied duties or obligations shall be read into this Indenture against Banque Generale du Luxembourg S.A. It is understood and agreed that the actions taken by Banque Generale du Luxembourg S.A. as Paying Agent and Transfer Agent shall be limited to actions including definitive Registered Securities.
SECTION 305. Temporary Securities
Pending the preparation of a permanent Global Security or definitive Securities of any series, the Company may execute, and upon Company Order the Trustee or the Authenticating Agent shall authenticate, and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form, and with such appropriate insertions, omissions, substitutions and other variations as the officer or officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder except as provided in Section 306 in connection with a transfer and except that a Person receiving definitive Bearer Securities shall bear the cost of insurance, postage, transportation and the like. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series and of like tenor of authorized denominations.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security for the individual Securities represented thereby pursuant to this Section 305 or Section 306, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount of such temporary Global Security, and such principal amount shall be reduced for all purposes by the amount so exchanged and endorsed.
SECTION 306. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Company may have one or more co-registrars and the term "Security Registrar" includes any co-registrar.
Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, any Registered Security or Registered Securities of any series, other than a Global Security, may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and upon receipt of a Company Order the Trustee or the Authenticating Agent shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Bearer Securities may not be delivered by the Trustee, the Authenticating Agent or the Security Registrar in exchange for Registered Securities.
All Securities issued upon any registration of transfer or exchange of Registered Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Registered Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his Attorney duly authorized in writing.
Interests in a Global Security or Securities may be exchanged for definitive Registered Securities of the same series in whole or in part only
under the circumstances provided in this Indenture, in an Officers' Certificate (pursuant to a Board Resolution) or in an indenture supplemental hereto pursuant to which Securities of that series are issued or in the Securities of that series. In such event the Company will execute, and the Trustee or the Authenticating Agent, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series, will authenticate and deliver such definitive Registered Securities. Any such definitive Registered Securities so issued shall be registered in the name of such Person or Persons as the Book-Entry Depositary shall instruct the Trustee and the Security Registrar in writing. The Trustee or the Security Registrar shall deliver such definitive Registered Securities to the Persons in whose names such definitive Registered Securities are so registered. Upon the exchange (i) in whole of a Global Security or Securities for definitive Registered Securities in equal aggregate principal amount, such Global Security or Securities shall be delivered to the Trustee for cancellation or (ii) in part of a Global Security or securities for definitive Registered Securities, then the principal amount of such Global Security or Securities shall be reduced by an endorsement on such Global Security or Securities in an amount equal to the aggregate principal amount of such definitive Registered Securities. Interests in a Global Security or Securities may not be exchanged for definitive bearer Securities. Notwithstanding the foregoing, interests in a Global Security may not be exchanged for definitive Registered Securities during the sixteen day period immediately prior to and including each Interest Payment Date.
No service charge shall be made to the Holder for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 305, 906, 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption under Section 1103 and ending at the close of business on the day of such mailing, (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of the series (but only if and under the circumstances for which the Securities of such series are issuable as Registered Securities), provided that such Registered Security shall be immediately surrendered for redemption with written instructions for payment consistent with the provisions of this Indenture.
The provisions of this Section 306 are, with respect to any Global Security, subject to Section 312 hereof.
SECTION 307 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefore a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such Security or indemnity as may be required by them to save each of them and any agent of either or them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 307, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section 307 in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 307 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 308 Payment of Interest; Interest Rights Reserved
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid (in the case of a Bearer Security) to the bearer thereof and (in the case of a Registered Security) to the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Payment of interest, if any, in respect of any Registered Security will be made by check mailed to the address of the Person entitled thereto as such person's address appearing in the Security Register. Payment of interest, if any, in respect of any Registered Security may also be made, in the case of a Holder of at least U.S. $1,000,000 aggregate principal amount of Registered Securities, and payment of interest, if any in respect of a Global Registered Security shall be made, by wire transfer to a U.S. Dollar account maintained by the Holder with a bank in the United States; provided that such Holder elects payment by wire transfer by giving written notice to the Trustee
or a Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
Any interest on any Security of any series which is payable but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall, in the case of Registered Securities, forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and respective principal amounts of such Registered securities held by, the Holders appearing on the Security Register at the close of business on such Special Record Date. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefore to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series or any Global Registered Security in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange.
Defaulted Interest on Bearer Securities shall be payable to the bearer thereof at the time of payment of such Defaulted Interest by the Company.
Subject to the foregoing provisions of this Section 308, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security, shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 309. Persons Deemed Owners
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 308) interest, if any, on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. All such payments so made to any such person, or upon such person's order, shall be valid, and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Security.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Book-Entry Depositary for a Global Bearer Security as the absolute owner of such Global Bearer Security for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Global Bearer Security or coupon be overdue, and neither the Company or the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Book-Entry Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall impair, as between a Book-Entry Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Book-Entry Depositary as holder of any Security.
SECTION 310. Cancellation
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section 310, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as directed by a Company Order.
SECTION 311. Computation of Interest
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Global Securities
If the Company shall establish pursuant to Section 301 that the Securities of a particular series are to be issued in the form of a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 303, authenticate and deliver, a Global Security or Securities which (i) shall represent, and shall be denominated in an aggregate amount equal to the aggregate principal amount of, all the Outstanding Securities of such series, (ii) shall be in bearer form or, if in registered form registered in the name of the Book-Entry Depositary or its nominee, (iii) shall be delivered by the Trustee to the Book-Entry Depositary or pursuant to the Book-Entry Depositary's instruction and (iv) shall bear a legend substantially to the following effect:
"This Security is a Global Security within the meaning of the Indenture hereinafter referred to and if this Security is in bearer form, is held by a Book-Entry Depositary or, if this Security is in registered form, is registered in the name of a Book-Entry Depositary or a nominee of a Book-Entry Depositary. This Security is exchangeable for Securities, if this Security is in bearer form, held by, or if this Security is in registered form, registered in the name of, a person other than the Book-Entry Depositary or its nominee only in the limited circumstances described in the Indenture.
Unless this Global Security is presented by an authorized representative of the Book-Entry Depositary to the Company or its agent for registration of transfer, if this Security is in registered form, exchange or payment, and any definitive Registered Security is issued in the name or names as directed in writing by the Book-Entry Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the bearer or the registered owner hereof, as the case may be, the Book-Entry Depositary, has an interest herein."
Unless and until definitive Registered Securities of a series are issued in exchange for the Global Security of a series as permitted by this Indenture, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 306, only to another nominee of the Book-Entry Depositary for such series, or to a successor Book-Entry Depositary for such series selected or approved by the Company or to a nominee of such successor Book-Entry Depositary.
No Security that is not a Global Bearer Security may be payable to bearer (except as otherwise provided in an indenture supplemental hereto or in an Officers' Certificate (pursuant to a Board Resolution) pursuant to Section 301(16)).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and rights to receive payments of any principal, premium or interest in respect thereof and any right to receive any Additional Amount as provided in Section 1009), and the Trustee shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either (A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 307 and (ii) Securities for whose payment money has theretofore been deposited in trust with the Trustee or any paying agent or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 403, as applicable.
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount of (a) money in the currency or units of currency in which such Securities are payable, or (b) U.S. Government Obligations (denominated in the same currency or units of currency in which such Securities are payable) which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the Stated Maturity or Redemption Date, as the case may be, money in an amount, or (c) a combination
of money or U.S. Government Obligations as provided in (b) above, in each case, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 401 or if money or U.S. Government Obligations shall have been deposited with or received by the Trustee pursuant to Section 403, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money
(a) Subject to the provisions of the last paragraph of Section 1003, all money or U.S. Government Obligations deposited with the Trustee pursuant to Sections 401 or 403 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Sections 401 or 403, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, to the persons entitled thereto, of the principal of, premium, if any, and interest, if any, on the Securities for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as provided by Sections 401 or 403.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Sections 401 or 403 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon Company request any U.S. Government Obligations or money held by it as provided in Sections 401 or 403 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or money was deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture.
(d) Any monies paid by the Company to the Trustee or any Paying Agent, or held by the Company in trust, for the payment of the principal of, premium, if any, or interest, if any, or Additional Amounts on any Securities and remaining unclaimed at the end of two years after such principal, premium, interest or Additional Amounts become due and payable will be repaid to the Company, or released from the trust, upon its written request, and upon such repayment or release all liability of the Company, the Trustee and such Paying Agent with respect thereto will cease.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series
The Company, at its option, may elect (a) to be discharged from any and all obligations in respect of the Securities of a Series (except in each case for the obligations to register the transfer or exchange of the Securities of that series, replace stolen, lost or mutilated Securities of that series, maintain paying agencies and hold moneys for payment in Trust); or (b) not to comply with any term, provision or condition set forth in Sections 801, 1004 and 1005 with respect to the Securities of any series, provided that the following conditions shall have been satisfied:
The Company has deposited or caused to be irrevocably
deposited (except as provided in Section 607, 402(d) and the last paragraph of
Section 1003) with the Trustee (specifying that each deposit is pursuant to this
Section 403) as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such
series, (i) money or (ii) U.S. Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their terms will
provide money in an amount, or (iii) a combination thereof, in each case, in an
amount sufficient, in the opinion of a nationally recognized firm of independent
accountants, to pay and discharge the principal of, premium, if any, and
interest, if any (including any Additional Amounts then known), if any, on the
outstanding Securities of such series on the dates such payments are due in
accordance with the terms of the Securities of such series, or if the Company
has designated a redemption date pursuant to the final sentence of this
paragraph, to and including the redemption date so designated by the Company),
and no Event of Default or event which with notice or lapse of time would become
an Event of Default (including by reason of such deposit) with respect to the
Securities of such series shall have occurred and be continuing on the date of
such deposit or, insofar as Section 501(7) is concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be satisfied until the expiration of
such period), and the Securities of such series will not be delisted by any
securities exchange on which they are traded as a result of the deposit of trust
funds in trust. To exercise any such option, the Company is required to deliver
to the Trustee (i) an opinion of independent counsel of recognized standing to
the effect that (x) the Holders of the Securities of such series will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such deposit, and will be subject to United States federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case absent such deposit and (y) the deposit shall not result in the
Company being deemed to be an "investment company" required to be registered
under the Investment Company Act of 1940, as amended, which in the case of
clause (a) must be based on a change in law or a published ruling by the United
States Internal Revenue Service and (ii) an Officers' Certificate as to
compliance with all conditions precedent provided for in the indenture relating to the satisfaction and discharge of the Securities of such series. If the Company shall wish to deposit or cause to be deposited money or U.S. Government Obligations to pay or discharge the principal of, premium, if any and interest, if any, (including any Additional Amounts then known), if any, on the outstanding Securities of such series to and including a Redemption Date on which all of the outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution delivered to the Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by a irrevocable Company Request that the Trustee give notice of such redemption in the name and at the expense of the Company not less than 30 nor more than 60 days prior to such Redemption Date in accordance with this Indenture.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
"Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events:
(1) default in the payment of any interest or any Additional Amounts upon any Security of that series when it becomes due and payable and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or
(3) default in the payment of any installment of any sinking fund provided with respect to such series, when and as due by the terms of a Security of that series; or
(4) material default in the performance, or material breach, of any covenant or obligation of the Company or the Guarantor in this Indenture (other than a covenant a default in whose performance or whose breach is elsewhere in this Section 501 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series of Securities other than that series) and continuance of such material default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company or the Guarantor by the Trustee or to the Company or the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) a default in the payment of the principal of any bond, debenture, note or other evidence of indebtedness, in each case for money borrowed, or in the payment of principal under any mortgage, indenture (including this Indenture) or instrument under which there
may be issued or by which there may be secured or evidenced any indebtedness for money borrowed, of the Company, the Guarantor or any Significant Subsidiary, which default for payment of principal is in an aggregate principal amount exceeding U.S. $50,000,000 (or its equivalent in any other currency or currencies) when such indebtedness becomes due and payable (whether at maturity, upon redemption of acceleration or otherwise), if such default shall continue unremedied or unwaived for more than 30 Business Days and the time for payment of such amount has not been expressly extended; provided, however, that, subject to the provisions of Sections 601 and 602, the Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company or the Guarantor, from any Holder, from the holder of any such indebtedness or from the trustee under any such mortgage, indenture or other instrument; and provided, further, that if such default under such indenture or instrument shall be remedied or cured by the Company, the Guarantor or such Significant Subsidiary or waived by the holders of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been remedied, cured or waived without further action upon the part of the Trustee or any of the Holders; or
(6) any Guarantee shall be held in a judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect; or
(7) the failure of the Company, the Guarantor, or a Significant Subsidiary generally to pay its debts as they become due, or the admission in writing of its inability to pay its debts generally, or the making of a general assignment for the benefit of its creditors, or the institution of any proceeding by or against the Company, the Guarantor or a Significant Subsidiary (other than any such proceeding brought against the Company, the Guarantor or a Significant Subsidiary that is dismissed within 180 days from the commencement thereof) seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition (in each case, other than a solvent liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition) of it or its debts under any law relating to bankruptcy, insolvency, reorganization, moratorium or relief of debtors, or seeking the entry of an order for relief or appointment of an administrator, receiver, trustee, intervenor or other similar official for it or for any substantial part of its property, or the taking of any action by the Company, the Guarantor or a Significant Subsidiary to authorize any of the actions set forth in this subparagraph (7); or
(8) any other Event of Default provided in the supplemental indenture or provided in or pursuant to the Board Resolution under which such series of Securities is issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such declaration of acceleration with respect to Securities of any series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as hereinafter in this Article provided, if all Events of Default with respect to Securities of that series have been cured or waived (other than the non-payment of principal of the Securities which has become due solely by reason of such declaration of acceleration) then such declaration of acceleration and its consequences shall be automatically annulled and rescinded.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if
(1) default is made in the payment of any interest on any Security of a series when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of, premium, if any, on any Security of a series at the Stated Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit of the Holders of such Securities of such series, the whole amount then due and payable on such Securities of such series for principal of, premium, if any, and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal of, premium, if any, and any overdue interest, at the rate or rates prescribed therefore in such Securities of such series, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If any Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights.
SECTION 504. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation (other than a solvent liquidation), bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal of, premium, if any, and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be applied in the following order with respect to the Securities of any series, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal of, premium, if any, or interest, if any, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee
under Section 607;
SECOND: In case the principal and premium, if any, of the
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Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities of such a series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee and to the extent permitted by law) upon the overdue installments of interest at the rate prescribed there for in such Securities, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid on all the Securities of such series for principal, premium, if any, and interest, if any, with interest upon the overdue principal of premium, if any, and (to the extent that such interest has been collected by the Trustee and to the extent permitted by law) upon overdue installments of interest at the rate prescribed therefor in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and any premium and interest, without preference or priority of principal over interest, or of interest over principal or premium, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and any premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
SECTION 507. Limitation on Suits
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such requests;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
Notwithstanding Section 507, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, premium, if any, or (subject to Section 307) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security, (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Company, the Trustee and the Holders shall continue as through no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right to remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) the Trustee shall not determine that the action so directed would be prejudicial to Holders not taking part in such action.
SECTION 513. Waiver of Past Defaults
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default.
(1) in the payment of the principal of, premium, if any, or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
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Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant in such suit, but the provisions of this Section 514 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal, of, premium, if any, or interest, if any, on any Security on or after the Stated Maturity or Maturities expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities
(a) Except during the continuance of a default with respect to the Securities of any series,
(1) the Trustee undertakes to perform, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the same to determine whether or not they conform to the requirements of this Indenture.
(b) In case a default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless the Trustee was negligent in ascertaining the pertinent facts;
(2) no provision of this Indenture shall require the Trustee to spend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if repayment of such funds or adequate indemnity against such risk or liability satisfactory to the Trustee has not been assured to it; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the outstanding Securities of any series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series.
(d) Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 601.
SECTION 602. Notice of Defaults
Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors of a Responsible Officer of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 602, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order or as otherwise expressly provided herein and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expand or risk its own funds or to exercise, at the request or direction of any of the Holders, any of the rights or powers vested in it by this Indenture pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled
upon reasonable prior request and during normal business hours to examine the books, records and premises of the company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and shall not be liable for the actions or omissions of such agents appointed and supervised by it with due care.
SECTION 604. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee or any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time such compensation as is agreed upon in writing;
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursement and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel, which compensation, expenses and disbursements shall be set forth in sufficient written detail to the satisfaction of the Company), except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors and employees for, and to hold it harmless against, any loss, liability or expense incurred without negligence, bad faith, or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. Obligations under this Section 607(3) will survive the satisfaction and discharge of this Indenture pursuant to Section 401 hereof.
SECTION 608. Disqualification; Conflicting Interests
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be eligible to act as trustee under the Trust Indenture Act and which shall have a combined capital and surplus of at least U.S. $50,000,000. If the Trustee does not have an office in The City of New York, the Trustee may appoint an agent in The City of New York reasonably acceptable to the Company to conduct any activities which the Trustee may be required under this Indenture to conduct in The City of New York. If the Trustee does not have an office in The City of New York or has not appointed an agent in The City of New York, the Trustee shall be a participant in The Depository Trust Company and FAST distribution systems. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a United States federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 609, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 609, the Trustee shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor Trustee
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with section 310(b) of the Trust Indenture Act pursuant to Section 608 with respect to any series of Securities after written request therefor by the Company or by any Holder who has been a bona fide holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situations, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but on request of the company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collecting of Claims Against Company
(a) Subject to Subsection (b) of this Section 613, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to a default, as defined in Subsection (c) of this Section 613, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the Holders of the Securities and the holders of other indenture securities, as defined in Subsection (c) of this Section 613:
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest effected after the beginning of such three months' period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this Subsection, or from the exercise of any right of setoff which the Trustee could have exercised if a petition in bankruptcy had been applied by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such three months' period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such claim by any Person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such three months' period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default, as defined in Subsection (c) of this Section 613, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as provided in paragraph (B) or (C), as the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such three months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account for the funds and property held in such special account, the proceeds thereof shall be apportioned among the Trustee, the Holders and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the Cayman Islands or the United Kingdom, as applicable, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the receptive claims of the Trustee and the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the Cayman Islands or the United Kingdom, as applicable, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the Cayman Islands or the United Kingdom, as applicable, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim.
Any Trustee which has resigned or been removed after the beginning of such three months' period shall be subject to the provisions of this Subsection as through such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three months' period, it shall be subject to the provisions of this Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would have given rise to the obligation to account, if such Trustee had continued as Trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advances and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depository, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction, as defined in Subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper, as defined in Subsection (c) of this Section 613.
(c) For the purposes of this Section 613 only:
(1) The term "default" means any failure to make payment in full of the principal of or interest on any of the Securities or upon the other indenture securities when and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" means securities upon which the Company is an obligor (as defined in the Trust Indenture Act) outstanding under any other indenture (i) under which the Trustee is also trustee, (ii) which contains provisions substantially similar to the provisions of this Section 613, and (iii) under which a default exists at the time of the apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Code or Title 11 of the United States Code.
SECTION 614. Authenticating Agents
From time to time the Trustee, with the prior written approval of the Company, may appoint one or more Authenticating Agents with respect to one or more series of Securities with power to act on the Trustee's behalf and subject to its direction in the authentication and delivery of Securities of
such series or in connection with transfers and exchanges under Sections 304, 305, 306 and 1104 as fully to all intents and purposes as though the Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities by an Authenticating Agent pursuant to this Section 614 shall be deemed to be authentication and delivery of such Securities "by the Trustee". Each such Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least U.S. $50,000,000 and subject to supervision or examination by Federal, state or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 614 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be
merged or with which it may be consolidated, or any corporation resulting from,
any merger or consolidation or to which any Authenticating Agent shall be a
party, or any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 614, without the execution or filing of any paper or any further act on
the part of the parties hereto or the Authenticating Agent or such successor
corporation.
An Authenticating Agent may resign at any time by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section 614, the Trustee may appoint a successor Authenticating Agent with the prior written approval of the Company and shall mail notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as the names and addresses of such Holders appear on the Security Register. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614 as may be agreed in a separate writing among the Company, the Trustee and such Authenticating Agent, and the Trustee shall be entitled to be reimbursed for such payments pursuant to Section 607.
If an appointment with respect to one or more series of Securities is made pursuant to this Section 614, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to in the within mentioned Indenture.
{NAME OF AUTHENTICATING AGENT}
By:
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Address of Holders
The Company will furnish or cause to be furnished to the Trustee with respect to the Registered Securities of each series
(a) semi-annually, not later than 15 days after each Regular Record Date, or, in the case of any series of Registered Securities on which semiannual interest is not payable, not more than 15 days after such semi-annual dates as may be specified by the Trustee, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date or semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar from and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar for any series of Registered Securities, no such list shall be required to be furnished with respect to any such series.
SECTION 702. Preservation of Information; Communications to Holders
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 702(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections to sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable, by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee
(a) Within 60 days after July 1 of each year, commencing July 1, 1998, the Trustee shall transmit by mail to all Holders of Securities a brief report dated as of such July 1, of such year with respect to any of the following events which may have occurred within the previous 12 months (but if no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 609 and its qualifications under Section 608;
(2) the creation of or any material change to a relationship specified in Section 608;
(3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than one-half of one percentum of the principal amount of the Securities outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Sections
613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Securities, except action in respect of a default, notice of which has been or is to be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of Securities a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to Subsection (a) of this Section 703 (or if no such report has yet been so transmitted, since the date of execution of this instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on property or funds held or collected by it as Trustee and which it has not previously reported pursuant to this Subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of the securities outstanding at such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each United States national securities exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any securities are listed on any United States national securities exchange.
SECTION 704. Reports
The Company and the Guarantor shall:
(1) file with the Trustee, within 30 days after the Guarantor
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Guarantor
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Guarantor is not required to file information, documents or reports
pursuant to either of said Sections and one or more series of the
Securities is listed on a United States national securities exchange,
then it shall file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
United States national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section 704 as may be required by rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. Company or Guarantor May Consolidate Etc., Only on Certain Terms
Nothing contained in this Indenture or in the Securities of
any series shall prevent the Company or the Guarantor from consolidating with or
merging into another corporation or corporations, or successive consolidations
or mergers or conveying, transferring, leasing or otherwise disposing of its
properties and assets substantially as an entirety to any person, provided that
(a) the successor entity expressly assumes all of the Company's applicable
obligations on the Securities or the Guarantor's applicable obligations under
the guarantee, as the case may be, and (b) immediately after giving effect to
such transaction no Event of Default and no event which, after notice or lapse
of time or both, would become an Event of Default shall have happened and be
continuing. In addition, each of the Company and the Guarantor may assign and
delegate all of its rights and obligations on the Securities of any series,
under this Indenture, on the Guarantee and all other documents, agreements and
instruments related thereto, as applicable, to any Person that owns all of the
ordinary shares of the Company or the Guarantor or to any Person that owns all
of the ordinary shares of a Person that owns all of the ordinary shares of the
Company or the Guarantor, and upon any such Person assuming such rights and
obligations the Company or the Guarantor shall be automatically released from
such obligations, provided that immediately after given effect to such
transaction no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default shall have happened and be
continuing.
In the event that any such successor entity is organized under the laws of a country located outside of a Taxing Jurisdiction and withholding or deduction is required by law for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within such country in which the successor entity is organized or by or within any political subdivision thereof or any authority therein or thereof having power to tax, the successor entity shall pay to the relevant Holder of the Securities of such series such Additional Amounts, under the same circumstances and subject to the same limitations as are specified for in Section 1009 hereof, but substituting for the applicable Taxing Jurisdiction in each place the name of the country under the laws of which such successor entity is organized, managed and controlled or has a place of business. In addition, such successor entity shall be entitled to effect an optional tax redemption under the same circumstances and subject to the same limitations as are set forth in Section 1108 hereof, but substituting for the applicable Taxing Jurisdiction in each place the name of the country under the laws of which such successor entity is organized, managed and controlled or has a place of business and substituting the date of such succession for the date of the relevant underwriting agreement for the Securities of such series.
SECTION 802 Successor Corporation to be Substituted
Upon any consolidation by the Company or the Guarantor with or
merger by the Company or the Guarantor into any other corporation or any
conveyance, transfer, lease or other disposition of the properties and assets of
the Company or the Guarantor substantially as an entirety in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company or the Guarantor is merited or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Company or the Guarantor herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders
Without the consent of any Holders, the Company, the Guarantor and the Trustee, at any time and form time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another company to the Company or the Guarantor and the assumption by any such successor of the covenants of the Company or the Guarantor herein and in the Securities or any Guarantee;
(2) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor;
(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series);
(4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Bearer Securities, registrable or not registrable as to principal, and with or without interest coupons, or to facilitate the issuance of Securities in uncertificated form, or to permit or facilitate the issuance of extendible Securities;
(5) to change or eliminate any of the provisions of this Indenture; provided that an such change or elimination shall become effective only as to the Securities of any series created by such supplemental indenture and Securities of any series subsequently created to which such change or elimination is made applicable by the subsequent supplemental indenture creating such series;
(6) to secure the Securities;
(7) to establish the form and terms of the Securities of any series as permitted by Sections 201 and 301;
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee which respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b);
(9) to provide for any rights of the Holders of Securities of any series to require the repurchase of Securities of such series by the Company; or
(10) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to evidence the merger of the Company or the replacement of the Trustee, or to make any other provisions with respect to matters or questions arising under this Indenture; provided such action shall not materially and adversely affect the interests of the Holders of Securities of any series.
SECTION 902. Supplemental Indentures with Consent of Holders
With the consent of the Holders of a majority in aggregate principal amount of the outstanding Securities of all series affected by such supplemental indenture (voting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, the Guarantor and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon (including Additional Amounts) or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section 902 or
Section 513, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
902, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental Indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall, if so required by the Trust Indenture Act, conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of, premium, if any, and interest and Additional Amounts, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture. An installment of principal of or interest on the Securities of a series shall be considered paid on the date it is due if the Trustee or Paying Agent holds at 11:00 a.m. New York City time on that date money deposited by the Company in immediately available funds and designated for, and sufficient to pay, the installment in full.
Neither the Company, the Guarantor, nor any agent of the Company or the Guarantor will have any responsibility or liability for any aspect relating to payments made or to be made by the Book-Entry Depositary to DTC in respect of the Securities of a series or the Book-Entry Interests. None of the Company, the Trustee, the Book-Entry Depositary or any agent of any of the foregoing will have any responsibility or liability for any aspect relating to payments made or to be made by DTC on account of a Participant's or Indirect Participant's ownership or an interest in the Book-Entry Interest or for maintaining, supervising or reviewing any records relating to a Participant's interests in the Book-Entry Interests.
SECTION 1002. Maintenance of Office or Agency
The Company will maintain (i) in the Borough of Manhattan, The City of New York, an office or agency where Securities of any series may be presented or surrendered for payment, and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served and if definitive Registered Securities have been issued, an office or agency of a Transfer Agent where Securities may be surrendered for registration of transfer or exchange, and (ii) an office or agency of a Paying Agent where the Securities may be paid in Luxenbourg so long as the Securities are listed on the Luxembourg Stock Exchange and the rules of such exchange so require. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of that series pursuant to Section 1001
may be presented at the place specified for the purpose pursuant to Section 301, and the Company hereby appoints the Paying Agent as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Securities of one or more series and any appurtenant coupons (subject to Section 1001) may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for any series of Securities for such purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such other office or agency. The Company will at all times maintain at least one Paying Agent which is located outside the United Kingdom for each series of Securities.
SECTION 1003. Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of, premium, if any, or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, no later than 11:00 A.M., New York City time, on or prior to each due date of the principal of, premium, if any, or interest, if any, on any securities of that series, deposit with a Paying Agent a sum in immediately available funds sufficient to pay the principal, premium, if any, or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the Provisions of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of, premium, if any, or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal of, premium, if any, or interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by the Company or by any Paying Agent to the Trustee, the Company or such Paying Agent, as the case may be, shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 1004. Limitation on Liens
If this covenant shall be made applicable to the Securities of a particular series as contemplated by Section 301 hereof, the Company and the Guarantor shall not, and shall not cause or permit any Significant Subsidiary to, issue, assume or guarantee any notes, bonds, debentures or other similar evidences of indebtedness, in each case for money borrowed ("Debt"), secured by a Lien upon any property or assets (other than cash) of the Company, the Guarantor or such Significant Subsidiary, as applicable, without effectively providing that the outstanding Securities (together with, if the Guarantor so determines, any other indebtedness or obligation then existing or thereafter created ranking equally with such Securities) shall be secured equally and ratably with (or prior to) such Debt so long as such Debt shall be so secured. The foregoing restriction on Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of such Securities;
(b) (i) any Lien created or arising over any property which is acquired, constructed or created by the Company, the Guarantor or any of its Significant Subsidiaries, but only if (A) such Lien secures only principal amounts (not exceeding the cost of such acquisition, construction or creation) raised for the purposes of such acquisition, construction or creation, together with any costs, expenses, interest and fees incurred in relation thereto or a guarantee given in respect thereof, (B) such Lien is created or arises on or before 90 days after the completion of such acquisition, construction or creation and (C) such Lien is confined solely to the property so acquired, constructed or created; or (ii) any Lien to secure Debt of the Company, the Guarantor or a Significant Subsidiary incurred in connection with a specifically identifiable project where the Lien relates to and is confined to a property or properties (including, without limitation, shares or other rights of ownership
in the entries which own such property or project) involved in such project and acquired by the Company, the Guarantor or a Significant Subsidiary after the date of original issue of the Securities of any series and the recourse of the creditors in respect of such Debt is limited to any or all of such project and property (including as aforesaid);
(c) any Lien securing amounts not more than 90 days overdue or otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit balances in connection with the operation of cash management programs established for the benefit of the Company, the Guarantor or a Significant Subsidiary or in connection with the issuance of letters of credit for the benefit of the Company, the Guarantor or a Significant Subsidiary; (ii) any Lien securing Debt of the Company, the Guarantor or a Significant Subsidiary incurred in connection with the financing of accounts receivable; (iii) any Lien incurred or deposits made in the ordinary course of business, including, but not limited to, (A) any mechanics', materialmens', carriers', workmens', vendors' or other like Liens and (B) any Liens securing amounts in connection with workers' compensation, unemployment insurance and other types of social security; (iv) any Lien upon specific items of inventory or other goods and proceeds of the Company, the Guarantor or a Significant Subsidiary securing obligations of the Company, the Guarantor or a Significant Subsidiary in respect of bankers' acceptances issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods; (v) any Lien incurred or deposits made securing the performance of tenders, bids, leases, trade contracts (other than for borrowed money), statutory obligations, surety bonds, appeal bonds, government contracts, performance bonds, return-of-money bonds and other obligations of like nature incurred in the ordinary course of business; (vi) any Lien created by the Company, the Guarantor or a Significant Subsidiary under or in connection with or arising out of any pooling and settlement agreements or pooling and settlement arrangements of the United Kingdom electricity industry including, without limitation, the Pooling and Settlement Agreement dated March 30, 1990, as amended, modified or supplemented from time to time, or any transactions or arrangements entered into in connection with hedging or management of risks relating to the electricity industry in the United Kingdom; (vii) any Lien constituted by a right of set off or right over a margin call account or any form of cash or cash collateral or any similar arrangement for obligations incurred in respect of the hedging or management or risks under transactions involving any currency or interest rate swap, cap or collar arrangements, forward exchange transaction, option, warrant, forward rate agreement, futures contract or other derivative instrument of any kind; (viii) any Lien arising out of title retention or like provisions in connection with the purchase of goods and equipment in the ordinary course of business; and (ix) any Lien securing reimbursement obligations under letters of credit, guaranties and other forms of credit enhancement given in connection with the purchase of goods and equipment in the ordinary course of business;
(e) Liens in favor of the Company, the Guarantor or a Significant Subsidiary;
(f) (i) Liens on any property or assets acquired from a corporation which is merged with or into the Company, the Guarantor or a Significant Subsidiary, or any Liens on the property or assets of any
corporation or other entity existing at the time such corporation or other entity becomes a Subsidiary of the Guarantor and, in either such case, is not created in anticipation of any such transaction (unless such Lien is created to secure or provide for the payment of any part of the purchase price of such corporation); (ii) any Lien on any property or assets existing at the time of acquisition thereof and which is not created in anticipation of such acquisition (unless such Lien was created to secure or provide for the payment of any part of the purchase price of such property or assets); and (iii) any Lien created or outstanding on or over any asset of any Person which becomes a Significant Subsidiary on or after the date of the issuance of such Securities when such Lien is created prior to the date on which such Person becomes a Significant Subsidiary.
(g) (i) Liens required by any contract or statute in order to permit the Company, the Guarantor or a Significant Subsidiary to perform any contract or subcontract made by it with or at the request of a governmental entity or any department, agency or instrumentality thereof, or to secure partial, progress, advance or any other payments by the Company, the Guarantor or a Significant Subsidiary to such governmental unit pursuant to the provisions of any contract or statue; (ii) any Lien securing industrial revenue, development or similar bonds issued by or for the benefit of the Company, the Guarantor or a Significant Subsidiary, provided that such industrial revenue, development or similar bonds are nonrecourse to the Company, the Guarantor or such Significant Subsidiary; and (iii) any Lien securing taxes or assessments or other applicable governmental charges or levies;
(h) (i) any Lien which arises pursuant to any order of attachment, distraint or similar legal process arising in connection with court proceedings and any Lien which secures the reimbursement obligation for any bond obtained in connection with an appeal taken in any court proceeding, so long as the execution or other enforcement of such Lien arising pursuant to such legal process is effectively stayed and the claims secured thereby are being contested in good faith and, if appropriate, by appropriate legal proceedings, or any Lien in favor of a plaintiff or defendant in any action before a court or tribunal as security for costs and/or other expenses; or (ii) any Lien arising by operation of law or by order of a court or tribunal or any Lien arising by an agreement of similar effect, including, without limitation, judgment liens; or
(i) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Liens referred to in the foregoing clauses, for amounts not exceeding the principal amount of the Debt secured by the Lien so extended, renewed or replaced, provided that such extension, renewal or replacement Lien is limited to all or a part of the same property or assets that were covered by the Lien extended, renewed or replaced (plus improvements on such property or assets).
Notwithstanding the foregoing, the Company, the Guarantor or a
Significant Subsidiary may create or permit to subsist Liens over any property
or assets, so long as the aggregate amount of Debt secured by all such Liens
(excluding therefrom the amount of Debt secured by Liens set forth in clauses
(a) through (i), inclusive, above) does not exceed 10% of Consolidated Net
Tangible Assets.
Nothing contained in this Indenture in any way restricts or prevents the Company or any Subsidiary from incurring any Debt.
SECTION 1005. Limitation on Sale and Lease-Back Transactions
If this covenant shall be made applicable to the Securities of
a particular series as contemplated by Section 301 hereof, each of the Company
and the Guarantor covenants and agrees that so long as any Securities of such
series remains outstanding, each will not, and the Guarantor will not permit any
Significant Subsidiary to, enter into any arrangement with any person (other
than the Company, the Guarantor or a Significant Subsidiary), providing for the
leasing to the Company, the Guarantor or a Significant Subsidiary of any assets
which have been or are to be sold or transferred by the Company, the Guarantor
or such Significant Subsidiary to such person (a "Sale and Lease-Back
Transaction") unless; (i) such transaction involves a lease for a temporary
period not to exceed three years; (ii) such transaction is between the Company,
the Guarantor or a Significant Subsidiary and an affiliate of the Guarantor;
(iii) the Company or the Guarantor would be entitled to incur debt secured by a
Lien on the assets or property involved in such transaction at least equal in
amount to the Attributable Debt with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the Securities, pursuant to
the limitation on Liens described above other than pursuant to the penultimate
paragraph thereof; (iv) such transaction is entered into within 90 days after
the initial acquisition by the Company or the Guarantor of the assets or
property subject to such transaction; (v) after giving effect thereto, the
aggregate amount of all Attributable Debt with respect to all such Sale and
Lease-Back Transactions does not exceed 10% of Consolidated Net Tangible Assets;
or (vi) the Company, the Guarantor or a Significant Subsidiary within the twelve
months preceding the sale or transfer or the twelve months following the sale or
transfer, regardless of whether such sale or transfer may have been made by the
Company, the Guarantor or such Significant Subsidiary, applies in the case of a
sale or transfer for cash, an amount equal to the net proceeds thereof and, in
the case of a sale or transfer otherwise than for cash, an amount equal to the
fair value of the assets so leased at the time of entering into such arrangement
(as determined by the Board of Directors of the Company, the Guarantor or such
Significant Subsidiary), (a) to the retirement of debt, incurred or assumed by
the Company, the Guarantor or a Significant Subsidiary, which by its terms
matures at, or is extendible or renewable at the option of the obligor to, a
date more than twelve months after the date of incurring, assuming or
guaranteeing such debt or (b) to investment in any assets of the Company, the
Guarantor or any Significant Subsidiary.
SECTION 1006. Statement by Officers as to Default
The Guarantor will deliver to the Trustee within 120 days after the end of each fiscal year of the Guarantor a certificate from the principal executive, financial or accounting officer of the Guarantor, stating that in the course of the performance by such signer of his duties as an officer of the Guarantor he would normally have knowledge of any default by the Company or the Guarantor in the performance and observance of any of the covenants contained in Sections 1001 to 1008, stating whether or not he has knowledge of any such default without regard to any period of grace or requirement of notice and, if so, specifying each such default of which such signer has knowledge and the nature thereof.
SECTION 1007. Waiver of Certain Covenants
The Company or the Guarantor may omit in any particular instance to comply with any term, provision or condition set forth in this Indenture with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, provided that no such waiver shall without the consent of each Holder (a) change the Stated Maturity upon which the principal of or the interest on the Securities is due and payable, (b) reduce the principal amount thereof or the rate of interest thereon, (c) change any obligation of the Company to pay Additional Amounts, (d) change any Place of Payment or the currency in which, the Securities or any premium or the interest thereon is payable, (e) impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or (f) reduce the percentage in principal amount of the outstanding Securities of any series, the consent of whose Holders is required for any waiver of compliance with certain provisions of the Indenture of certain defaults hereunder and their consequences provided for in the Indenture. The Securities owned by the Company, the Guarantor or any of its Affiliates shall be deemed not to be outstanding for, among other purposes, consenting to any such waiver.
SECTION 1008. Further Assurances
The Company, the Guarantor and the Trustee shall execute and deliver all such other documents, instruments and agreements and do all such other acts and things as may be reasonably required to enable the Trustee to exercise and enforce its rights under this Indenture and under the documents, instruments and agreements required under this Indenture and to carry out the intent of this Indenture.
SECTION 1009. Payment of Additional Amounts
Unless the Securities of a particular series otherwise provide, all payments of principal and interest (including payments of discount and premium, if any) with respect to the Securities of a particular series shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within a Taxing Jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deductions, the Company or the Guarantor, as the case may be, shall pay to the Holder of such securities such additional amounts ("Additional Amounts") as will result in the payment to such Holder of the amount that would otherwise have been due to such Holder in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a person on behalf of, a Holder who is liable for such Gross-Up Taxes with respect to the Securities or any Guarantee, by reason of such Holder having some connection with the relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Taxing Jurisdiction) other than the mere holding of a Security
or the receipt of principal and interest (including payments of discount and premium, if any) in respect thereof or in respect of the Guarantee; or
(b) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that such Holder would have been entitled to such Additional Amounts on presenting such Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in a Taxing Jurisdiction;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority; or
(e) to, or to a Person on behalf of, a Holder of a Registered Security that is not a Global Security issued pursuant to the request of owners representing a majority in Outstanding principal amount of such Securities following and during the continuance of an Event of Default if such Holder (or any predecessor Holder) was one of such owners requesting that such Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (e) above. If the Company or the Guarantor, as applicable, shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company or the Guarantor, as applicable, will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
Reference to principal, interest, discount or premium in respect of the Securities (or any payments pursuant to any Guarantee) shall be deemed also to refer to any Additional Amounts which may be payable as set forth in this Indenture or in the Securities.
At least 10 Business Days prior to the first Interest Payment Date (and at least 10 Business Days prior to each succeeding Interest Payment Date if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate) the Company will furnish to the Trustee and any Paying Agent an Officers' Certificate instructing the Trustee and any Paying Agent whether payments of principal of or interest on the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any Gross-Up Taxes. If any such deduction or withholding shall be required, prior to such Interest Payment Date the Company will furnish the Trustee and any Paying Agent with an Officers' Certificate which specifies the amount, if any, required to be withheld on such payment to Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, and to hold the Trustee harmless against, any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part, arising out of or in connection with actions taken or omitted by the Trustee in reliance on any Officers' Certificate
furnished pursuant to this paragraph. Any Officers' Certificate required by this
Section 1009 to be provided to the Trustee and any Paying Agent shall be deemed
to be duly provided if telecopied to the Trustee and such Paying Agent.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of Gross-Up Taxes. Copies of such receipts shall be made available to the Holders of the Securities upon request.
SECTION 1010. Copies Available to Holders
Copies of this Indenture shall be available for inspection by the Holders on a Business Day during normal business hours at the principal office of the Company and at the Corporate Trust Office. In addition, if the Securities of any series are listed on the London Stock Exchange, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, copies of this Indenture, the Deposit Agreement, the Letter of Representations, the memorandum and articles of association of the Company and the most recent publicly available annual report of the Guarantor shall be made available for inspection by the Holders of such Securities on a business Day during normal business hours at the offices of the paying agents and at the office of the listing agent required to be maintained by such exchange for so long as the Securities of such series are outstanding and are listed on such stock exchange.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified in or contemplated by Section 301 for Securities of any series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be authorized by a Board of Directors resolution and evidenced by an Officers' Certificate. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or pursuant to an election by the Company which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction or conditions.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed
If less than all the Securities of any series are to be redeemed, the particular securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions equal to the minimum authorized denomination for Securities of that series (or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection for redemption if they are identified by certificate number in a written statement signed by an authorized officer of the Company and delivered to the Security Registrar at least 30 days prior to the Redemption Date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (b) an entity specifically identified in such written statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount there of to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption
Notice of redemption shall be given not less than 30 days nor more than 60 days prior to the Redemption date to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will case to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Principal Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date (to the extent that such amounts are not already on deposit at such time in accordance with the provisions of Sections 401, 403 or 1007).
SECTION 1006. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued and unpaid interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued and unpaid interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, and in the case of Registered Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date as the rate prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part
Any Security (including any Global Security) which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee upon written direction shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the security so surrendered; provided, that if a Global Security is so surrendered, the new Global Security shall be in a denomination equal to the unredeemed portion of the principal of the Global Security so surrendered.
SECTION 1108. Optional Redemption in the event of Change in Taxing Jurisdiction Tax Treatment
The Securities of any series may be redeemed at the election
of the Company, as a whole, but not in part, by the giving of notice as provided
in Section 1104, at a price equal to the outstanding principal amount thereof,
together with Additional Amounts, if any, and accrued interest, if any, to the
Redemption Date, if (a) the Company or the Guarantor satisfies the Trustee that
it has or will become obligated to pay Additional Amounts on the Securities of
such series, as a result of either (x) any change in, or amendment to, the laws
or regulations of a Taxing Jurisdiction, or any change in the application or
interpretations of such laws or regulations, which change or amendment becomes
effective on or after the date of the relevant underwriting agreement for the
Securities of such series, or (y) (i) the issuance of definitive Registered
Securities as the result of DTC having notified the Company and the Book-Entry
Depositary that it is unable or unwilling to continue to hold the Book-Entry
Interests or at any time ceases to be a "clearing agency" registered as such
under the Exchange Act, and, in either case, a successor is not appointed by the
Company within 120 days, (ii) the book-Entry Depositary with respect to the
Global Securities of such series and a successor Book-Entry Depositary is not
appointed within 120 days or (iii) there has occurred and is continuing an Event
of Default with respect to the Securities of such series and the Holder, in such
circumstances, has requested in writing a definitive Registered Security, and
(b) such obligation cannot be avoided by the Company or the Guarantor taking
reasonable measures available to it; provided, however, that no such notice of
redemption shall be given earlier than 90 days prior to the earliest date on
which the Company or the Guarantor would be obligated to pay such Additional
Amounts were a payment in respect of the Securities then due. Prior to the
publication of any notice of redemption of such Securities pursuant to this
Indenture, the Company or the Guarantor will deliver to the Trustee an Officers'
Certificate stating that the obligation to pay such Additional Amounts cannot be
avoided by the Company or the Guarantor taking reasonable measures available to
it, and the Trustee shall accept such certificate as sufficient evidence of the
condition precedent set forth in clause (b) above, and such certificate shall be
conclusive and binding on the Holders of the Securities of such series.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to redemption as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 310, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section 1202, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Company through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund Redemption Price specified in such Securities. SECTION 1203. Redemption of Securities for Sinking Fund
Not less than 30 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying (a) the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, (b) whether or not
the Company intends to exercise its right, if any, to make an optional sinking
fund payment with respect to such series on the next ensuing sinking fund
payment date and, if so, the amount of such optional sinking fund payment, and
(c) the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202, and will also
deliver to the Trustee any Securities to be so delivered. Such written statement
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such 30th day, to deliver
such written statement and Securities specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect therefore and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section
1203.
Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106, and 1107.
The Trustee shall not redeem or cause to be redeemed any Security of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a default in payment of interest with respect to Securities of that series or an Event of Default with respect to the Securities of that series except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default, shall occur, and any moneys thereafter paid into the sinking fund, shall during the continuance of such default or Event of Default, be deemed to have been collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 513 or the default or Event of Default cured on or before the 30th day preceding the sinking fund payment date, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section 1203 to the redemption of such Securities.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes of Meetings
A meeting of the Holders may be called at any time from time to time pursuant to this Article Thirteen for any of the following purposes.
(1) to give any notice to the Company or to the Trustees, or to consent to the waiving of any default hereunder and its consequence, or to take any other action authorized to be taken by Holders pursuant to Article Nine hereof;
(2) to remove the Trustee and appoint a successor trustee pursuant to Article Six hereof;
(3) to consent to the execution of an indenture supplemental hereto pursuant to Section 902 hereof.
SECTION 1302. Place of Meetings
(a) The Trustee may at any time (upon not less than 21 days' notice) call a meeting of Holders to be held at such time and at such place in the location determined by the Trustee pursuant to Section 1302 hereof. Notice of every meeting of Holders, setting forth the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed to each Holder and published in the manner contemplated by Section 106 hereof.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding, shall have requested the Trustee to call a meeting of the Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first giving of the notice of such meeting within 20 days after receipt of such request, then the Company or the Holders in the amount above specified may determine the time (not less than 21 days after notice is given) and the place in the location determined by the Company or the Holders pursuant to this Section 1302 for such meeting and may call such meeting to take any action authorized in Section 1301 hereof by giving notice thereof as provided in Section 1302(a) hereof.
SECTION 1303. Voting at Meetings
To be entitled to vote at any meeting of Holders, a Person shall be (i) a Holder or (ii) a Person appointed by an instrument in writing as proxy for a Holder or Holders by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons so entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel, any representatives of the Company and its counsel.
SECTION 1304. Voting Rights, Conduct, and Adjournment
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the holding of Securities of a series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities of a series shall be proved in the manner specified in Article Two hereof and the appointment of any proxy shall be proved in such manner as it is deemed appropriate by the Trustee or by having the signature of the person executing the proxy witnessed or guaranteed by any bank, banker, or trust company customarily authorized to certify to the holding of a security such as a Global Note.
(b) At any meeting of Holders, the representative of Persons holding or representing Securities of a series in an aggregate principal amount sufficient under the appropriate provision of this Indenture to take action upon the business for the transaction of which such meeting was called shall constitute a quorum. Except as otherwise provided with respect to any required aggregate principal amount of Securities of a series required for the taking of any action pursuant to Article Nine hereof, in no event shall less than 75% of the votes given by Persons holding or representing Securities of such series at any meeting of Holders be sufficient to approve an action. Any meetings of Holders duly called pursuant to Section 1303 hereof may be adjourned from time to time by vote of the Holders (or proxies for the Holders) of a majority of the
Securities of a series represented at the meeting and entitled to vote, whether or not a quorum shall be present; and the meeting may be held as so adjourned without further notice. No action at a meeting of Holders shall be effective unless approved by Persons holding or representing Securities of a series in the aggregate principal amount required by the provision of this Indenture pursuant to which such action is being taken.
(c) At any meeting of Holders, each Holder or proxy shall be entitled to one vote for each $1,000 principal amount of outstanding Securities of a series held or represented.
SECTION 1305. Revocation of Consent by Holders
At any time prior to (but not after) the evidencing the Trustee of the taking of any action at a meeting of Holders by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal Corporate Trust Office and upon proof of holding as provided herein, revoke such consent so far as concerns such Securities. Except as aforesaid any such consent given by the Holders of any Securities shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Securities and of any Securities issued in exchange therefore, in lieu thereof or upon transfer thereof, irrespective of whether or not any notation in regard thereto is made upon such Securities. Any action taken by the Holders of the percentage in aggregate principal amount of the Holders specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities.
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. Applicability of Article: Unconditional Guarantee
If, pursuant to Section 301, provision is made for the Guarantee of the Securities of any series by the Guarantor, then provisions of this Article Fourteen, with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities, shall apply to such Securities. The Guarantor hereby fully and unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal of (including any amount due in respect of original issue discount), premium, if any, and interest in respect of each Security (and any Additional Amounts payable in respect thereof) and the due and punctual payment of any sinking fund payments provided for pursuant to terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such Security and of this Indenture, regardless of any defense, right of set-off or counterclaim that the Guarantor may have or assert, except the defense of payment. The Guarantor's obligation to make a payment under this Article Fourteen may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by causing the Company to pay such amounts to the Holders.
To the extent permitted under applicable law, if any Holder or the Trustee is required by a final non-appealable judgment of any court or otherwise to return to either the Company or the Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantor, any amount paid by either the Company or the Guarantor to such Holder or the Trustee, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. To the extent permitted under applicable law, the Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five for the purpose of any Guarantee, notwithstanding any stay, injunction, or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of any Guarantee.
No past, present or future stockholder, officer, director, employee, or incorporator of the Guarantor shall have any personal liability under the Guarantee set forth in this Section 1401 by reason of his or its status as such stockholder, officer, director, employee or incorporator.
The Guarantee set forth in this Section 1401 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been authenticated by or on behalf of the Trustee by manual signature.
SECTION 1402. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this guarantee and of any liability to which it applies or may apply, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the Trustee, or any other Person before proceeding against the Guarantor, protest, notice of non-payment, notice of dishonor, notice of redemption and all other notices and demands.
SECTION 1403. Guarantor Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under this Article Fourteen shall in no way be affected or impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Company of any express or implied agreement, covenant, term or condition relating to the Securities to be performed or observed by the Company;
(b) the extension of time for the payment by the Company of all or any portion of the interest on the Securities, the Redemption Price of any other sums payable under the terms of the Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Securities.
(c) any failure, omission, delay, or lack of diligence on the part of the Holders to enforce, assert, or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Securities, or any action on the part of the Company granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting the Company or any of the assets of the Company;
(e) any invalidity or, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
(g) any other circumstances whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment of the underlying obligation) it being the intent of this Article Fourteen that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 1404. Execution of Guarantee
To evidence its guarantee to the Holders specified in Section 1401, the Guarantor hereby agrees to execute the notation of the Guarantee in substantially the form set forth in Section 204 to be endorsed on each Security authenticated and delivered by the Trustee. The Guarantor hereby agrees that is Guarantee set forth in Section 1401 shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee. Each such notation of the Guarantee shall be signed on behalf of the Guarantor, by a director or officer, prior to the authentication of the Security on which it is endorsed, and the delivery of such Security by the Trustee, after the due authentication thereof by the Trustee hereunder, shall constitute due delivery of the Guarantee on behalf of the Guarantor. Such signature upon the notation of the Guarantee may be a manual or facsimile signature of any present, past, or future such director or officer and may be imprinted or otherwise reproduced below the notation of the Guarantee, and in case any such director or officer who shall have signed the notation o the Guarantee shall cease to be such director or officer before the Security on which such notation is endorsed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed the notation of the Guarantee had not ceased to be such director or officer of the Guarantor.
SECTION 1405. Subrogation
The Guarantor shall be subrogated to all rights (if any) of the Holders against the Company in respect to any amounts paid to the Holders by the Guarantor under this Article Fourteen with respect to any series of Securities; provided, however, that Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may require by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Article Fourteen with respect to a series of Securities if, at any time of such payment, any amounts are due and unpaid under such series of Securities. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 1406. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Company with respect to the Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make payments pursuant to the terms of the Securities notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 1403 hereof.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 1501. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process
(a) Each of the Company and the Guarantor irrevocably consents and agrees, for the benefit of the Holders from time to time of the Securities and the Trustee, that any civil legal action, suit or proceeding against it with respect to its obligations, liabilities or any other matter arising out of or in connection with this Indenture, the Securities or any Guarantee may be brought in the Supreme Court of New York, New York County or the United States District Court for the Southern District of New York and any appellate court from either thereof and, until amounts due and to become due in respect of the Securities or any Guarantee have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any legal action, suit or proceeding for itself and in respect of its properties, assets and revenues and agrees to file such consents with such authorities as may be required to irrevocably evidence such agreement.
(b) Each of the Company and the Guarantor has irrevocably designated, appointed, and empowered CT Corporation System, acting through its office at 1633 Broadway, New York, New York 10019, as its designee, appointee
and agent to receive, accept and acknowledge for and on its behalf, and its
properties, assets and revenues, service of any and all legal process, summons,
notices and documents which may be served in any legal action, suit or
proceeding brought against the Company or the Guarantor in any United States or
state court. If for any reason such designee, appointee and agent hereunder
shall cease to be available to act as such, each of the Company and the
Guarantor agrees to designate a new designee, appointee and agent in the Borough
of Manhattan, The City of New York on the terms and for the purposes of this
Section 1501 satisfactory to the Trustee. Each of the Company and the Guarantor
further hereby irrevocably consents and agrees to the service of any and all
legal process, summons, notices and documents in any legal action, suit or
proceeding against the Company or the Guarantor by service a copy thereof upon
the relevant agent for service of process referred to in this Section 1501
(whether or not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service) or by
mailing copies thereof by registered or certified air mail, postage prepaid, to
each of the Company or the Guarantor at its address specified in or designated
pursuant to this Indenture. Each of the Company and the Guarantor agrees that
the failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of the holders of the
Securities and the Trustee, to serve any such legal process, summons, notices
and documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Company or the Guarantor or bring legal actions, suits or
proceedings against the Company or the Guarantor in such other jurisdictions,
and in such manner, as may be permitted by applicable law. Each of the Company
and the Guarantor irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Indenture brought in the Supreme Court of New York, New
York, County or the United States District Court for the Southern District of
New York and any appellate court from either thereof and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceedings brought in any such court
has been brought in an inconvenient forum.
(c) To the extent that the Company or the Guarantor may in any jurisdiction claim for itself or its assets immunity (to the extent such immunity may now or hereafter exist, whether on the grounds of sovereign immunity or otherwise) from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process (whether through service or notice or otherwise), and to the extent that in any such jurisdiction there may be attributed to itself or its assets such immunity (whether or not claimed), the Company or the Guarantor irrevocably agrees with respect to any matter arising under the Indenture for the benefit of the Holders from time to time of the Securities, not to claim, and irrevocably waives, such immunity to the full extent permitted by the laws of such jurisdiction.
(d) If for the purpose of obtaining a judgment or order in any court it is necessary to convert a sum due hereunder to the holder of any Security from U.S. dollars into another currency, each of the Company or the Guarantor has agreed, and each holder by holding such Security will be deemed to have agreed, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures such Holder could purchase U.S. dollars with such other currency in
The City of New York on the Business Day preceding the day on which final judgment is given.
(e) The obligation of the Company or the Guarantor in respect of any sum payable by it to the holder of a Security shall, notwithstanding any judgment or order in a currency (the "judgment currency") other than U.S. dollars, to be discharged only to the extent that on the Business Day following receipt by the Holder of such security of any sum, adjudged to be so due in the judgment currency, the Holder of such Security may in accordance with normal banking procedures purchase U.S. dollars with the judgment currency; if the amount of the U.S. dollars so purchased is less than the sum originally due to the holder of such Security in the judgment currency (determined in the manner set forth in the preceding paragraph), each of the Company or the Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Holder of such Security against such loss, and if the amount of the U.S. dollars so purchased exceeds the sum originally due to the Holder of such Security, such Holder agrees to remit to the Company or the Guarantor such excess, provided that such Holder shall have no obligation to remit any such excess as long as the Company or the Guarantor shall have failed to pay such Holder any obligations due and payable under the Security, in which case such excess may be applied to such obligations of the Company or the Guarantor under such Security in accordance with the terms thereof. The foregoing indemnity shall constitute a separate and independent obligation of the Company or the Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.
SECTION 1502. Counterparts
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
YORKSHIRE POWER FINANCE LIMITED
YORKSHIRE POWER GROUP LIMITED
THE BANK OF NEW YORK, as
Trustee, Principal Paying Agent,
Security Registrar and Transfer Agent
BANQUE GENERALE DU LUXEMBOURG S.A.,
as Paying Agent and Transfer Agent
YORKSHIRE POWER FINANCE LIMITED, as Issuer
and
YORKSHIRE POWER GROUP LIMITED, as Guarantor
and
THE BANK OF NEW YORK,
As Trustee, Principal Paying Agent,
Registrar and Transfer Agent
and
BANQUE GENERALE DU LUXEMBOURG S.A.,
As Paying Agent and Transfer Agent
6.496% Series A Senior Notes due 2008
6.496% Series B Senior Notes due 2008
Second Supplemental Indenture
Dated as of February 25, 1998
SECOND SUPPLEMENTAL INDENTURE, dated as of February 25, 1998 (this "Second Supplemental Indenture"), among YORKSHIRE POWER FINANCE LIMITED, a limited liability company organized under the laws of the Cayman Islands, an issuer (the "Company"), YORKSHIRE POWER GROUP LIMITED, a private limited company incorporated under the laws of England and Wales, as guarantor (the "Guarantor"), THE BANK OF NEW YORK, as Trustee, Principal Paying Agent, Registrar and Transfer Agent under the Original Indenture referred to below (the "Trustee") and BANQUE GENERALE DU LUXEMBOURG S.A., as Paying and Transfer Agent under the Original Indenture.
WITNESSETH:
WHEREAS, each of the Company or the Guarantor has heretofore executed and delivered to the Trustee an indenture dated as of February 1, 1998, as supplemented (hereinafter called the "Original Indenture"), to provide for the issuance from time to time of certain of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), the form and terms of which are to be established as set forth in Sections 201 and 301 of the Original Indenture;
WHEREAS, Section 901 of the Original Indenture provides, among other things, that the Company or the Guarantor and the Trustee may enter into indentures supplemental to the Original Indenture for, among other things, the purpose of establishing the form and terms of the Securities of any series as permitted by Sections 201 and 301 of the Original Indenture and of appointing an Authenticating Agent with respect to the Securities of any series;
WHEREAS, the Company desires to create a series of the Securities in an aggregate principal amount of $300,000,000 to be designated the "6.496% Series A Senior Notes due 2008" and a series of Securities in an aggregate principal amount of $300,000,000 to be designated the "6.496% Series B Senior Notes due 2008", and all action on the part of the Company necessary to authorize the issuance of these Securities under the Original Indenture and this Second Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make such Securities, when executed by the Company and authenticated and delivered by the Trustee as in the Original Indenture provided, the valid and binding obligations of the Company and to constitute these presents a valid and binding supplemental indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance and purchase of the 2008 Securities (hereinafter defined) by the holders thereof and of the acceptance of this trust by the Trustee, each of the Company or the Guarantor covenants and agrees with the Trustee, for the equal benefit of holders of the 2008 Securities, as follows:
ARTICLE ONE
Definitions
The use of the terms and expressions herein is in accordance with the definitions, uses and constructions contained in the Original Indenture and the forms of Securities attached hereto as Exhibits A and B, respectively. In addition, for all purposes of this Second Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise expressly requires, the following terms shall have the respective meanings assigned to them as follows and shall be construed as if defined in Article One of the Original Indenture:
"Book-Entry Depositary" means The Bank of New York as designated by the Company in the Deposit Agreement until a successor shall have become such pursuant to the applicable provisions of the Deposit Agreement, and thereafter "Book-Entry Depositary" shall mean such successor Book-Entry Depositary or its nominee or the custodian of either.
"Definitive Registered 2008 Securities" means 2008 Securities substantially in the form of Exhibit B to this Second Supplemental Indenture.
"Deposit Agreement" means the Deposit Agreement, dated as of February 1, 1998, among the Company, the Book-Entry Depositary and the holder and beneficial owners from time to time of interests in the Book-Entry Interests issued thereunder.
"DTC" means The Depository Trust Company, New York, New York, or its successors.
"Exchange Offer" means the offer that may be made pursuant to the Registration Rights Agreement by the Company to exchange Series B Securities and the Guarantee of the Series B Securities for the Series A Securities and the Guarantee of the Series A Securities.
"Global 2008 Securities" means Global Bearer Securities, evidencing the 2008 Securities, issued to the Book-Entry Depositary substantially in the form of Exhibit A to this Second Supplemental Indenture.
"Registration Rights Agreement" means the registration Rights Agreement, dated February 25, 1998 among the Company, the Guarantor and the Initial Purchasers named therein as such agreement may be amended, modified or supplemented from times to time.
"Regulation S" means Regulation S under the Securities Act, as such Regulation may be amended from time to time, or under any similar rules or regulations hereafter adopted by the Commission.
"Restricted Securities Legend" means a legend substantially in the form of the legend contained in the form of Global 2008 Securities set forth in Exhibit A hereto.
"Restricted Security" means 2008 Securities that bear or are required to bear the Restricted Securities Legend.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be amended from time to time, or under any similar rules or regulation hereafter adopted by the Commission.
"Series A Securities" means the Company's 6.496% Series A
Senior Notes due 2008, as authenticated and issued under this Indenture.
"Series B Securities" means the Company's 6.496% Series B
Senior Notes due 2008, as authenticated and issued under this Indenture.
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"2008 Securities" means, collectively, the Series A Securities and the Series B Securities.
ARTICLE TWO
Terms and Issuance of the 2008 Securities
SECTION 201. Issue of Securities. A Series of Securities which shall be designated the "6.496% Series A Senior Notes due 2008" and a series of Securities shall be designated the "6.496% Series B Senior Notes due 2008" each shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of the Original Indenture and this Second Supplemental Indenture (including the forms of 2008 Securities set forth in Exhibits A and B hereto). The aggregate principal amount of the 2008 Securities which may be authenticated and delivered under the Second Supplemental Indenture shall not, except as permitted by the provisions of the Original Indenture, exceed $300,000,000.
SECTION 202. Form of 2008 Securities; Incorporation of Terms. The forms of the Global 2008 Securities and the Definitive Registered 2008 Securities shall be substantially in the forms of Exhibits A and B, respectively, attached hereto, the terms of which are herein incorporated by reference and which are part of this Second Supplemental Indenture. Series A Securities offered and sold in their initial distribution in reliance on Rule 144A shall initially be issued in the form of one or more separate Global 2008 Securities (each, a "Rule 144A Global Security"). Series A Securities offered and sold in their initial distribution in reliance on Regulation S shall initially be issued in the form of one or more separate Global 2008 Securities (each, a "Regulation S Global Security").
SECTION 203. Limitation on Liens. The covenant provided by
Section 1004 of the Original Indenture shall be applicable to the 2008
Securities.
SECTION 204. Limitation on Sale and Lease-Back Transactions. The covenant provided by Section 1005 of the Original Indenture shall be applicable to the 2008 Securities.
SECTION 205. Guarantee. The Guarantee provided by Article Fourteen of the Original Indenture shall be applicable to the 2008 Securities.
SECTION 206. Place of Payment. The Place of Payment in respect of the 2008 Securities will be in The City of New York, initially the Corporate Trust Office of The Bank of New York, and, for so long as the 2008 Securities are listed on the Luxembourg Stock Exchange, in Luxembourg, initially the corporate trust office of Banque Generale du Luxemborg S.A., which at the date hereof, is located at 50 Avenue J.F. Kennedy, L-2951 Luxembourg.
SECTION 207. Issuance of Global 2008 Securities. Each of the Series A Securities and the Series B Securities shall be issued as one or more Global 2008 Securities and delivered by the Trustee to the Book-Entry Depositary, as the Holder thereof, of a nominee or custodian therefore, to be held by the Book-Entry Depositary pursuant to the Deposit Agreement. Definitive Registered 2008 Securities shall only be issued by the Company in exchange for the Global 2008 Securities in the circumstances set forth in the Global 2008 Securities.
SECTION 208. Transfer Restrictions; Exchange Offer.
(a) Transfer Restrictions. Except as permitted by subsection
(b) of this Section 208 or as otherwise determined by the Company as set forth
below in this subsection (a), the 2008 Securities shall bear the Restricted
Securities Legend and may not be transferred except in compliance with the
Restricted Securities Legend unless otherwise determined by the Company in
accordance with applicable law. Unless with respect to the whole or any portion
of any Restricted Security the Company determines otherwise in accordance with
applicable law, the Restricted Securities Legend borne by such Restricted
Security shall be removed by the Company (i) in the case of any Rule 144A Global
Security or any Definitive Registered 2008 Security issued in exchange for an
interest therein, upon presentation to the Trustee of such Restricted Security
by the Holder thereof at any time on or after the occurrence of the "Resale
Restriction Termination Date" on such Legend and (ii) in the case of any
Regulation S Global Security or any Definitive Registered 2008 Security issued
in exchange for an interest therein, upon presentation to the Trustee of such
Restricted Security by the Holder thereof at any time on or after the expiration
of the "restricted period" (within the meaning of Regulation S) with respect to
any such Security shall have occurred.
If a holder of a beneficial interest in a Rule 144A Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Regulation S Global Security, or if a holder of a beneficial interest in a Regulation S Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Rule 144A Global Security, upon receipt of the Trustee of (A) written instructions given in accordance with the rules and procedures of DTC (together with, as applicable, the rules and procedures of the Euroclear System and Cedel Bank, the "Applicable Procedures") from the applicable Participant directing the Book-Entry Depositary to cause to be credited to another account of a
Participant a beneficial interest in such Regulation S Global Security or Rule 144A Global Security (as the case may be) equal to that of the beneficial interest in such Rule 144A Global Security or Regulation S Global Security (as the case may be) to be so transferred, (B) a written order given in accordance with the Applicable Procedures containing information regarding such other account, as well as the account of The Euroclear System or Cedel Bank ( as the case may be) for which such other account is held, to be credited with, and the account of such applicable Participant to be debited for, such beneficial interest and (C) a certificate satisfactory to the Company, the Guarantor and the Trustee, as to such transfer's compliance with the registration requirements of the Securities Act, given by the transferor of such beneficial interest, the Trustee shall (1) reduce or increase (as the case may be) the principal amount of such Rule 144A Global Security, and increase or reduce (as the case may be) the principal amount of such Regulation S Global Security, in each case by an amount equal to the principal amount of the beneficial interest in such Rule 144A Global Security or Regulation S Global Security (as the case may be) to be so transferred, as evidenced by appropriate endorsement on Schedule A to each such Global Security, (2) instruct the Book-Entry Depositary to make a corresponding reduction or increase (as the case may be) to the Book-Entry Interests relating to such Global Security and (3) cause the Book-Entry Depositary to instruct DTC to credit and debit such beneficial interests to the respective accounts specified in the instructions referred to above.
(b) Exchange of Series A Securities for Series B Securities. The Company shall issue and the Trustee shall authenticate Series B Securities in exchange for Series A Securities accepted for exchange in the Exchange Offer as follows:
The Company shall present the Trustee with an Officers' Certificate certifying (i) that, upon issuance of the Series B Securities, the transactions contemplated by the Exchange Offer have been consummated and (ii) the aggregate principal amount of Series A Securities properly tendered in the Exchange Offer.
The Trustee, upon receipt of (i) such Officer's Certificate,
(ii) an Opinion of Counsel (A) to the effect that the Series B Securities have
been registered under the Securities Act and the Indenture has been qualified
under the Trust Indenture Act and (B) with respect to the matters set forth in
Section 3(m) of the Registration Rights Agreement and (iii) a Company Order,
shall (A) authenticate 2008 Global Securities representing the Series B
Securities in an aggregate principal amount equal to the aggregate principal
amount of Series A Securities represented by a 2008 Global Security indicated in
such Officers' Certificate has having been properly tendered with terms
substantially identical to such Series A Securities, and substantially in the
form of Exhibit A hereto, except that such Series B Securities (x) shall not
contain the Restricted Securities Legend, and (y) will not provide for any
increase in the interest rate thereon under the circumstances set forth in such
Series A Securities and (B) deliver such Global 2008 Securities representing
such Series B Securities to the Book-Entry Depositary in exchange for such
Global 2008 Security representing such Series A Securities pursuant to the terms
of the Deposit Agreement.
Notwithstanding anything, contained in the Indenture, the Series A Securities and the Series B Securities will vote and consent together on all matters as one class and will not have the right to vote or consent as a separate class in any matter.
SECTION 209. Regular Record Date for the 2008 Securities. The Regular Record Date for the 2008 Securities shall be 15 calendar days immediately prior to each Interest Payment Date.
ARTICLE THREE
Authenticating Agent; Book-Entry Depositary
SECTION 301. Authenticating Agent; Book-Entry Depositary. The Bank of New York, a New York banking corporation, and its successors are hereby appointed Authenticating Agent and Book-Entry Depositary with respect to the 2008 Securities.
ARTICLE FOUR
Miscellaneous
SECTION 401. Execution of Supplemental Indenture. This Second Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture and, as provided in the Original Indenture, this Second Supplemental Indenture forms a part thereof.
SECTION 402. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Second Supplemental Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
SECTION 403. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 404. Successors and Assigns. All Covenants and agreements in this Second Supplemental Indenture by each of the Company or the Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 405. Separability Clause. In case any provision in this Second Supplemental Indenture or in the 2008 Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 406. Benefits of Second Supplemental Indenture. Nothing in this Second Supplemental Indenture or in the 2008 Securities, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Second Supplemental Indentures.
SECTION 407. Execution and Counterparts. This Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereof have caused this Second Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
YORKSHIRE POWER FINANCE LIMITED
YORKSHIRE POWER GROUP LIMITED
THE BANK OF NEW YORK,
As Trustee, Principal Paying Agent,
Security Registrar and Transfer Agent
BANQUE GENERALE DU LUXEMBOURG S.A.,
As Paying Agent and Transfer Agent
EXHIBIT A
[FORM OF FACE OF GLOBAL 2008 SECURITY]
[If the Global 2008 Security is a Restricted
Security, insert the following legend - THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH YORKSHIRE POWER GROUP
LIMITED (THE "GUARANTOR"), YORKSHIRE POWER FINANCE LIMITED (THE "ISSUER") OR ANY
AFFILIATE OF THE GUARANTOR OR THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY
RULE 144(k), OR ANY SUCCESSORY PROVISION THEREOF, UNDER THE SECURITIES ACT) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE GUARANTOR OR THE ISSUER,
(B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO THE OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE GUARANTOR'S, THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A CERTIFICATE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE
AS TO COMPLIANCE WITH CERTAIN CONDITIONS TO TRANSFER, THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE OR SUCH EARLIER TIME AS DETERMINED BY THE ISSUER IN ACCORDANCE WITH
APPLICABLE LAW.
EACH HOLDER BY ITS ACCEPTANCE OF THIS SECURITY SHALL BE DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT.]
THIS SECURITY IS A GLOBAL BEARER SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS GLOBAL BEARER SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR EXCHANGE OR PAYMENT, AND ANY DEFINITIVE REGISTERED SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
YORKSHIRE POWER FINANCE LIMITED
6.496% [Series A] [Series B] Senior Notes due 2008
No. _____________ $_____________________
CUSIP No._____________
YORKSHIRE POWER FINANCE LIMITED, a limited liability company
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incorporated under the laws of the Cayman Islands (herein called "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the bearer upon
surrender hereof, the principal sum of _____________ Dollars* on ______________,
and to pay interest thereon from _______________, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on ___________________ and ____________________ in each year
commencing _______________, 199_ at the rate per annum provided in the title
hereof, until the principal hereto is paid or made available for payment;
[provided, however, that if an Event Date (as defined in the Registration Rights
Agreement) occurs, interest will accrue on this Security at a rate of 6.746% per
annum from and including the day following the applicable Event Date to and
including the date on which the event that has resulted in Additional Interest
(as defined in the Registration Rights Agreement) being required to be paid has
been cured pursuant to the terms of the Registration Rights Agreement.] The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the bearer on such
Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the bearer on such Interest Payment Date and may be paid to the bearer hereof at the time of payment of such Defaulted Interest or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
All payments in respect of this Security and all payments made pursuant to the Guarantee of this Security shall be made in immediately available funds at or through the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, and for so long as this Security shall be listed on the Luxembourg Stock Exchange, in Luxembourg, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debt.
All payments of principal of, and premium, if any, and interest in respect of this Security and all payments made pursuant to the Guarantee of this Security shall be made free and clear of, and without withholding or deduction for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within a Taxing Jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is required by law, in the event of any such withholding or deduction, the Company shall pay to the Holder such additional amounts ("Additional Amounts") as will result in the payment to such Holder of the amount that would otherwise have been due to such Holder in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such Gross-Up Taxes in respect of this Security or the Guarantee of this Security by reason of such Holder or beneficial owner having some connection with the relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Taxing Jurisdiction) other than the mere holding of this Security or the receipt of principal of, and premium, if any, and interest in respect thereof or in respect of the Guarantee of this Security;
(b) to, or to a Person on behalf of, a Holder who represents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in a Taxing Jurisdiction;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of nonresidence or similar claim for exemption to the relevant tax authority; or
(e) to, or to a Person on behalf of, a Holder of a definitive Registered Security issued pursuant to the request of owners of interests representing a majority in outstanding principal amount in the Book-Entry Interest following and during the continuance of an Event of Default if such Holder (or any predecessor Holder) was one of such owners requesting that definitive Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (e) above. If the Company or the Guarantor, as applicable, shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company or the Guarantor, as applicable, will inform such Holder promptly after making such determination setting forth the reason(s) therefore.
"Relevant Date" means whichever is the later of (i) the day on which such payment first becomes due and (ii) if the full amount payable has not been received in The City of New York by the Trustee or the Holder on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holder in accordance with this Indenture.
References to principal of, and premium or interest in respect of, this Security or payments under the Guarantee of this Security shall be deemed to include to any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of Gross-Up Taxes, Copies of such receipts shall be made available to the Holder of this Security upon request.
So long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxembourg Wort).
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an authorized signatory of the Company.
YORKSHIRE POWER FINANCE LIMITED
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
Dated:
[Form of Reverse Security]
YORKSHIRE POWER FINANCE LIMITED
6.496% [Series A] [Series B] Senior Note due 2008
This security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture dated as of February 1, 1998 (herein called the "Original Indenture"), among the Company, Yorkshire Power Group Limited, as guarantor (the "Guarantor"), The Bank of New York, as trustee, principal paying agent, registrar and transfer agent (herein called the "Trustee", which term includes any successor trustee under the Indenture), and Banque Generale du Luxembourg, S.A., as paying and transfer agent (the "Paying and Transfer Agent"), as supplemented by the Second Supplemental Indenture, dated as of February 25, 1998 (together with the Original Indenture and any other supplements thereto, the "Indenture"), among the Company, the Guarantor, the Trustee and the Paying and Transfer Agent to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee, the Paying and Transfer Agent and the Holders of the Securities and of the terms upon which the Securities are, and are to be authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $300,000,000.
The Securities of this series will be redeemable in whole or
in part, at the option of the Company at any time, at a redemption price equal
to the greater of (i) 100% of the principal amount of the Securities of this
series being redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Securities of this series
being redeemed (excluding the portion of any such interest accrued to the date
of redemption) discounted (for the purpose of determining present value) to the
date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at a discount rate equal to the Treasury Yield plus twenty
(20) basis points, plus, in either case, accrued interest thereon to the date of
redemption.
"Treasury Yield" means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of such Securities of this series to be redeemed that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day preceding such redemption date, as set forth in the daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for US Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such business day, the Reference Treasury Dealer Quotation for such redemption date.
"Independent Investment Banker" means an independent investment banking institution of national standing appointed by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding such redemption date).
"Reference Treasury Dealer" means a primary United States government securities dealer in New York City appointed by the Company and reasonably acceptable to the Trustee.
Notice of redemption shall be given as provided in the Indenture not less than 30 days nor more than 60 days prior to the date fixed for redemption.
If fewer than all the Securities of this series are to be redeemed, selection of Securities of this series for redemption will be made by the Trustee in any manner the Trustee deems fair and appropriate and that complies with applicable legal and securities exchange requirements.
Unless the Company defaults in payment of the redemption price, from and after the redemption date, the Securities of this series or portions thereof call for redemption will cease to bear interest, and the Holders thereof will have no right in respect to such Securities of this series except the right to receive the redemption price thereof.
In the event of redemption of this Security in part only, a new Security of this series and of like tenor for the unredeemed portion hereof will be issued to the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
In the Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to Securities of any series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to Securities of this series have been cured or waived (other than the non-payment of principal of the
Securities which has become due solely by reason of such declaration of acceleration) then such declaration of acceleration and its consequences shall be automatically annulled and rescinded.
The Securities of this Series are subject to redemption in
whole but not in part upon not less than 30 nor more than 60 days notice given
as provided in the Indenture, at a price equal to the outstanding principal
amount thereof, together with Additional Amounts, if any, and accrued interest,
if any, to the Redemption Date if, (a) the Company or the Guarantor satisfies
the Trustee prior to the giving of such notice that it has or will become
obligated to pay Additional Amounts as a result of either (i) any change in, or
amendment to, the laws or regulations of a Taxing Jurisdiction, or any change in
the application or interpretation of such laws or regulations, which change or
amendment becomes effective on or after February 19, 1998, or (ii) the issuance
of Definitive Registered 2008 Securities pursuant to any of clauses (a), (b), or
(d) of the third following paragraph and (b) such obligation cannot be avoided
by the Company or the Guarantor taking reasonable measures available to it,
subject, as provided in the Indenture, to the delivery by the Company or the
Guarantor of an Officers' Certificate stating that such obligation to pay
Additional Amounts cannot be avoided by the Company or the Guarantor taking
reasonable measures available to it.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as a class). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issues upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not such consent or waiver is made upon this Security.
No reference herein in the Indentures and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and premium, if any, and interest in respect of this Security and all payments made pursuant to the Guarantee of this Security at the times, place, and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable, in whole or in the case of clause (d) below, in part as provided in the Indenture, for Definitive Registered 2008 Securities registered in the names of Persons other than the Book-Entry Depositary with respect to such series or its nominee only as provided in this paragraph. This Security shall be so exchangeable if (a) DTC notifies the Company and the Book-Entry Depositary that it is unwilling or unable to continue to hold the Book-Entry Interests or at any time ceases to be a "clearing agency" registered as such under the Exchange Act and in either case, a successor is not appointed by the Company within 120 days, (b) the Book-Entry Depositary for the Securities of this series notifies the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect
to this Security and no successor is appointed within 120 days, (c) the Company
executes and delivers to the Trustee an Officers' Certificate providing that
this Security shall be so exchangeable, (d) there shall have occurred and be
continuing an Event of Default with respect to the Securities of this series or
(e) while this Security is subject to the transfer restrictions set forth in the
Restricted Securities Legend hereon, the Book-Entry Interests cease to be
eligible for DTC services because this Security is neither (i) rated in one of
the top four categories by a nationally recognized statistical rating
organization nor (ii) included within a self-regulatory organization system
approved by the Commission for the reporting of quotations and trade information
of securities eligible for trade pursuant to Rule 144A, such as the PORTAL
system. Securities so issued in exchange for this Security shall be of the same
series, having the same interest rate, if any, and maturity and having the same
terms as this Security, in authorized denominations and in the aggregate having
the same principal amount as this security and registered in such names as the
Book-Entry Depositary for this Security shall direct.
The bearer of this Security shall be treated as the owner of it for all purposes, subject to the terms of the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of is predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledge of Securities of this series and may otherwise deal with the Company, the Guarantor or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator, or Affiliate of the Company or the Guarantor under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations of their creation. Each Holder of the Securities of this series by accepting Securities this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meaning assigned to them in the Indenture.
GUARANTEE
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private limited company duly incorporated and existing under the laws of England and Wales (the "Guarantor", which term includes any successor Person under the Indenture referred to in the Security on which this notation is endorsed), hereby fully and unconditionally guarantees to the Holder of the accompanying Security issued by Yorkshire Power Finance Limited (the "Company"), pursuant to the terms of the Guarantee contained in Article Fourteen of the Indenture, the due and punctual payment of the principal of, and premium, if any, and interest in respect to this Security (and any Additional Amounts payable in respect thereof), when and as of the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of this Security and the Indenture, in case of the failure of the Company punctually to pay any such principal, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable as if such payment were made by the Company.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers.
YORKSHIRE POWER FINANCE LIMITED
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
The initial aggregate principal amount of Securities evidenced by the Certificate to which this Schedule is attached is _______________. The notations on the following table evidence decreases and increases in the aggregate amount of Securities evidenced by such Certificate.
Aggregate
Principal
Decrease in Increase in Amount of
Aggregate Aggregate Securities
Principal Principal Remaining After Notation by
Date of Amount of Amount of Such Decrease or Security
Adjustment Securities Securities Increase Registrar
----------- ----------- ----------- ----------------- ------------
----------- ----------- ----------- ----------------- ------------
|
EXHIBIT B
[FORM OF FACE OF DEFINITIVE REGISTERED 2008 SECURITY]
[If the Definitive Registered 2008 Security is a Restricted Security, insert the Restricted Securities Legend set forth in Exhibit A hereto.]
YORKSHIRE POWER FINANCE LIMITED
6.496% [Series A] [Series B] Senior Notes due 2008
No.____________ $____________________
CUSIP No.: __________
YORKSHIRE POWER FINANCE LIMITED, a limited liability company
|
incorporated under the laws of the Cayman Islands (herein called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to [name of registered owner] or its registered assigns, the principal sum of __________ Dollars on _____________, and to pay interest thereon from __________, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on __________ and __________ in each year, commencing __________ 199_, at the rate per annum provided in the title hereof, until the principal hereof is paid or made available for payment (provided, however, that if an Event Date (as defined in the Registration Rights Agreement) occurs, interest will accrue on this Security at a rate of ___% per annum from and including the day following the applicable Event Date to and including the date on which the event that has resulted in Additional Interest (as defined in the Registration Rights Agreement) being required to be paid has been cured pursuant to the terms of the Registration Rights Agreement). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth date (whether or not a Business Day) immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Person in whose name this Security (or one or more Predecessor Securities) is registered on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Securities in this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice may be required by such exchange, all as more fully provided in said Indenture.
All payments in respect to this Security and all payments made pursuant to the Guarantee of this Security shall be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City
of New York, and for so long as this Security shall be listed on the Luxembourg Stock Exchange, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debt; provided, however, that at the option of the Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
All payments of principal of, premium, if any, and interest in respect of this Security and all payments made pursuant to the Guarantee of this Security shall be made free and clear of, and without withholding or deduction for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within a Taxing Jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is required by the law. In the event of such withholding or deduction, the Company shall pay to the Holder such additional amounts ("Additional Amounts") as will result in the payment to such Holder of the amount that would otherwise have been due to such Holder in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such Gross-Up Taxes in respect of this Security or the Guarantee of this Security by reason of such Holder having some connection with the relevant Taxing Jurisdiction (including a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Taxing Jurisdiction) other than the mere holding of this Security or the receipt of principal of, premium, if any, and interest in respect thereof or in respect of the Guarantee of this Security;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payments on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in a Taxing Jurisdiction;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of nonresidence or similar claim for exemption to the relevant tax authority; or
(e) to, or to a Person on behalf of, a Holder of a definitive Registered Security issued pursuant to the request of owners of interests representing a majority in outstanding principal amount in the Book-Entry Interest following and during the continuance of an Event of Default if such Holder (or any predecessor Holder) was one of such owners requesting that definitive Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (e) above. If the Company or the Guarantor, as applicable, shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company or the Guarantor, as applicable, will inform such Holder promptly after making such determination setting forth the reason(s) therefore.
"Relevant Date" means whichever is the later of (i) the day on which such payment first becomes due and (ii) if the full amount payable has not been received in The City of New York by the Trustee or the Holder on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holder in accordance with this Indenture.
References to principal of, and premium or interest in respect of, this Security or payments under the Guarantee of this Security shall be deemed to include to any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of Gross-Up Taxes, Copies of such receipts shall be made available to the Holder of this Security upon request.
So long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxembourg Wort).
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an authorized signatory of the Company.
YORKSHIRE POWER FINANCE LIMITED
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
Dated:
[Form of Reverse of Security]
YORKSHIRE POWER FINANCE LIMITED
___% [Series A] [Series B} Senior Notes due 2008
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of February 1, 1998 (herein call the "Original Indenture"), among the Company, Yorkshire Power Group Limited, as guarantor (the "Guarantor"), The Bank of New York, as trustee, principal paying agent, registrar and transfer agent (herein call the "Trustee", which term includes any successor trustee under the Indenture), and Banque Generale du Luxembourg S.A., as paying and transfer agent (the "Paying and Transfer Agent"), as supplemented by the Second Supplemental Indenture, dated as of February 25, 1998 (together with the Original Indenture and any other supplements thereto, the "Indenture") among the Company, the Guarantor, the Trustee, and the Paying and Transfer Agent to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee, the Paying and Transfer Agent and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $300,000,000.
The Securities of this series will be redeemable in whole or
in part, at the option of the Company at any time, at a redemption price equal
to the greater of (i) 100% of the principal amount of the Securities of this
series being redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the Securities of this series
being redeemed (excluding the portion of any such interest accrued to the date
of redemption) discount (for the purpose of determining present value) to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at a discount rate equal to the Treasury Yield plus twenty
(20) basis points, plus, in either case, accrued interest to the date of
redemption.
"Treasury Yield" means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of such Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage amount) on the third Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotation for US Government Securities" or (ii) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the Reference Treasury Dealer Quotation for such redemption date.
"Independent Investment Banker" means an independent investment banking institution of national standing appointed by the Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotations" means, with respect to
the Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding such redemption date).
"Reference Treasury Dealer" means a primary US government securities dealer in New York City appointed by the Company and reasonably acceptable to the Trustee.
Notice of redemption shall be given as provided in the Indenture not less than 30 days nor more than 60 days prior to the date fixed for redemption.
If fewer than all the Securities of this series are to be redeemed, selection of Securities for redemption will be made by the Trustee in any manner the Trustee deems fair and appropriate and that complies with applicable legal and securities exchange requirements.
Unless the Company defaults in payment of the redemption price, from and after the redemption date, the Securities of this series or portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect to such Securities of this series except the right to receive the redemption price thereof.
In the event of redemption of this security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
In the Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after each declaration of acceleration with respect to Securities of any series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to Securities of this series have been cured or waived (other than the nonpayment of principal of the Securities which has become due solely by reason of such declaration of acceleration) then such declaration of acceleration and its consequences shall be automatically annulled and rescinded.
The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days' notice to the Holders of Securities by first-class mail, at a price equal to the outstanding principal amount thereof, together with Additional Amounts, if any, and accrued interest, if any, to the redemption date if (a) the Company satisfies the Trustees prior to the giving of such notice that it has or will become obligated to pay Additional Amounts as a result of either (i) any changes in, or amendments to, the laws or regulations of a Taxing Jurisdiction, or any changes in the application or interpretation of such laws or regulations, which change or amendment becomes effective on or after February 19, 1998, or (ii) the issuance of definitive Registered Securities as a result of (A) DTC having notified the Company and the Book-Entry Depositary that it was unwilling or unable to continue to hold the Book-Entry Interest or at any time ceasing to be a "clearing agency" registered as such under the Securities Exchange Act of 1934 and, in either case, a successor is not being appointed by the Company within 120 days; (B) the Book-Entry Depositary for the Securities of this series having notified the Company that it was unwilling or unable to continue as Book-Entry Depositary with respect to the Securities of this series and no successor Book-Entry Depositary having been appointed by the Company within 120 days or (C) an Event of Default with respect to the Securities of this series having occurred and being continuing and a Holder, in such circumstance, having requested in writing that a Global Bearer Security of this series be exchanged for one or more definitive Registered Securities and (b) such obligation cannot be avoided by the Company taking reasonable measures available to it, subject, as provided in the Indenture, to the delivery by the Company of an Officers Certificate that such obligation referred to in (a) cannot be avoided by the Company taking reasonable measures available to it.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as a class). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration or transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No references herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest, in respect of this Security and all payments made pursuant to the Guarantee of this Security at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal of, premium, if any, and interest, if any, on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee, and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledge of Securities of this series and may otherwise deal with the Company, its Subsidiaries or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company shall have any liability or any obligation of the Company under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities of this series by accepting a Security of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Customary abbreviations may be used in the name of the Holder of a Securities of this series or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
GUARANTEE
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a company duly incorporated and existing under the laws of England and Wales (the "Guarantor", which term includes any successor Person under the Indenture referred to in the Security on which this notation is endorsed), hereby fully and unconditionally guarantees to the Holder of the accompanying Security issued by Yorkshire Power Finance Limited (the "Company"), pursuant to the terms of the Guarantee contained in Article Fourteen of the Indenture, the due and punctual payment of the principal of, premium, if any, and interest in respect of this Security (and any Additional Amounts payable in respect thereof), when and as the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of this Security and the Indenture. In case of the failure of the Company punctually to pay any such principal, premium, if any, or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable as if such payment were made by the Company.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers.
YORKSHIRE POWER GROUP LIMITED
EXHIBIT 10.78
YORKSHIRE POWER FINANCE 2 LIMITED, AS ISSUER
AND
YORKSHIRE POWER GROUP LIMITED, AS GUARANTOR
AND
THE BANK OF NEW YORK, AS TRUSTEE,
PRINCIPAL PAYING AGENT, REGISTRAR AND TRANSFER AGENT
INDENTURE
DATED AS OF FEBRUARY 1, 2000
DEBT SECURITIES
TABLE OF CONTENTS*
Page
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
SECTION 101. Definitions.............................................1
SECTION 102. Compliance Certificates and Opinions....................9
SECTION 103. Form of Documents Delivered to Trustee.................10
SECTION 104. Acts of Holders........................................10
SECTION 105. Notices, Etc., to Trustee and Company..................13
SECTION 106. Notice to Holders; Waiver..............................13
SECTION 107. Conflict with Trust Indenture Act......................14
SECTION 108. Effect of Headings and Table of Contents...............15
SECTION 109. Successors and Assigns.................................15
SECTION 110. Separability Clause....................................15
SECTION 111. Benefits of Indenture..................................15
SECTION 112. Governing Law..........................................15
SECTION 113. Legal Holidays.........................................15
ARTICLE TWO SECURITY FORMS....................................................16
SECTION 201. Forms Generally........................................16
SECTION 202. Form of Trustee's Certificate of Authentication........16
SECTION 203. Form of Trustee's Certificate of Authentication
by an Authenticating Agent.............................17
SECTION 204. Form of Guarantee......................................17
ARTICLE THREE THE SECURITIES..................................................18
SECTION 301. Amount Unlimited; Issuable in Series...................18
SECTION 302. Denominations..........................................20
SECTION 303. Execution, Authentication, Delivery and Dating.........20
SECTION 304. Transfer Agent and Paying Agent........................22
SECTION 305. Temporary Securities...................................22
SECTION 306. Registration, Registration of Transfer and Exchange....23
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.......24
SECTION 308. Payment of Interest; Interest Rights Reserved..........25
SECTION 309. Persons Deemed Owners..................................27
SECTION 310. Cancellation...........................................27
--------------------------
*NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
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SECTION 311. Computation of Interest...............................27
SECTION 312. Global Securities.....................................28
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................28
SECTION 401. Satisfaction and Discharge of Indenture...............28
SECTION 402. Application of Trust Money............................30
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of any Series..............................31
ARTICLE FIVE REMEDIES.........................................................32
SECTION 501. Events of Default.....................................32
SECTION 502. Acceleration of Maturity; Rescission and Annulment....33
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................34
SECTION 504. Trustee May File Proofs of Claim......................35
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.........................................35
SECTION 506. Application of Money Collected........................36
SECTION 507. Limitation on Suits...................................36
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.......................37
SECTION 509. Restoration of Rights and Remedies....................37
SECTION 510. Rights and Remedies Cumulative........................37
SECTION 511. Delay or Omission Not Waiver..........................38
SECTION 512. Control by Holders....................................38
SECTION 513. Waiver of Past Defaults...............................38
SECTION 514. Undertaking for Costs.................................39
ARTICLE SIX THE TRUSTEE.......................................................39
SECTION 601. Certain Duties and Responsibilities...................39
SECTION 602. Notice of Defaults....................................40
SECTION 603. Certain Rights of Trustee.............................41
SECTION 604. Not Responsible for Recitals or Issuance of
Securities............................................42
SECTION 605. May Hold Securities...................................42
SECTION 606. Money Held in Trust...................................42
SECTION 607. Compensation and Reimbursement........................42
SECTION 608. Disqualification; Conflicting Interests...............43
SECTION 609. Corporate Trustee Required; Eligibility...............43
SECTION 610. Resignation and Removal; Appointment of Successor
Trustee...............................................43
SECTION 611. Acceptance of Appointment by Successor................44
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business..............................................45
SECTION 613. Preferential Collecting of Claims Against Company.....46
SECTION 614. Authenticating Agents.................................49
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............51
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders............................................51
SECTION 702. Preservation of Information; Communications to
Holders...............................................51
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SECTION 703. Certain Rights of Trustee.............................41
SECTION 704. Not Responsible for Recitals or Issuance of
Securities............................................42
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE................54
SECTION 801. Company or Guarantor May Consolidate Etc., Only on
Certain Terms.........................................54
SECTION 802. Successor Corporation to be Substituted...............55
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................55
SECTION 901. Supplemental Indentures without Consent of Holders....55
SECTION 902. Supplemental Indentures with Consent of Holders.......56
SECTION 903. Execution of Supplemental Indentures..................57
SECTION 904. Effect of Supplemental Indentures.....................57
SECTION 905. Conformity with Trust Indenture Act...................58
SECTION 906. Reference in Securities to Supplemental Indentures....58
ARTICLE TEN COVENANTS.........................................................58
SECTION 1001. Payment of Principal, Premium, if any, and Interest...58
SECTION 1002. Maintenance of Office or Agency.......................58
SECTION 1003. Money for Securities Payments to Be Held in Trust.....59
SECTION 1004. Limitation on Liens...................................60
SECTION 1005. Limitation on Sale and Lease-Back Transactions........63
SECTION 1006. Statement by Officers as to Default...................63
SECTION 1007. Waiver of Certain Covenants...........................64
SECTION 1008. Further Assurances....................................64
SECTION 1009. Payment of Additional Amounts.........................64
SECTION 1010. Copies Available to Holders...........................66
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................66
SECTION 1101. Applicability of Article..............................66
SECTION 1102. Election to Redeem; Notice to Trustee.................66
SECTION 1103. Selection by Trustee of Securities to be Redeemed.....66
SECTION 1104. Notice of Redemption..................................67
SECTION 1105. Deposit of Redemption Price...........................67
SECTION 1106. Securities Payable on Redemption Date.................68
SECTION 1107. Securities Redeemed in Part...........................68
SECTION 1108. Optional Redemption in the Event of Change
in Taxing Jurisdiction Tax Treatment..................69
ARTICLE TWELVE SINKING FUNDS..................................................69
SECTION 1201. Applicability of Article..............................69
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.70
SECTION 1203. Redemption of Securities for Sinking Fund.............70
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ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES............................71
SECTION 1301. Purposes of Meetings..................................71
SECTION 1302. Place of Meetings.....................................71
SECTION 1303. Voting at Meetings....................................72
SECTION 1304. Voting Rights, Conduct and Adjournment................72
SECTION 1305. Revocation of Consent by Holders......................73
ARTICLE FOURTEEN GUARANTEE OF SECURITIES......................................73
SECTION 1401. Applicability of Article; Unconditional Guarantee.....73
SECTION 1402. Waiver of Notice and Demand...........................74
SECTION 1403. Guarantor Obligations Not Affected....................74
SECTION 1404. Execution of Guarantee................................75
SECTION 1405. Subrogation...........................................76
SECTION 1406. Independent Obligations...............................76
ARTICLE FIFTEEN MISCELLANEOUS.................................................76
SECTION 1501. Consent to Jurisdiction; Appointment of Agent
to Accept Service of Process; Etc.....................76
SECTION 1502. Counterparts..........................................78
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INDENTURE, dated as of February 1, 2000, among YORKSHIRE POWER FINANCE 2 LIMITED, a limited liability company organized under the laws of the Cayman Islands, as issuer (the "Company"), having its registered office at P.O. Box 309, George Town, Grand Cayman, Cayman Islands, British West Indies, YORKSHIRE POWER GROUP LIMITED, a private limited company incorporated under the laws of England and Wales, having its registered office at Wetherby Road, Scarcroft, Leeds, England, as guarantor (the "Guarantor"), and THE BANK OF NEW YORK, as trustee, principal paying agent, registrar and transfer agent (the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of certain of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities") to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture, all indentures supplemental hereto and any document or instrument delivered pursuant to the provisions hereof, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the respective meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States and, except as otherwise herein expressly provided, the term "generally accepted accounting principles", with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104. "Additional Amounts" has the meaning specified in
Section 1009.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling", and "controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, in respect of a Sale and Lease-Back Transaction, as at the time of determination, the present value (discounted at the rate borne by the applicable series of Securities) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Lease-Back Transaction (including any period for which such lease has been extended).
"Authenticating Agent" means any Person authorized to authenticate and deliver Securities on behalf of the Trustee pursuant to Section 614.
"Bearer Security" means any Security that is payable to bearer.
"Board of Directors" means either the board of directors of the Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by a Director of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
"Book-Entry Depositary" means, with respect to the Securities
of any series issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Book-Entry Depositary (or a nominee
thereof) by the Company pursuant to Section 301, and, if so provided pursuant to
Section 301 with respect to the Securities of a series, any successor to such
Person. If at any time there is more than one such Person, "Book-Entry
Depositary" shall mean, with respect to any series of Securities, the qualifying
entity which has been appointed with respect to the Securities of that series.
"Book-Entry Interests" means certificateless depositary interests to be issued by the Book-Entry Depositary to DTC representing in the aggregate a 100% beneficial interest in a Global Bearer Security.
"Business Day", when used with respect to the Place of Payment of the Securities of any series, means each day which is not a Saturday, a Sunday or a day on which banking institutions in any Place of Payment for the Securities of that series are authorized or obligated by law to remain closed.
"Commission" means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor company shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor company.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by any Director and by any other Director or the Treasurer, the Secretary, any Assistant Treasurer, any Assistant Secretary or any other officer so authorized and delivered to the Trustee.
"Consolidated Net Tangible Assets" shall mean the total of all assets (including revaluations thereof as a result of commercial appraisals, price level restatement or otherwise) appearing on a consolidated balance sheet of the Guarantor, net of applicable reserves and deductions, but excluding goodwill, trade names, trademarks, patents, unamortized debt discount and all other like intangible assets (which term shall not be construed to include such revaluations), less the aggregate of the consolidated current liabilities of the Guarantor appearing on such balance sheet.
"Corporate Trust Office" means the principal office of the Trustee in The City of New York, at which at any particular time its corporate trust business shall be administered, which at the date hereof is 101 Barclay Street, New York, New York, 10286.
"corporation" includes corporations, associations, companies, limited liability companies, and business trusts.
"Debt" has the meaning specified in Section 1004.
"default" for purposes of Section 601 of this Indenture is defined to mean an "Event of Default" as specified in Section 501 hereof, and for purposes of Section 310(b) of the Trust Indenture Act, "default" shall mean an "Event of Default" as specified in Section 501 hereof but exclusive of any period of grace or requirement of notice.
"Defaulted Interest" has the meaning specified in Section 308.
"Deposit Agreement" means any deposit agreement among the Company, a Book-Entry Depositary and the holders and beneficial owners from time to time of interests in the Book-Entry Interests.
"Director" means any member of the Board of Directors at the time of determination.
"discharged" means, with respect to the Securities of any series, the discharge of the entire indebtedness represented by, and obligations of the Company under, the Securities of such series and the satisfaction of all the obligations of the Company under this Indenture relating to the Securities of such series, except (A) the rights of Holders of the Securities of such series to receive, from the trust fund described in Section 403 hereof, payment of the principal of, premium, if any, and interest, if any, on the Securities of such series when such payments are due, (B) the Company's obligations with respect to the Securities of such series with respect to registration, transfer, exchange and maintenance of a Place of Payment and (C) the rights, powers, trusts, duties, protections and immunities of the Trustee under this Indenture.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debt in the United States.
"DTC" means The Depository Trust Company (or a nominee thereof) or its successors.
"Eligible Jurisdiction" means the jurisdiction in which the Issuer and the Guarantor are then incorporated.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934, as amended.
"Global Bearer Security" means a Bearer Security, evidencing all or part of a series of Securities, issued to the Book-Entry Depositary for such series.
"Global Registered Security" means a Registered Security, evidencing all or part of a series of Securities, issued to the Book-Entry Depository for such series.
"Global Security" means a Global Registered Security or a Global Bearer Security.
"Gross-Up Taxes" has the meaning specified in Section 1009.
"Guarantee" means the guarantee set forth in Article Fourteen by the Guarantor of any Security of any series authenticated and delivered pursuant to this Indenture either (i) if specified, as contemplated by Section 301, to be applicable to Securities of such series and not endorsed on such Securities pursuant to Article Fourteen hereof, or (ii) in all other cases, endorsed on such Securities.
"Guarantor" means the Person named as the "Guarantor" in the first paragraph of this instrument, until a successor company shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor company.
"Holder" means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Global Bearer Security, the Book-Entry Depositary therefor.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by a Board Resolution and an Officers' Certificate issued pursuant thereto or by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301.
"Indirect Participant" means a Person that holds an interest in the Book-Entry interests through a Participant.
"Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
"Letter of Representations" means, with respect to the Securities of any series, the letter of representations from the Company and the Trustee to DTC with respect to the Securities of that series that are represented by Global Registered Securities issued to DTC or the letter of representations from the Company and the Book-Entry Depositary to DTC with respect to the Securities of that series that are represented by Global Bearer Securities issued to such Book-Entry Depositary.
"Lien" means any mortgage, lien, pledge, security interest or other encumbrance; provided, however, that the term "Lien" shall not mean any easements, rights-of-way, restrictions and other similar encumbrances and encumbrances consisting of zoning restrictions, leases, subleases, licenses, sublicenses, restrictions on the use of property or defects in title thereto.
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by any Director or the Treasurer, the Secretary, any Assistant Treasurer, any Assistant Secretary or any other officer of the Company so authorized and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who, unless otherwise required by the Trust Indenture Act, may be an employee of, or regular counsel for, the Company, or may be other counsel reasonably acceptable to the Trustee.
"Optional Definitive Security Request" has the meaning specified in Section 1009(e).
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities of any series, means, as of the date of determination, all Securities of such series theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption money or U.S. Government Obligations or U.K. Government Obligations, as applicable, in the necessary amount have been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to the terms hereof or thereof or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to Section 306 of this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, and (b) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned as described in clause (b) above which have been pledged in
good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
"Participant" means a Person that has an account with DTC.
"Paying Agent" means any Person authorized by the Company to pay the principal of, premium, if any, or interest on any Securities on behalf of the Company hereunder, including, without limitation, the Principal Paying Agent.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of, premium, if any, and interest, if any, on the Securities of that series are payable as specified in or as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purpose of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen security.
"Principal Paying Agent" means The Bank of New York until a successor Principal Paying Agent shall have become such pursuant to the applicable provisions of this Indenture and, thereafter, "Principal Paying Agent" shall mean such successor Principal Paying Agent.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture, exclusive of accrued and unpaid interest.
"Registered Security" means any Security that is payable to a registered owner or registered assigns thereof as registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
"Relevant Date" for any payment made with respect to the Securities of any series means whichever is the later of (i) the date on which the relevant payment first becomes due and (ii) if the full amount payable has not been received in The City of New York by the Book-Entry Depositary or the
Trustee on or prior to such due date, the date on which, the full amount payable having been so received, notice to that effect shall have been given to the Holders in accordance with this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any officer within the Corporate Trust Office, including any vice president, any managing director, the secretary, any assistant vice president, any assistant secretary, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Sale and Lease-Back Transaction" has the meaning specified in
Section 1005.
"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
"Securities Act" means the United States Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 306.
"Significant Subsidiary" means, at any particular time, any Subsidiary whose gross assets or gross revenues (having regard to the Guarantor's direct and/or indirect beneficial interest in the shares, or the like, of that Subsidiary) represent at least 25% of the consolidated gross assets or consolidated gross revenues, as the case may be, of the Guarantor.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Guarantor or by one or more other Subsidiaries, or by the Guarantor and one or more other Subsidiaries.
"Taxing Jurisdiction" means (i) any supranational federation to which the United Kingdom belongs or (ii) the jurisdiction (or any political subdivision or taxing authority thereof) under the laws of which the Company or the Guarantor is incorporated or in which the Company or the Guarantor is managed and controlled or has a place of business.
"Transfer Agent" means any Person authorized by the Company to effectuate the exchange or transfer of any Security on behalf of the Company hereunder, including, initially pursuant to Section 304, The Bank of New York and Banque Generale du Luxembourg S.A.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905.
"United Kingdom" means the United Kingdom of Great Britain and Northern Ireland, its territories, its possessions and other areas subject to its jurisdiction.
"United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
"U.K. Government Obligations" means direct obligations of or guaranteed by the United Kingdom for the payment of which obligations or guarantee the full faith and credit of the United Kingdom is pledged.
"U.S. Government Obligations" means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment of which is unconditionally guaranteed by the United States, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of a holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" of any corporation means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102. Compliance Certificates and Opinions
Except as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer or Director may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer or Director knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, in so far as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers or Director or Directors stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, unless otherwise established in or pursuant to a Board Resolution or set forth or determined in an Officers' Certificate, or established in one or more indentures supplemental hereto, a Holder, including a Book-Entry Depositary that is a Holder of a Global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver other action provided in this Indenture to be made, given or taken by Holders, and a Book-Entry Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such Book-Entry Depositary's standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such instrument, writing or proxy may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument, writing or proxy acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument, writing or proxy, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(e) The principal or face amount and serial numbers of Bearer Securities of any series held by any Person, and the date of holding the same,
may be proved by the production of such Bearer Securities or by a certificate executed by the Book-Entry Depositary for such Bearer Securities.
(f) If the Company shall solicit from the Holders of Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by Board Resolution, fix in advance a record date for purposes of determining identity of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company's discretion. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be sought or given before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Securities of such series outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Securities of such series outstanding shall be computed as of such record date.
With regard to any record date set pursuant to this subsection, the Holders of outstanding Securities of the relevant series on such record date (or their duly appointed agents), and only such Persons, shall be entitled to take relevant action, whether or not such Holders remain Holders after such record date. With regard to any action that may be taken hereunder only by Holders of a requisite principal amount of Outstanding Securities of any series (or their duly appointed agents) and for which a record date is set pursuant to this subsection, the Company may, at its option, set an expiration date after which no such action purported to be taken by any Holder shall be effective hereunder unless taken on or prior to such expiration date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this subsection, the Company may, on one or more occasions at its option, extend such expiration date to any later date. Nothing in this subsection shall prevent any Holder (or any duly appointed agent thereof) from taking, at any time, any action contrary to or different from, any action previously taken, or purported to have been taken, hereunder by such Holder, in which event the Company may set a record date in respect thereof pursuant to this subsection. Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not set a record date for, and the provisions of this paragraph shall not apply with respect to, any action to be taken by Holders pursuant to Section 501, 502 or 512.
Upon receipt by the Trustee of written notice of any default described in Section 501, any declaration of acceleration, or any rescission and annulment of any such declaration, pursuant to Section 502 or any direction in accordance with Section 512, a record date shall automatically and without any other action by any Person be set for the purpose of determining the Holders of Outstanding Securities of the series entitled to join in such notice, declaration, rescission and annulment, or direction, as the case may be, which record date shall be the close of business on the day the Trustee receives such notice, declaration, rescission and annulment or direction, as the case may be.
The Holders of Outstanding Securities of such series on such record date (or their duly appointed agent), and only such Persons, shall be entitled to join in such notice, declaration, rescission and annulment, or direction, as the case may be, whether or not such Holders remain Holders after such record date; provided that, unless such notice, declaration, rescission and annulment, or direction, as the case may be, shall have become effective by virtue of Holders of the requisite principal amount of Outstanding Securities of such series on such record date (or their duly appointed agents) having joined therein on or prior to the 90th day after such record date, such notice of default, declaration, rescission and annulment, or direction, as the case may be, given or made by the Holders, as the case may be, shall automatically and without any action by any Person be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder (or a duly appointed agent thereof) from giving, before or after the expiration of such 90-day period, a notice of default, a declaration of acceleration, a rescission and annulment of a declaration of acceleration or a direction in accordance with Section 512, contrary to or different from, or, after the expiration of such period, identical to, a previously given notice, declaration, rescission and annulment, or direction, as the case may be, that has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date in respect thereof shall be set pursuant to this paragraph.
SECTION 105. Notices, Etc. to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its registered office, with a copy addressed to the Guarantor at the address of its registered office, each as specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders: Waiver
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, (i) in the case of a Holder of Registered Securities, at his address as it appears in the Security Register, and (ii) in the case of a Holder of Global Bearer Securities, at the address provided in or pursuant to the relevant Deposit Agreement of the relevant Book-Entry Depositary, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
If Securities of any series are listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange so require, notice to Holders of such Securities shall be published in a leading newspaper having general circulation in Luxembourg.
If, by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to give such notice by mail, then such notification as shall be made at the direction of the Company in a manner reasonably calculated, to the extent practicable under the circumstances, to provide prompt notice shall constitute a sufficient notification for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event and the rules of any securities exchange on which such Bearer securities are listed so require, such notice shall be sufficiently given to Holders of such Bearer Securities if published in such newspaper or newspapers as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice by publication shall be deemed to have been given on the date of the first such publication. In addition, notice to the Holder of any Global Bearer Security shall be given by mail in the manner provided above.
If by reason of any cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver or Act required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with any provision of the Trust Indenture Act or another provision which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, the provision or requirement of the Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision of the Indenture Act shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for c6nvenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns
All covenants and agreements in this Indenture by the Company or the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause
In case any provision in this Indenture, in the Securities or in any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture
Nothing in this Indenture, in the Securities or in any Guarantee, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law
This Indenture, the Securities and any Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays
Unless otherwise specified in a supplemental indenture hereto with respect to a series of Securities, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of principal, premium, if any, or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally
The Securities of each series shall be in substantially the form appended to the supplemental indenture establishing such series, or in such other form as shall be established by or pursuant to a Board Resolution (or Officers' Certificate delivered pursuant thereto) or in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, a Board Resolution or one or more indentures supplemental hereto, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Director or Directors executing such Securities, as evidenced by the Director's or Directors' execution of the securities. If the form of Securities of any series is established by action taken pursuant to Board Resolution, a copy of an appropriate record of such action shall be certified by an authorized Director or officer of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the form set forth in this Article or in a Board Resolution (or Officers' Certificate delivered pursuant thereto) or an indenture supplemental hereto.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Director or Directors executing such Securities, as evidenced by the Director's or Directors' execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated: ____________________________ as Trustee
By:___________________________________
Authorized Signatory
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SECTION 203. Form of Trustee's Certificate of Authentication by an Authen- ticating Agent
If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee's Certificate of Authentication by such Authentication Agent to be borne by the Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated: __________________________ as Trustee
By: [NAME OF AUTHENTICATING AGENT]
Authenticating Agent
By:__________________________________
Authorized Signatory
SECTION 204. Form of Guarantee
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FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private limited company duly incorporated and existing under the laws of England and Wales (the "Guarantor", which term includes any successor Person under the Indenture referred to in the Security on which this notation is endorsed), hereby fully and unconditionally guarantees to the Holder of the accompanying Security issued by Yorkshire Power Finance 2 Limited (the "Company"), pursuant to the terms of the Guarantee contained in Article Fourteen of the Indenture, the due and punctual payment of the principal of, premium, if any, and interest, if any, on this Security (and any Additional Amounts payable in respect thereof), when and as the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of this Security and the Indenture. In case of the failure of the Company punctually to pay any such principal, premium, if any, or interest, if any, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable as if such payment were made by the Company.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee or an authenticating agent under the Indenture by the manual signature of one of its authorized officers.
YORKSHIRE POWER GROUP LIMITED
By:_______________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth or determined in the manner provided in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, the terms of such series, which may
include the following:
(1) title of the Securities of the series (which shall distinguish the Securities of such series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 305, 306, 307 or 906, and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other than the bearer (in the case of a Bearer Security) or the Person in whose name the Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest (in the case of a Registered Security);
(4) the date or dates on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable, the Regular Record Date for the interest payable on any Interest Payment Date and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
(6) the place or places, if any, in addition to or in the place of the Corporate Trust Office, where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable and (in the case of the Registered Securities) where such Securities may be registered or transferred;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the currency or currencies in which and the terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) if other than such coin or currency of the United States as at the time of payment is legal tender for payment of public or private debts, the coin or currency. including composite currencies such as the European Currency Unit, in which payment of the principal of, premium, if any, and interest, if any, on the Securities of the series shall be payable;
(12) if the principal of, premium, if any, or interest, if any, on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the currency or currencies in which principal of or any premium or interest on such Securities as to which such election is made shall be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of, premium, if any, or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(14) any provisions permitted by this Indenture relating to Events of Default or covenants of the Company or the Guarantor with respect to such series of Securities;
(15) if the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities, (i) whether beneficial owners of interests in any such Global Security or Securities may exchange such interests for definitive Registered Securities of such series of like tenor and of authorized form and denomination and the circumstances under which any such changes may occur, if other than in the manner provided in Section 306, and (ii) the Book-Entry Depositary for such Global Security or Securities;
(16) if the Company ever wishes to issue definitive Bearer Securities then all provisions relating to or governing such Bearer Securities will be set forth in an indenture supplemental hereto;
(17) if Article Fourteen and the other provisions of this Indenture relating to the Guarantee of the Securities are applicable to such series; and
(18) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and set forth in the Officers Certificate referred to above or in any indenture supplemental hereto referred to above.
If any of the terms of the Securities of a series, including the form of Security of such series, are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary or other authorized officer or Director, and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such series of Securities.
SECTION 302. Denominations
The Securities of each series shall be issuable in bearer form or in registered form without coupons, except as otherwise expressly provided in a supplemental indenture hereto, in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by any Director the Secretary or any other officer of the Company so authorized and need not be attested. Definitive Registered Securities of any series may have the Company's seal reproduced thereon which need not be attested. The Securities
of any series shall be executed by such additional Director or officer, if any, as shall be specified pursuant to Section 301. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any individual who was at any time the proper Director or officer of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of authentication of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying on, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general principles of equity.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a. certificate of authentication substantially in the form provided for herein executed by the Trustee or an Authenticating Agent by manual signature,
and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. Transfer Agent and Paying Agent
For so long as Securities of a series are listed on the Luxembourg Stock Exchange and such stock exchange shall so require, the Company shall maintain a Paying Agent and Transfer Agent in Luxembourg.
The Company shall enter into an appropriate appointment letter with any Registrar, Transfer Agent or Paying Agent not a party to this Indenture, which shall implement the provisions of this Indenture that relate to such Person. The Company shall notify the Trustee of the name and address of any such Person. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 607. The Company initially appoints the Trustee as Registrar, Transfer Agent and Principal Paying Agent in The City of New York.
SECTION 305. Temporary Securities
Pending the preparation of a permanent Global Security or definitive Securities of any series, the Company may execute, and upon Company Order the Trustee or the Authenticating Agent shall authenticate, and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form, and with such appropriate insertions, omissions, substitutions and other variations as the officer or officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder except as provided in Section 306 in connection with a transfer and except that a Person receiving definitive Bearer Securities shall bear the cost of insurance, postage, transportation and the like. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series and of like tenor of authorized denominations.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security for the individual Securities represented thereby pursuant to this Section 305 or Section 306, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount of such temporary Global Security, and such principal amount shall be reduced for all purposes by the amount so exchanged and endorsed.
SECTION 306. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. The Company may have one or more coregistrars and the term "Security Registrar" includes any co-registrar.
Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, any Registered Security or Registered Securities of any series, other than a Global Security, may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and upon receipt of a Company Order the Trustee or the Authenticating Agent shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Bearer Securities may not be delivered by the Trustee, the Authenticating Agent or the Security Registrar in exchange for Registered Securities.
All Securities issued upon any registration of transfer or exchange of Registered Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Registered Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
Interests in a Global Security or Securities may be exchanged for definitive Registered Securities of the same series in whole or in part only under the circumstances provided in this Indenture, in an Officers' Certificate (pursuant to a Board Resolution) or in an indenture supplemental hereto pursuant
to which Securities of that series are issued or in the Securities of that series. In such event the Company will execute, and the Trustee or the authenticating Agent, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series, will authenticate and deliver such definitive Registered Securities. Any such definitive Registered Securities so issued shall be registered in thee name of such Person or Persons as the Book-Entry Depositary shall instruct the Trustee and the Security Registrar in writing. The Trustee or the Security Registrar shall deliver such definitive Registered Securities to the Persons in whose names such definitive Registered Securities are so registered. Upon the exchange (i) in whole of a Global Security or Securities for definitive Registered Securities in equal aggregate principal amount, such Global Security or Securities shall be delivered to the Trustee for cancellation or (ii) in part of a Global Security or Securities for definitive Registered Securities, then the principal amount of such Global Security or Securities shall be reduced by an endorsement on such Global Security or Securities in an amount equal to the aggregate principal amount of such definitive Registered Securities. Interests in a Global Security or Securities may not be exchanged for definitive Bearer Securities. Notwithstanding the foregoing, interests in a Global Security may not be exchanged for definitive Registered Securities during the sixteen day period immediately prior to and including each Interest Payment Date.
No service charge shall be made to the Holder for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 305, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption under Section 1103 and ending at the close of business on the day of such mailing, (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of the series (but only if and under the circumstances for which the Securities of such series are issuable as Registered Securities), provided that such Registered Security shall be immediately surrendered for redemption with written instructions for payment consistent with the provisions of this Indenture.
The provisions of this Section 306 are, with respect to any Global Security, subject to Section 312 hereof.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 307, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section 307 in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 307 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 308. Payment of Interest: Interest Rights Reserved
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid (in the case of a Bearer Security) to the bearer thereof and (in the case of a Registered Security) to the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Payment of interest, if any, in respect of any Registered Security will be made by check mailed to the address of the Person entitled thereto as such person's address appearing in the Security Register. Payment of interest, if any, in respect of any Registered Security may also be made, in the case of a Holder of at least U.S. $1,000,000 (or the equivalent thereof in other currencies) aggregate principal amount of Registered Securities, and payment of interest, if any, in respect of a Global Registered Security shall be made, by wire transfer to an account denominated in the same currency as the relevant Securities maintained by the Holder with a bank in the country in whose currency the relevant Securities are denominated; provided that such Holder elects payment by wire transfer by giving written notice to the Trustee or a Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion.
Any interest on any Security of any series which is payable but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall, in the case of Registered Securities, forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and respective principal amounts of such Registered Securities held by, the Holders appearing on the Security Register at the close of business on such Special Record Date. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series or any Global Registered Security in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange.
Defaulted Interest on Bearer Securities shall be payable to the bearer thereof at the time of payment of such Defaulted Interest by the Company.
Subject to the foregoing provisions of this Section 308, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other security, shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 309. Persons Deemed Owners
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of; premium, if any, and (subject to Section 308) interest, if any, on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. All such payments so made to any such person, or upon such person's order, shall be valid, and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Security.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Book-Entry Depositary for a Global Bearer Security as the absolute owner of such Global Bearer Security for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Global Bearer Security or coupon shall be overdue, and neither the Company or the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Book-Entry Depositary shall have any rights under this Indenture with respect to such Global Security, and such Book-Entry Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall impair, as between a Book- Entry Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Book-Entry Depositary as holder of any Security.
SECTION 310. Cancellation
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section 310, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of as directed by a Company Order.
SECTION 311. Computation of Interest
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Global Securities
If the Company shall establish pursuant to Section 301 that the Securities of a particular series are to be issued in the form of a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 303, authenticate and deliver, a Global Security or Securities which (i) shall represent, and shall be denominated in an aggregate amount equal to the aggregate principal amount of; all of the Outstanding Securities of such series, (ii) shall be in bearer form or, if in registered form, registered in the name of the Book-Entry Depositary or its nominee, (iii) shall be delivered by the Trustee to the Book-Entry Depositary or pursuant to the Book-Entry Depositary's instruction and (iv) shall bear a legend substantially to the following effect:
"This Security is a Global Security within the meaning of the Indenture hereinafter referred to and if this Security is in bearer form, is held by a Book-Entry Depositary or, if this Security is in registered form, is registered in the name of a Book-Entry Depositary or a nominee of a Book-Entry Depositary. This Security is exchangeable for Securities, if this Security is in bearer form, held by, or if this Security is in registered form, registered in the name of, a person other than the Book-Entry Depositary or its nominee only in the limited circumstances described in the Indenture.
"Unless this Global Security is presented by an authorized representative of the Book-Entry Depositary to the Company or its agent for registration of transfer, if this Security is in registered form, exchange or payment, and any definitive Registered Security is issued in the name or names as directed in writing by the Book-Entry Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the bearer or the registered owner hereof; as the case may be, the Book-Entry Depositary, has an interest herein."
Unless and until definitive Registered Securities of a series are issued in exchange for the Global Security of a series as permitted by this Indenture, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 306, only to another nominee of the Book-Entry Depositary for such series, or to a successor Book-Entry Depositary for such series selected or approved by the Company or to a nominee of such successor Book-Entry Depositary.
No Security that is not a Global Bearer Security may be payable to bearer (except as otherwise provided in an indenture supplemental hereto or in an Officers' Certificate (pursuant to a Board Resolution) pursuant to Section 301(16)).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and rights to receive payments of any principal, premium or interest in respect thereof and any right to receive any Additional Amount as provided in Section 1009), and the Trustee shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either (A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 307 and (ii) Securities for whose payment money has theretofore been deposited in trust with the Trustee or any paying agent or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 403, as applicable.
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount of (a) money in the currency or units of currency in which such Securities are payable, or (b) U.S. Government Obligations or U.K. Government Obligations, as applicable (denominated in the same currency or units of currency in which such Securities are payable), which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the Stated Maturity or Redemption Date, as the case may be, money in an amount, or (c) a combination of money or U.S. Government Obligations or U.K. Government Obligations, as applicable, as provided in (b) above, in each case, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 401 or if money or U.S. Government Obligations shall have been deposited with or received by the Trustee pursuant to Section 403, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money
(a) Subject to the provisions of the last paragraph of Section 1003, all money or U.S. Government Obligations or U.K. Government Obligations deposited with the Trustee pursuant to Sections 401 or 403, and all money received by the Trustee in respect of U.S. government Obligations or U.K. Government Obligations deposited with the Trustee pursuant to Sections 401 or 403, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, to the persons entitled thereto, of the principal of, premium, if any, and interest, if any, on the Securities for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as provided by Sections 401 or 403.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or U.K. Government Obligations deposited pursuant to Sections 401 or 403 or the interest, premium, if any, and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or U.K. Government Obligations or money held by it as provided in Sections 401 or 403 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or U.K. Government Obligations or money was deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or U.K. Government Obligations held under this Indenture.
(d) Any monies paid by the Company to the Trustee or any Paying Agent, or held by the Company in trust, for the payment of the principal of, premium, if any, or interest, if any, or Additional Amounts on any Securities and remaining unclaimed at the end of two years after such principal, premium, interest or Additional Amounts become due and payable will be repaid to the Company, or released from the trust, upon its written request, and upon such repayment or release all liability of the Company, the Trustee and such Paying Agent with respect thereto will cease.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series
The Company, at its option, may elect (a) to be discharged from any and all obligations in respect of the Securities of a series (except in each case for the obligations to register the transfer or exchange of the Securities of that series, replace stolen, lost or mutilated Securities of that series, maintain paying agencies and hold moneys for payment in trust); or (b) not to comply with any term, provision or condition set forth in Sections 801, 1004 and 1005 with respect to the Securities of any series, provided that the following conditions shall have been satisfied:
The Company has irrevocably deposited or caused to be
deposited (except as provided in Section 607, 402(d) and the last paragraph of
Section 1003) with the Trustee (specifying that each deposit is pursuant to this
Section 403) as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such
series, (i) money or (ii) U.S. Government Obligations or U.K. Government
Obligations, as applicable, which through the payment of interest and principal
in respect thereof in accordance with their terms will provide money, or (iii) a
combination thereof, in each case, in an amount sufficient, in the opinion of a
nationally recognized firm of independent accountants, to pay and discharge the
principal of, premium, if any, and interest, if any (including any Additional
Amounts then known), if any, on the outstanding Securities of such series on the
dates such payments are due in accordance with the terms of the Securities of
such series, (or if the Company has designated a redemption date pursuant to the
final sentence of this paragraph, to and including the redemption date so
designated by the Company), and no Event of Default or event which with notice
or lapse of time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have occurred and
be continuing on the date of such deposit or, insofar as Section 501(7) is
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be satisfied
until the expiration of such period), and the Securities of such series will not
be delisted by any securities exchange on which they are traded as a result of
the deposit of trust funds in trust. To exercise any such option, the Company is
required to deliver to the Trustee: (i) an opinion of independent counsel of
recognized standing to the effect that (x) the Holders of the Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case absent such deposit, which in the case of clause (a)
must be based on a change in law or a published ruling by the United States
Internal Revenue Service and (y) the deposit shall not result in the Company
being deemed to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended; (ii) an opinion of independent
counsel in the Eligible Jurisdiction of recognized standing, if applicable, to
the effect that (x) the Holders will not recognize income, gain or loss for tax
purposes of such Eligible Jurisdiction as a result of such deposit and will be
subject to income tax in such Eligible Jurisdiction on the same amounts, in the
same manner and at the same times as would have been the case absent such
deposit and (y) sums held by and profit (of an income or a capital nature)
realized by the Trustee and payments from the defeasance trust will be free and
exempt from any and all withholding and other income or capital taxes of
whatever nature imposed or levied by or on behalf of such Eligible Jurisdiction
or any political subdivision or any authority therein having power to tax
(except for any withholding taxes in respect of which the Company or the
Guarantor has paid Additional Amounts into the defeasance trust); and (iii) an Officers' Certificate as to compliance with all conditions precedent provided for in the Indenture relating to the satisfaction and discharge of the Securities of such series. If the Company shall wish to deposit or cause to be deposited money or U.S. Government Obligations or U.K. Government Obligations, as applicable, to pay or discharge the principal, premium, if any and interest, if any, (including any Additional Amounts then known), if any, on the outstanding Securities of such series to and including a Redemption Date on which all of the outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution delivered to the Trustee on or prior to the date of deposit of such money or U.S. Government Obligations or U.K. Government Obligations, as applicable, and such Board Resolution shall be accompanied by an irrevocable Company Request that the Trustee give notice of such redemption in the name and at the expense of the Company not less than 30 nor more than 60 days prior to such Redemption Date in accordance with this Indenture.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
"Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events:
(1) default in the payment of any interest or any Additional Amounts upon any Security of that series when it becomes due and payable and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or
(3) default in the payment of any installment of any sinking fund provided with respect to such series, when and as due by the terms of a Security of that series; or
(4) material default in the performance, or material breach, of any covenant or obligation of the Company or the Guarantor in this Indenture (other than a covenant a default in whose performance or whose breach is elsewhere in this Section 501 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series of Securities other than that series) and continuance of such material default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company or the Guarantor by the Trustee or to the Company or the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) a default in the payment of the principal of any bond, debenture, note or other evidence of indebtedness, in each case for money borrowed, or in the payment of principal under any mortgage,
indenture (including this Indenture) or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed, of the Company, the Guarantor or any Significant Subsidiary, which default for payment of principal is in an aggregate principal amount exceeding U. S. $50,000,000 (or its equivalent in any other currency or currencies) when such indebtedness becomes due and payable (whether at maturity, upon redemption or acceleration or otherwise), if such default shall continue unremedied or unwaived for more than 30 Business Days and the time for payment of such amount has not been expressly extended; provided, however, that, subject to the provisions of Sections 601 and 602, the Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company or the Guarantor, from any Holder, from the holder of any such indebtedness or from the trustee under any such mortgage, indenture or other instrument; and provided, further, that if such default under such indenture or instrument shall be remedied or cured by the Company, the Guarantor or such Significant Subsidiary or waived by the holders of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been remedied, cured or waived without further action upon the part of the Trustee or any of the Holders; or
(6) any Guarantee shall be held in a judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect; or
(7) the failure of the Company, the Guarantor, or a Significant Subsidiary generally to pay its debts as they become due, or the admission in writing of its inability to pay its debts generally, or the making of a general assignment for the benefit of its creditors, or the institution of any proceeding by or against the Company, the Guarantor or a Significant Subsidiary (other than any such proceeding brought against the Company, the Guarantor or a Significant Subsidiary that is dismissed within 180 days from the commencement thereof) seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization, moratorium or relief of debtors, or seeking the entry of an order for relief or appointment of an administrator, receiver, trustee, intervenor or other similar official for it or for any substantial part of its property, or the taking of any action by the Company, the Guarantor or a Significant Subsidiary to authorize any of the actions set forth in this subparagraph (7); or
(8) any other Event of Default provided in the supplemental indenture or provided in or pursuant to the Board Resolution under which such series of Securities is issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity: Rescission and Annulment
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such declaration of acceleration with respect to Securities of any series has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as hereinafter in this Article provided, if all Events of Default with respect to Securities of that series have been cured or waived (other than the non-payment of principal of the Securities which has become due solely by reason of such declaration of acceleration) then such declaration of acceleration and its consequences shall be automatically annulled and rescinded.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if
(1) default is made in the payment of any interest on any Security of a series when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of, premium, if any, on any Security of a series at the Stated Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit of the Holders of such Securities of such series, the whole amount then due and payable on such Securities of such series for principal of, premium, if any, and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal of, premium, if any, and interest, at the rate or rates prescribed therefor in such Securities of such series, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If any Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights.
SECTION 504. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation (other than a solvent liquidation), bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor on the Securities or the property of the Company or of such other obligor or the creditors of either or both of them, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal, premium, if any, and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorizes or consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of any judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be applied in the following order with respect to the Securities of any series, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal of, premium, if any, or interest, if any, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 607;
SECOND: In case the principal and premium, if any, of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities of such a series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee and to the extent permitted by law) upon the overdue installments of interest at the rate prescribed there for in such Securities, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid on all the Securities of such series for principal, premium, if any, and interest, if any, with interest upon the overdue principal of premium, if any, and (to the extent that such interest has been collected by the Trustee and to the extent permitted by law) upon overdue installments of interest at the rate prescribed therefor in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and any premium and interest, without preference or priority of principal over interest, or of interest over principal or premium, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and any premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
SECTION 507. Limitation on Suits
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
Notwithstanding Section 507, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, premium, if any, or (subject to Section 307) interest, if any, on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Company, the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) the Trustee shall not determine that the action so directed would be prejudicial to Holders not taking part in such action.
SECTION 513. Waiver of Past Defaults
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant in such suit, but the provisions of this Section 514 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of, premium, if any, interest, if any, on any Security on or after the Stated Maturity or Maturities expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities
(a) Except during the continuance of a default with respect to the Securities of any series,
(1) the Trustee undertakes to perform, such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the same to determine whether or not they conform to the requirements of this Indenture.
(b) In case a default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless the Trustee was negligent in ascertaining the pertinent facts;
(2) no provision of this Indenture shall require the Trustee to spend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if repayment of such funds or adequate indemnity against such risk or liability satisfactory to the Trustee has not been assured to it; and
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the outstanding Securities of any series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 601.
SECTION 602. Notice of Defaults
(a) Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or a Responsible Officer of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 602, the term "default" means, with respect to Securities of any Series, any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
(b) If any installment of principal of or premium, if any, interest on the Securities of a series, for which, pursuant to Section 301, provision has been made for the Guarantee thereof by the Guarantor, is not paid
when due in accordance with Section 1001, then no later than 11:00 a.m. (New York City time in the case of payments in US Dollars and London time in the case of payments in Pounds Sterling) on the due date for such payment, the Trustee shall notify the Guarantor of such nonpayment.
SECTION 603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order or as otherwise expressly provided herein and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel, and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend or risk its own funds or to exercise, at the request or direction of any of the Holders, any of the rights or powers vested in it by this Indenture pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable prior request and during normal business hours to examine the books, records and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and shall not be liable for the actions or omissions of such agents appointed and supervised by it with due care.
SECTION 604. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement
The Company agrees:
(1) to pay to the Trustee from time to time such compen- sation as is agreed upon in writing;
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel, which compensation, expenses and disbursements shall be set forth in sufficient written detail to the satisfaction of the Company), except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors and employees for, and to hold it and them harmless against, any loss, liability or expense incurred without negligence, bad faith, or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. Obligations under this Section 607(3) will survive the satisfaction and discharge of this Indenture pursuant to Section 401 hereof.
SECTION 608. Disqualification: Conflicting Interests
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required: Eligibility
There shall at all times be a Trustee hereunder which shall be eligible to act as trustee under the Trust Indenture Act and which shall have a combined capital and surplus of at least U.S.$50,000,000. If the Trustee does not have an office in The City of New York, the Trustee may appoint an agent in The City of New York reasonably acceptable to the Company to conduct any activities which the Trustee may be required under this Indenture to conduct in The City of New York. If the Trustee does not have an office in The City of New York or has not appointed an agent in The City of New York, the Trustee shall be a participant in The Depository Trust Company and FAST distribution systems. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a United States federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 609, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 609, the Trustee shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal: Appointment of Successor Trustee
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 10 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 608 with respect to any
series of Securities after written request therefor by the Company or by any Holder who has been a bona fide holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collecting of Claims Against Company
(a) Subject to Subsection (b) of this Section 613, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to a default, as defined in Subsection (c) of this Section 613, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the Holders of the Securities and the holders of other indenture securities, as defined in Subsection (c) of this Section 613:
(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest effected after the beginning of such three months' period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this Subsection, or from the exercise of any right of setoff which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as such creditor, whether as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such three months' period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such claim by any Person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third Person, and (iii) distributions made in cash, securities or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such three months' period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default, as defined in Subsection (c) of this Section 613, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as provided in paragraph (B) or (C), as the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such three months' period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account for the funds and property held in such special account, the proceeds thereof shall be apportioned among the Trustee, the Holders and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the Cayman Islands or the United Kingdom, as applicable, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee and the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the Cayman Islands or the United Kingdom, as applicable, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or proceedings for reorganization pursuant to the Federal Bankruptcy Act or applicable State law or winding up or administration pursuant to the insolvency laws of the Cayman Islands or the United Kingdom, as applicable, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim.
Any Trustee which has resigned or been removed after the beginning of such three months' period shall be subject to the provisions of this Subsection as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three months' period, it shall be subject to the provisions of this Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would have given rise to the obligation to account, if such Trustee had continued as Trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advances and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depository, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented, or an indebtedness created as a result of goods or securities sold in a cash transaction, as defined in Subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25 (a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper, as defined in Subsection (c) of this Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make payment in full of the principal of or interest on any of the Securities or upon the other indenture securities when and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" means securities upon which the Company is an obligor (as defined in the Trust Indenture Act) outstanding under any other indenture (i) under which the Trustee is also trustee, (ii) which contains provisions substantially similar to the provisions of this Section 613, and (iii) under which a default exists at the time of the apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Code or Title 11 of the United States Code.
SECTION 614. Authenticating Agents
From time to time the Trustee, with the prior written approval of the Company, may appoint one or more Authenticating Agents with respect to one or more series of Securities with power to act on the Trustee's behalf and subject to its direction in the authentication and delivery of Securities of such series or in connection with transfers and exchanges under Sections 304, 305, 306, and 1104 as fully to all intents and purposes as though the Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities by an Authenticating Agent pursuant to this Section 614 shall be deemed to be authentication and delivery of such Securities "by the Trustee". Each such Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least U.S. $50,000,000 and subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 614 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be merged or with which it may be consolidated, or any corporation resulting from, any merger or consolidation or to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of the Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this
Section 614, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.
An Authenticating Agent may resign at any time by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section 614, the Trustee may appoint a successor Authenticating Agent with the prior written approval of the Company and shall mail notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as the names and addresses of such Holders appear on the Security Register. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614 as may be agreed in a separate writing among the Company, the Trustee and such Authenticating Agent, and the Trustee shall be entitled to be reimbursed for such payments pursuant to Section 607.
If an appointment with respect to one or more series of Securities is made pursuant to this Section 614, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to in the within mentioned Indenture.
Dated: _________________________________
As Trustee
{NAME OF AUTHENTICATING AGENT}
__________________________________
Authenticating Agent
By:
__________________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee with respect to the Registered Securities of each series
(a) semi-annually, not later than 15 days after each Regular Record Date, or, in the case of any series of Registered Securities on which semiannual interest is not payable, not more than 15 days after such semi-annual dates as may be specified by the Trustee, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date or semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar for any series of Registered Securities, no such list shall be required to be furnished with respect to any such series.
SECTION 702. Preservation of Information: Communications to Holders
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders whose names and addresses appears in the information preserved at the time by the Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 702(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the beat interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to the applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable, by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee
(a) Within 60 days after July 1 of each year, commencing July 1, 2000, the Trustee shall transmit by mail to all Holders of Securities a brief report dated as of such July 1, of such year with respect to any of the following events which may have occurred within the previous 12 months (but if no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 609 and its qualifications under Section 608;
(2) the creation of or any material change to a relationship specified in Section 608;
(3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than one-half of one percentum of the principal amount of the Securities outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Sections
613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties hereunder a which it has not previously reported and which in its opinion materially affects the Securities, except action in respect of a default, notice of which, has been or is to be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of Securities a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state. the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to Subsection (a) of this Section 703 (or if no such report has yet been so transmitted, since the date of execution of this instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on property or funds held or collected by it as Trustee and which it has not previously reported pursuant to this Subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of the securities outstanding at such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each United States national securities exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any United States national securities exchange.
SECTION 704. Reports
The Company and the Guarantor shall:
(1) file with the Trustee, within 30 days after the Guarantor
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Guarantor
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Guarantor is not required to file information, documents or reports
pursuant to either of said Sections and one or more series of the Securities is listed on a United States national securities exchange, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a United States national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section 704 as may be required by rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. Company or Guarantor May Consolidate. Etc. Only on Certain Terms
Nothing contained in this Indenture or in the Securities of
any series shall prevent the Company or the Guarantor from consolidating with or
merging into another corporation or corporations, or successive consolidations
or mergers or conveying, transferring, leasing or otherwise disposing of its
properties and assets substantially as an entirety to any person, provided that
(a) the successor entity expressly assumes all of the Company's applicable
obligations on the Securities or the Guarantor's applicable obligations under
the Guarantee, as the case may be, and (b) immediately after giving effect to
such transaction no Event of Default and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have happened and be
continuing. In addition, each of the Company and the Guarantor may assign and
delegate all of its rights and obligations on the Securities of any series,
under this Indenture, on the Guarantee and all other documents, agreements and
instruments related thereto, as applicable, to any Person that owns all of the
ordinary shares of the Company or the Guarantor or to any Person that owns all
of the ordinary shares of a Person that owns all of the ordinary shares of the
Company or the Guarantor, and upon any such Person assuming such rights and
obligations the Company or the Guarantor shall be automatically released from
such obligations, provided that immediately after giving effect to such
transaction no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default shall have happened and be
continuing.
In the event that any such successor entity is organized under the laws of or is managed or controlled or has a place of business in a jurisdiction located outside of a Taxing Jurisdiction and withholding or deduction is required by law for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within such jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax, the successor entity shall pay to the relevant Holder of the Securities of such series such Additional Amounts, under the same circumstances and subject to the same limitations as are specified for in Section 1009 hereof, but substituting for the applicable Taxing Jurisdiction in each place the name of such jurisdiction. In addition, such successor entity shall be entitled to effect an optional tax redemption under the same circumstances and subject to the same limitations as are set forth in Section 1108 hereof, but substituting for the applicable Taxing Jurisdiction in each place the name of the country under the laws of which such successor entity is organized, managed and controlled or has a place of business and substituting the date of such succession for the date of original issuance of the Securities of such series.
SECTION 802. Successor Corporation to be Substituted
Upon any consolidation by the Company or the Guarantor with or
merger by the Company or the Guarantor into any other corporation or any
conveyance, transfer, lease or other disposition of the properties and assets of
the Company or the Guarantor substantially as an entirety in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company or the Guarantor is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Company or the Guarantor herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders
Without the consent of any Holders, the Company, the Guarantor and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another company to the Company or the Guarantor and the assumption by any such successor of the covenants of the Company or the Guarantor herein and in the Securities or any Guarantee;
(2) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor;
(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series);
(4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Bearer Securities, registrable or not registrable as to principal, and with or without interest coupons, or to facilitate the issuance of Securities in uncertificated form, or to permit or facilitate the issuance of extendible Securities;
(5) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only as to the Securities of any series created by such supplemental indenture and Securities of any series subsequently created to which such change or elimination is made applicable by the subsequent supplemental indenture creating such series;
(6) to secure the Securities;
(7) to establish the form and terms of the Securities of any series as permitted by Sections 201 and 301;
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b);
(9) to provide for any rights of the Holders of Securities of any series to require the repurchase of Securities of such series by the Company; or
(10) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to evidence the merger of the Company or the replacement of the Trustee, or to make any other provisions with respect to matters or questions arising under this Indenture; provided such action shall not materially and adversely affect the interests of the Holders of Securities of any series.
SECTION 902. Supplemental Indentures with Consent of Holders
With the consent of the Holders of a majority in aggregate principal amount of the outstanding Securities of all series affected by such supplemental indenture (voting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, the Guarantor and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of interest, if any, on, any Security, or reduce the principal amount thereof or interest thereon (including Additional Amounts) or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section 902 or
Section 513, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
902, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall, if so required by the Trust Indenture Act, conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal. Premium, if any, and Interest
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of, premium, if any, and interest and Additional Amounts, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture. An installment of principal of or interest on the Securities of a series shall be considered paid on the date it is due if the Trustee or Paying Agent holds at 11:00 a.m. (New York City time in the case of payments in US Dollars and London time in the case of payments in Pounds Sterling) on that date money deposited by the Company in immediately available funds and designated for, and sufficient to pay, the installment in full.
Neither the Company, the Guarantor, nor any agent of the Company or the Guarantor will have any responsibility or liability for any aspect relating to payments made or to be made by the Book-Entry Depositary to DTC in respect of the Securities of a series or the Book-Entry Interests. None of the Company, the Trustee, the Book-Entry Depositary or any agent of any of the foregoing will have any responsibility or liability for any aspect relating to payments made or to be made by DTC on account of a Participant's or Indirect Participant's ownership of an interest in the Book-Entry Interests or for maintaining, supervising or reviewing any records relating to a Participant's interests in the Book-Entry Interests.
SECTION 1002. Maintenance of Office or Agency
The Company will maintain (i) in the Borough of Manhattan, The City of New York, an office or agency where Securities of any series may be presented or surrendered for payment, and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served and if definitive Registered Securities have been issued, an office or agency of a Transfer Agent where Securities may be surrendered for registration of transfer or exchange, and (ii) an office or agency of a Paying Agent where the Securities may be paid in Luxembourg so long as the Securities are listed on the Luxembourg Stock Exchange and the rules of such exchange so require. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fall to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of that series pursuant to Section 1001 may be presented at the place specified for the purpose pursuant to Section 301, and the Company hereby appoints the Paying Agent as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Securities of one or more series and any appurtenant coupons (subject to Section 1001) may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided, however that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for any series of Securities for such purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such other office or agency. The Company will at all times maintain at least one Paying Agent which is located outside the United Kingdom for each series of Securities.
SECTION 1003. Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of, premium, if any, or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, no later than 11:00 a.m. (New York City time in the case of payments in US Dollars and London time in the case of payments in Pounds Sterling) on or prior to each due date of the principal of, premium, if any, or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum in immediately available funds sufficient to pay the principal, premium, if any, or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest.
Any Paying Agent appointed pursuant to Section 304 herein shall:
(1) hold all sums held by it for the payment of the principal of, premium, if any, or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal of, premium, if any, or interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by the Company or by any Paying Agent to the Trustee, the Company or such Paying Agent, as the case may be, shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 1004. Limitation on Liens
If this covenant shall be made applicable to the Securities of a particular series as contemplated by Section 301 hereof, the Company and the Guarantor shall not, and shall not cause or permit any Significant Subsidiary to, issue, assume or guarantee or permit to exist any notes, bonds, debentures or other similar evidences of indebtedness, in each case for money borrowed ("Debt"), secured by a Lien upon any property or assets (other than cash) of the Company, the Guarantor or such Significant Subsidiary, as applicable, without effectively providing that the outstanding Securities (together with, if the Guarantor so determines, any other indebtedness or obligation then existing or thereafter created ranking equally with such Securities) shall be secured equally and ratably with (or prior to) such Debt so long as such Debt shall be so secured. The foregoing restriction on Liens will not, however, apply to:
(a) Liens in existence on the date of original issue of such Securities;
(b) (i) any Lien created or arising over any property which is acquired, constructed or created by the Company, the Guarantor or any of its Significant Subsidiaries, but only if (A) such Lien secures only principal
amounts (not exceeding the cost of such acquisition, construction or creation) raised for the purposes of such acquisition, construction or creation, together with any costs, expenses, interest and fees incurred in relation thereto or a guarantee given in respect thereof, (B) such Lien is created or arises on or before 90 days after the completion of such acquisition, construction or creation and (C) such Lien is confined solely to the property so acquired, constructed or created; or (ii) any Lien to secure Debt of the Company, the Guarantor or a Significant Subsidiary incurred in connection with a specifically identifiable project where the Lien relates to and is confined to a property or properties (including, without limitation, shares or other rights of ownership in the entities which own such property or project) involved in such project and acquired by the Company, the Guarantor or a Significant Subsidiary after the date of original issue of the Securities of any series and the recourse of the creditors in respect of such Debt is limited to any or all of such project and property (including as aforesaid);
(c) any Lien securing amounts (in respect of, for the avoidance of doubt, taxes, assessments or governmental charges or claims) that are not more than 90 days overdue or otherwise being contested in good faith;
(d) (i) rights of financial institutions to offset credit balances in connection with the operation of cash management programs established for the benefit of the Company, the Guarantor or a Significant Subsidiary or in connection with the issuance of letters of credit for the benefit of the Company, the Guarantor and/or a Significant Subsidiary; (ii) any Lien securing Debt of the Company, the Guarantor or a Significant Subsidiary incurred in connection with the financing of accounts receivable; (iii) any Lien incurred or deposits made in the ordinary course of business, including, but not limited to, (A) any mechanics', materialmens', carriers', workmen's, vendors' or other like Liens and (B) any Liens securing amounts in connection with workers' compensation, unemployment insurance and other types of social security; (iv) any Lien upon specific items of inventory or other goods and proceeds of the Company, the Guarantor or a Significant Subsidiary securing obligations of the Company, the Guarantor or a Significant Subsidiary in respect of bankers' acceptances issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods; (v) any Lien incurred or deposits made securing the performance of tenders, bids, leases, trade contracts (other than for borrowed money), statutory obligations, surety bonds, appeal bonds, government contracts, performance bonds, return-of-money bonds and other obligations of like nature incurred in the ordinary course of business; (vi) any Lien created by the Company, the Guarantor or a Significant Subsidiary under or in connection with or arising out of any pooling and settlement agreements or pooling and settlement arrangements of the United Kingdom electricity industry including, without limitation, the Pooling and Settlement Agreement dated March 30, 1990, as amended, modified or supplemented from time to time, or any transactions or arrangements entered into in connection with hedging or management of risks relating to the electricity industry in the United Kingdom; (vii) any Lien constituted by a right of set off or right over a margin call account or any form of cash or cash collateral or any similar arrangement for obligations incurred in respect of the hedging or management of risks under transactions involving any currency or interest rate swap, cap or collar arrangements, forward exchange transaction, option, warrant, forward rate agreement, futures contract or other derivative instrument of any kind; (viii) any Lien arising out of title retention or like provisions in connection with the purchase of goods and equipment in the ordinary course of business; and (ix) any Lien securing reimbursement obligations under letters of
credit, guaranties and other forms of credit enhancement given in connection with the purchase of goods and equipment in the ordinary course of business;
(e) Liens in favor of the Company, the Guarantor or a Significant Subsidiary;
(f) (i) Liens on any property or assets acquired from a corporation which is merged with or into the Company, the Guarantor or a Significant Subsidiary, or any Liens on the property or assets of any corporation or other entity existing at the time such corporation or other entity becomes a Significant Subsidiary of the Guarantor and, in either such case, is not created in anticipation of any such transaction (unless such Lien is created to secure or provide for the payment of any part of the purchase price of such corporation); (ii) any Lien on any property or assets existing at the time of acquisition thereof and which is not created in anticipation of such acquisition (unless such Lien was created to secure or provide for the payment of any part of the purchase price of such property or assets); and (iii) any Lien created or outstanding on or over any asset of any Person which becomes a Significant Subsidiary on or after the date of the issuance of such Securities when such Lien is created prior to the date on which such Person becomes a Significant Subsidiary;
(g) (i) Liens required by any contract or statute in order to permit the Company, the Guarantor or a Significant Subsidiary to perform any contract or subcontract made by it with or at the request of a governmental entity or any department, agency or instrumentality thereof, or to secure partial, progress, advance or any other payments by the Company, the Guarantor or a Significant Subsidiary to such governmental unit pursuant to the provisions of any contract or statute; and (ii) any Lien securing industrial revenue, development or similar bonds issued by or for the benefit of the Company, the Guarantor or a Significant Subsidiary, provided that such industrial revenue, development or similar bonds are nonrecourse to the Company, the Guarantor or such Significant Subsidiary;
(h) (i) any Lien which arises pursuant to any order of attachment, distraint or similar legal process arising in connection with court proceedings and any Lien which secures the reimbursement obligation for any bond obtained in connection with an appeal taken in any court proceeding, so long as the execution or other enforcement of such Lien arising pursuant to such legal process is effectively stayed and the claims secured thereby are being contested in good faith and, if appropriate, by appropriate legal proceedings, or any Lien in favor of a plaintiff or defendant in any action before a court or tribunal as security for costs and/or other expenses; or (ii) any Lien arising by operation of law or by order of a court or tribunal or any Lien arising by an agreement of similar effect, including, without limitation, judgment liens; or
(i) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Liens referred to in the foregoing clauses, for amounts not exceeding the principal amount of the Debt secured by the Lien so extended, renewed or replaced, provided that such extension, renewal or replacement Lien is limited to all or a part of the same property or assets that were covered by the Lien extended, renewed or replaced (plus improvements on such property or assets).
Notwithstanding the foregoing, the Company, the Guarantor or a Significant Subsidiary may create or permit to subsist Liens over any property
or assets, so long as the aggregate amount of Debt secured by all such Liens
(excluding therefrom the amount of Debt secured by Liens set forth in clauses
(a) through (i), inclusive, above) does not exceed 10% of Consolidated Net
Tangible Assets.
Nothing contained in this Indenture in any way restricts or prevents the Company or any Subsidiary from incurring any Debt.
SECTION 1005. Limitation on Sale and Lease-Back Transactions
If this covenant shall be made applicable to the Securities of
a particular series as contemplated by Section 301 hereof, each of the Company
and the Guarantor covenants and agrees that so long as any Securities of such
series remains outstanding, each will not, and the Guarantor will not cause or
permit any Significant Subsidiary to, enter into any arrangement with any person
(other than the Company, the Guarantor or a Significant Subsidiary), providing
for the leasing by the Company, the Guarantor or a Significant Subsidiary of any
assets which have been or are to be sold or transferred by the Company, the
Guarantor or such Significant Subsidiary to such person (a "Sale and Lease-Back
Transaction") unless; (i) such transaction involves a lease for a temporary
period not to exceed three years; (ii) such transaction is between the Company,
the Guarantor or a Significant Subsidiary and an affiliate of the Guarantor;
(iii) the Company or the Guarantor would be entitled to incur Debt secured by a
Lien on the assets or property involved in such transaction at least equal in
amount to the Attributable Debt with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the Securities, pursuant to
the limitation on Liens described above other than pursuant to the penultimate
paragraph thereof; (iv) such transaction is entered into within 90 days after
the initial acquisition by the Company or the Guarantor of the property subject
to such transaction; (v) after giving effect thereto, the aggregate amount of
all Attributable Debt with respect to all such Sale and Lease-Back Transactions
does not exceed 10% of Consolidated Net Tangible Assets; or (vi) the Company,
the Guarantor or a Significant Subsidiary within the twelve months preceding the
sale or transfer or the twelve months following the sale or transfer, regardless
of whether such sale or transfer may have been made by the Company, the
Guarantor or such Significant Subsidiary, applies in the case of a sale or
transfer for cash, an amount equal to the net proceeds thereof and, in the case
of a sale or transfer otherwise than for cash, an amount equal to the fair value
of the assets so leased at the time of entering into such arrangement (as
determined by the Board of Directors of the Company, the Guarantor or such
Significant Subsidiary), (a) to the retirement of debt, incurred or assumed by
the Company, the Guarantor or a Significant Subsidiary, which by its terms
matures at, or is extendible or renewable at the option of the obligor to, a
date more than twelve months after the date of incurring, assuming or
guaranteeing such debt or (b) to investment in any assets of the Company, the
Guarantor or any Significant Subsidiary.
SECTION 1006. Statement by Officers as to Default
The Guarantor will deliver to the Trustee within 120 days after the end of each fiscal year of the Guarantor a certificate from the principal executive, financial or accounting officer of the Guarantor, stating that in the course of the performance by such signer of his duties as an officer of the Guarantor he would normally have knowledge of any default by the Company or the Guarantor in the performance and observance of any of the covenants
contained in Sections 1001 to 1008, stating whether or not he has knowledge of any such default without regard to any period of grace or requirement of notice and, if so, specifying each such default of which such signer has knowledge and the nature thereof.
SECTION 1007. Waiver of Certain Covenants
The Company or the Guarantor may omit in any particular instance to comply with any term, provision or condition set forth in this Indenture with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, provided that no such waiver shall without the consent of each Holder (a) change the Stated Maturity upon which the principal of, or the premium, if any, or the interest on the Securities is due and payable, (b) reduce the principal amount thereof, the premium, if any, thereon or the rate of interest thereon, (c) change any obligation of the Company to pay Additional Amounts, (d) change any Place of Payment or the currency in which the principal of the Securities or any premium or the interest thereon is payable, (e) impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or (f) reduce the percentage in principal amount of the outstanding Securities of any series, the consent of whose Holders is required for any waiver of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences provided for in the Indenture. The Securities owned by the Company, the Guarantor or any of its Affiliates shall be deemed not to be outstanding for, among other purposes, consenting to any such waiver.
SECTION 1008. Further Assurances
The Company, the Guarantor and the Trustee shall execute and deliver all such other documents, instruments and agreements and do all such other acts and things as may be reasonably required to enable the Trustee to exercise and enforce its rights under this Indenture and under the documents, instruments and agreements required under this Indenture and to carry out the intent of this Indenture.
SECTION 1009. Payment of Additional Amounts
Unless the Securities of a particular series otherwise provide, all payments of principal and interest (including payments of discount and premium, if any) with respect to the Securities of a particular series shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within a Taxing Jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction, the Company or the Guarantor, as the case may be, shall pay to the Holder of such Securities such additional amounts in respect of such withholding or deduction as are necessary so that such Holder receives the amount that would have been due to such Holder in the absence of such withholding or deduction ("Additional Amounts"), except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such Gross-Up Taxes with respect to the Securities or any Guarantee, by reason of such Holder having some connection with the relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Taxing Jurisdiction) other than the mere holding of a Security or the receipt of principal and interest (including payments of discount and premium, if any) in respect thereof or in respect of the Guarantee; or
(b) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that such Holder would have been entitled to such Additional Amounts on presenting such Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in a Taxing Jurisdiction or, so long as the Securities of such series are listed on the Luxembourg Stock Exchange, in Luxembourg;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority; or
(e) to, or to a Person on behalf of, a Holder of a Registered Security that is not a Global Security issued pursuant to the request of any beneficial owner of interests in such Securities (an "Optional Definitive Security Request") during the continuance of an Event of Default if such Holder (or any predecessor Holder) was an owner requesting that such Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (e) above. If the Company or the Guarantor, as applicable, shall determine that Additional Amounts will not be payable for any of the foregoing reasons, the Company or the Guarantor, as applicable, will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
Reference in this Indenture or any Securities to principal, interest, discount or premium in respect of the Securities (or any payments pursuant to any Guarantee) shall be deemed also to refer to any Additional Amounts which may be payable as set forth in this Indenture or in the Securities.
At least 10 Business Days prior to the first Interest Payment Date (and at least 10 Business Days prior to each succeeding Interest Payment Date if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate), the Company will furnish to the Trustee and any Paying Agent an Officers' Certificate instructing the Trustee and any Paying Agent whether payments of principal of, or premium, if any, or interest on, the Securities due on such Interest Payment Date shall be without deduction
or withholding for or on account of any Gross-Up Taxes. If any such deduction or
withholding shall be required, prior to such Interest Payment Date the Company
will furnish the Trustee and any Paying Agent with an Officers' Certificate
which specifies the amount, if any, required to be withheld on such payment to
Holders and certifies that the Company shall pay such withholding or deduction.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold the Trustee and any Paying Agent harmless against, any loss, liability or
expense reasonably incurred without negligence, willful misconduct or bad faith
on its part, arising out of or in connection with actions taken or omitted by
the Trustee or any Paying Agent in reliance on any Officers' Certificate
furnished pursuant to this paragraph. Any Officers' Certificate required by this
Section 1009 to be provided to the Trustee and any Paying Agent shall be deemed
to be duly provided if telecopied to the Trustee and such Paying Agent.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of Gross-Up Taxes. Copies of such receipts shall be made available to the Holders of the Securities upon request.
SECTION 1010. Copies Available to Holders
Copies of this Indenture shall be available for inspection by the Holders on a Business Day during normal business hours at the principal office of the Company and at the Corporate Trust Office. In addition, if the Securities of any series are listed on the London Stock Exchange, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, copies of this Indenture, the Deposit Agreement, the Letter of Representations, the memorandum and articles of association of the Company and the most recent publicly available annual report of the Guarantor shall be made available for inspection by the Holders of such Securities on a Business Day during normal business hours at the offices of the paying agents and at the office of the listing agent required to be maintained by such exchange for so long as the Securities of such series are outstanding and are listed on such stock exchange.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified in or contemplated by Section 301 for Securities of any series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem: Notice to Trustee The election of the Company to redeem any Securities shall be authorized by a Board Resolution and evidenced by an Officers' Certificate. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or pursuant to an election by the Company which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed
If less than all the Securities of any series are to be redeemed, the particular securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions equal to the minimum authorized denomination for Securities of that series (or any integral multiple thereof) of the principal amount of Securities of such series or of a denomination larger than the minimum authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection for redemption if they are identified by certificate number in a written statement signed by an authorized officer of the Company and delivered to the Security Registrar at least 30 days prior to the Redemption Date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (b) an entity specifically identified in such written statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption
Unless otherwise specified in a supplemental indenture with respect to a series of Securities, notice of redemption shall be given not less than 30 days nor more than 60 days prior to the Redemption Date to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Principal Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date (to the extent that such amounts are not already on deposit at such time in accordance with the provisions of Sections 401, 403 or 1007).
SECTION 1106. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued and unpaid interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued and unpaid interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, and in the case of Registered Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part
Any Security (including any Global Security) which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee upon written direction shall
authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the security so surrendered; provided, that if a Global Security is so surrendered, the new Global Security shall be in a denomination equal to the unredeemed portion of the principal of the Global Security so surrendered.
SECTION 1108. Optional Redemption in the Event of Chance in Taxing Jurisdic- tion Tax Treatment
The Securities of any series may be redeemed at the election of the Company, as a whole, but not in part, by the giving of notice as provided in Section 1104, at a price equal to the outstanding principal amount thereof, together with Additional Amounts, if any, and accrued interest, if any, to the Redemption Date, if (a) the Company or the Guarantor satisfies the Trustee that it has or will become obligated to pay Additional Amounts on the Securities of such series, as a result of either (x) any change in, or amendment to, the laws or regulations of a Taxing Jurisdiction, or any change in the application or interpretation of such laws or regulations, which change or amendment becomes effective (subject to Section 801) on or after the date of original issuance of the Securities of such series, or (y) the issuance of definitive Registered Securities as the result of (i) DTC having notified the Company and the Book-Entry Depositary that it is unable or unwilling to continue to hold the Book-Entry Interests or at any time ceases to be a "clearing agency" registered as such under the Exchange Act and, in either case, a successor is not appointed by the Company within 120 days, (ii) the Book-Entry Depositary having notified the Company that it is unwilling or unable to continue as Book-Entry Depositary with respect to the Global Securities of such series and a successor Book-Entry Depositary is not appointed within 120 days or (iii) an Optional Definitive Security Request and (b) such obligation cannot be avoided by the Company or the Guarantor taking reasonable measures available to it; provided, however, that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company or the Guarantor would be obligated to pay such Additional Amounts were a payment in respect of the Securities then due. Prior to the publication of any notice of redemption of such Securities pursuant to this Indenture, the Company or the Guarantor will deliver to the Trustee an Officers' Certificate stating that the obligation to pay such Additional Amounts cannot be avoided by the Company or the Guarantor taking reasonable measures available to it, and the Trustee shall accept such certificate as sufficient evidence of the condition precedent set forth in clause (b) above, and such certificate shall be conclusive and binding on the Holders of the Securities of such series.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 310, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section 1202, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Company through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund Redemption Price specified in such Securities.
SECTION 1203. Redemption of Securities for Sinking Fund
Not less than 30 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying (a) the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, (b) whether or not
the Company intends to exercise its right, if any, to make an optional sinking
fund payment with respect to such series on the next ensuing sinking fund
payment date and, if so, the amount of such optional sinking fund payment, and
(c) the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202, and will also
deliver to the Trustee any Securities to be so delivered. Such written statement
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such 30th day, to deliver
such written statement and Securities specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect therefor and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section
1203.
Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
The Trustee shall not redeem or cause to be redeemed any Security of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a default in payment of interest with respect to Securities of that series or an Event of Default with respect to the Securities of that series except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default, shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 513 or the default or Event of Default cured on or before the 30th day preceding the sinking fund payment date, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section 1203 to the redemption of such Securities.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes of Meetings
A meeting of the Holders may be called at any time from time to time pursuant to this Article Thirteen for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to consent to the waiving of any Default hereunder and its consequence, or to take any other action authorized to be taken by Holders pursuant to Article Nine hereof;
(2) to remove the Trustee and appoint a successor trustee pursuant to Article Six hereof; or
(3) to consent to the execution of an indenture supplemental hereto pursuant to Section 902 hereof.
SECTION 1302. Place of Meetings
(a) The Trustee may at any time (upon not less than 21 days'
notice) call a meeting of Holders to be held at such time and at such place in
the location determined by the Trustee pursuant to Section 1302 hereof. Notice
of every meeting of Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to each Holder and published in the manner contemplated by
Section 106 hereof.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding, shall have requested the Trustee to call a meeting
of the Holders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first giving of the notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders in the amount above specified may
determine the time (not less than 21 days after notice is given) and the place
in the location determined by the Company or the Holders pursuant to this
Section 1302 for such meeting and may call such meeting to take any action
authorized in Section 1301 hereof by giving notice thereof as provided in
Section 1302(a) hereof.
SECTION 1303. Voting at Meetings
To be entitled to vote at any meeting of Holders, a Person shall be (i) a Holder or (ii) a Person appointed by an instrument in writing as proxy for a Holder or Holders by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons so entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel, and any representatives of the Company and its counsel.
SECTION 1304. Voting Rights, Conduct and Adjournment
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the holding of Securities of a series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities of a series shall be proved in the manner specified in Article Two hereof and the appointment of any proxy shall be proved in such manner as is deemed appropriate by the Trustee or by having the signature of the person executing the proxy witnessed or guaranteed by any bank, banker or trust company customarily authorized to certify to the holding of a security such as a Global Note.
(b) At any meeting of Holders, the representatives of Persons holding or representing Securities of a series in an aggregate principal amount sufficient under the appropriate provision of this Indenture to take action upon the business for the transaction of which such meeting was called shall constitute a quorum. Except as otherwise provided with respect to any required aggregate principal amount of Securities of a series required for the taking of any action pursuant to Article Nine hereof, in no event shall less than 75% of the votes given by Persons holding or representing Securities of such series at any meeting of Holders be sufficient to approve an action. Any meetings of Holders duly called pursuant to Section 1303 hereof may be adjourned from time to time by vote of the Holders (or proxies for the Holders) of a majority of the Securities of a series represented at the meeting and entitled to vote, whether or not a quorum shall be present; and the meeting may be held as so adjourned without further notice. No action at a meeting of Holders shall be effective
unless approved by Persons holding or representing Securities of a series in the aggregate principal amount required by the provision of this Indenture pursuant to which such action is being taken.
(c) At any meeting of Holders, each Holder or proxy shall be entitled to one vote for each $1,000 principal amount of outstanding Securities of a series held or represented.
SECTION 1305. Revocation of Consent by Holders
At any time prior to (but not after) the evidencing to the Trustee of the taking of any action at a meeting of Holders by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal Corporate Trust Office and upon proof of holding as provided herein, revoke such consent so far as concerns such Securities. Except as aforesaid any such consent given by the Holder of any Securities shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Securities and of any Securities issued in exchange therefore, in lieu thereof or upon transfer thereof, irrespective of whether or not any notation in regard thereto is made upon such Securities. Any action taken by the Holders of the percentage in aggregate principal amount of the Holders specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities.
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. Applicability of Article; Unconditional Guarantee
If, pursuant to Section 301, provision is made for the Guarantee of the Securities of any series by the Guarantor, then the provisions of this Article Fourteen, with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities, shall apply to such Securities. The Guarantor hereby fully and unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal of (including any amount due in respect of original issue discount), premium, if any, and interest in respect of such Security (and any Additional Amounts payable in respect thereof), and the due and punctual payment of any sinking fund payments provided for pursuant to terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such Security and of this Indenture, regardless of any defense, right of set-off or counterclaim that the Guarantor may have or assert, except, subject to the following paragraph, the defense of payment. The Guarantor's obligation to make a payment under this Article Fourteen may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Company to pay such amounts to the Holders.
To the extent permitted under applicable law, if any Holder or the Trustee is required by a final non-appealable judgment of any court or otherwise to return to either the Company or the Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company
or the Guarantor, any amount paid by either the Company or the Guarantor to such Holder or the Trustee, any Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. To the extent permitted under applicable law, the Guarantor further agrees that, as between the Guarantor, on the one hand. and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five for the purpose of any Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of any Guarantee.
The Company agrees that the proceeds from the issuance of the Securities of any series shall be loaned, directly or indirectly, to the Guarantor or any wholly-owned Subsidiary and that any such loan shall be evidenced by promissory notes. The Company agrees that any payment to the Holders by the Guarantor under the Guarantee with respect to the Securities of any series shall constitute an indirect payment by the Guarantor on, and shall reduce the principal of and premium, if any, and interest on, such promissory notes.
No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the Guarantee set forth in this Section 1401 by reason of his or its status as such stockholder, officer, director, employee or incorporator.
The Guarantee set forth in this Section 1401 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been executed by or on behalf of the Trustee by manual signature.
SECTION 1402. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this guarantee and of any liability to which it applies or may apply, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the Trustee or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.
SECTION 1403. Guarantor Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under this Article Fourteen shall in no way be affected or impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Company of any express or implied agreement, covenant, term or condition relating to the Securities to be performed or observed by the Company;
(b) the extension of time for the payment by the Company of all or any portion of the interest on the Securities, the Redemption Price of any other sums payable under the terms of the Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Securities;
(c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Securities, or any action on the part of the Company granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than, subject to Section 1401, payment of the underlying obligation), it being the intent of this Article Fourteen that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 1404. Execution of Guarantee
To evidence its guarantee to the Holders specified in Section 1401, the Guarantor hereby agrees to execute the notation of the Guarantee in substantially the form set forth in Section 204 to be endorsed on each Security authenticated and delivered by the Trustee. The Guarantor hereby agrees that its Guarantee set forth in Section 1401 shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee. Each such notation of the Guarantee shall be signed on behalf of the Guarantor, by a director or officer, prior to the authentication of the Security on which it is endorsed, and the delivery of such Security by the Trustee, after the due authentication thereof by the Trustee hereunder, shall constitute due delivery of the Guarantee on behalf of the Guarantor. Such signature upon the notation of the Guarantee may be a manual or facsimile signature of any present, past or future such director or officer and may be imprinted or otherwise reproduced below the notation of the Guarantee, and in case any such director or officer who shall have signed the notation of the Guarantee shall cease to be such director or officer before the Security on which such notation is endorsed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed the notation of the Guarantee had not ceased to be such director or officer of the Guarantor.
SECTION 1405. Subrogation
The Guarantor hereby waives all rights (if any) of subrogation against the Company in respect of any amounts paid to the Holders by the Guarantor under this Article Fourteen with respect to any series of Securities. Furthermore, the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights which it may acquire by way of any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Article Fourteen with respect to a series of Securities if, at any time of such payment, any amounts are due and unpaid under such series of Securities. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 1406. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Company with respect to the Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make payments pursuant to the terms of the Securities notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 1403 hereof.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 1501. Consent to Jurisdiction: Appointment of Agent to Accept Service of Process: Etc.
(a) Each of the Company and the Guarantor irrevocably consents and agrees, for the benefit of the Holders from time to time of the Securities and the Trustee, that any civil legal action, suit or proceeding against it with respect to its obligations, liabilities or any other matter arising out of or in connection with this Indenture, the Securities or any Guarantee may be brought in the Supreme Court of New York, New York County or the United States District Court for the Southern District of New York and any appellate court from either thereof and, until amounts due and to become due in respect of the Securities or any Guarantee have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any legal action, suit or proceeding for itself and in respect of its properties, assets and revenues and agrees to file such consents with such authorities as may be required to irrevocably evidence such agreement.
(b) Each of the Company and the Guarantor has irrevocably designated, appointed, and empowered CT Corporation System, acting through its office at 111 Eighth Avenue, New York, New York 10011, as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and its properties, assets and revenues, service of any and all legal process, summonses, notices and documents which may be served in any legal action, suit or proceeding brought against the Company or the Guarantor in any United States or state court. If for any reason such designee, appointee and agent hereunder shall cease to be available to act as such, each of the Company and the
Guarantor agrees to designate a new designee, appointee and agent in the Borough
of Manhattan, The City of New York on the terms and for the purposes of this
Section 1501 satisfactory to the Trustee. Each of the Company and the Guarantor
further hereby irrevocably consents and agrees to the service of any and all
legal process, summonses, notices and documents in any legal action, suit or
proceeding against the Company or the Guarantor by serving a copy thereof upon
the relevant agent for service of process referred to in this Section 1501
(whether or not the appointment of such agent shall for any reason prove to be
ineffective or such agent shall accept or acknowledge such service) or by
mailing copies thereof by registered or certified air mail, postage prepaid, to
each of the Company or the Guarantor at its address specified in or designated
pursuant to this Indenture. Each of the Company and the Guarantor agrees that
the failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of the holders of the
Securities and the Trustee, to serve any such legal process, summons, notices
and documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Company or the Guarantor or to bring legal actions, suits
or proceedings against the Company or the Guarantor in such other jurisdictions,
and in such manner, as may be permitted by applicable law. Each of the Company
and the Guarantor irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Indenture brought in the Supreme Court of New York, New
York County or the United States District Court for the Southern District of New
York and any appellate court from either thereof and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) To the extent that the Company or the Guarantor may in any jurisdiction claim for itself or its assets immunity (to the extent such immunity may now or hereafter exist, whether on the grounds of sovereign immunity or otherwise) from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process (whether through service or notice or otherwise), and to the extent that in any such jurisdiction there may be attributed to itself or its assets such immunity (whether or not claimed), the Company and the Guarantor irrevocably agrees with respect to any matter arising under the Indenture for the benefit of the Holders from time to time of the Securities, not to claim, and irrevocably waives, such immunity to the full extent permitted by the laws of such jurisdiction.
(d) If for the purpose of obtaining a judgment or order in any court it is necessary to convert a sum due hereunder to the holder of any Security from U.S. dollars into another currency, each of the Company and the Guarantor agrees, and each holder by holding such Security will be deemed to have agreed, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures such Holder could purchase U.S. dollars with such other currency in The City of New York on the Business Day preceding the day on which final judgment is given.
(e) The obligations of the Company and the Guarantor in respect of any sum payable by it to the holder of a Security shall, notwithstanding any judgment or order in a currency (the "judgment currency") other than U.S. dollars, be discharged only to the extent that on the Business
Day following receipt by the Holder of such security of any sum, adjudged to be so due in the judgment currency, the Holder of such Security may in accordance with normal banking procedures purchase U.S. dollars with the judgment currency; if the amount of U.S. dollars so purchased is less than the sum originally due to the holder of such Security in the judgment currency (determined in the manner set forth in the preceding paragraph), each of the Company and the Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Holder of such Security against such loss, and if the amount of the U.S. dollars so purchased exceeds the sum originally due to the Holder of such Security, such Holder agrees to remit to the Company or the Guarantor such excess, provided that such Holder shall have no obligation to remit any such excess as long as the Company or the Guarantor shall have failed to pay such Holder any obligations due and payable under such Security, in which case such excess may be applied to such obligations of the Company or the Guarantor under such Security in accordance with the terms thereof. The foregoing indemnity shall constitute a separate and independent obligation of the Company and the Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.
SECTION 1502. Counterparts
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
YORKSHIRE POWER FINANCE 2 LIMITED
By:____________________________
Authorized Signatory
YORKSHIRE POWER GROUP LIMITED
By:____________________________
Authorized Signatory
THE BANK OF NEW YORK, as Trustee,
Principal Paying Agent, Security
Registrar and Transfer Agent
By:____________________________
Title:
EXHIBIT 10.79
YORKSHIRE POWER FINANCE 2 LIMITED, as Issuer
and
YORKSHIRE POWER GROUP LIMITED, as Guarantor
and
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Registrar and Transfer Agent
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 16, 2000
Reset Senior Notes Due February 15, 2020
FIRST SUPPLEMENTAL INDENTURE, dated as of February 16, 2000 (this "First Supplemental Indenture"), among YORKSHIRE POWER FINANCE 2 LIMITED, a limited liability company organized under the laws of the Cayman Islands, as issuer (the "Company"), YORKSHIRE POWER GROUP LIMITED, a private limited company incorporated under the laws of England and Wales, as guarantor (the "Guarantor"), and THE BANK OF NEW YORK, as Trustee, Principal Paying Agent, Security Registrar and Transfer Agent under the Original Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, each of the Company and the Guarantor has heretofore executed and delivered to the Trustee an indenture dated as of February 1, 2000, (hereinafter called the "Original Indenture"), to provide for the issuance from time to time of certain of the Company's unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), the forms and terms of which are to be established as set forth in Sections 201 and 301 of the Original Indenture;
WHEREAS, Section 901 of the Original Indenture provides, among other things, that the Company, the Guarantor and the Trustee may enter into indentures supplemental to the Original Indenture for, among other things, the purpose of establishing the forms and terms of the Securities of any series as permitted by Sections 201 and 301 of the Original Indenture and of appointing an Authenticating Agent with respect to the Securities of any series;
WHEREAS, the Company desires to create a series of the Securities in an aggregate principal amount of (pound)155,000,000 to be designated Reset Senior Notes Due February 15, 2020 (the "Senior Notes"), and all action on the part of the Company necessary to authorize the issuance of the Senior Notes under the Original Indenture and this First Supplemental Indenture has been duly taken;
WHEREAS, all acts and things necessary to make the Senior Notes, when executed by the Company and authenticated and delivered by the Trustee as in the Original Indenture provided, the valid and binding obligations of the Company and to constitute these presents a valid and binding supplemental indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance and purchase of the Senior Notes by the holders thereof and of the acceptance of this trust by the Trustee, each of the Company and the Guarantor covenants and agrees with the Trustee, for the equal benefit of holders of the Senior Notes, as follows:
ARTICLE ONE
Definitions
The use of terms and expressions herein is in accordance with the definitions, uses and constructions contained in the Original Indenture and the forms of Securities attached hereto as Exhibits A and B. In addition, for
all purposes of this First Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise expressly requires, the following terms shall have the respective meanings assigned to them as follows and shall he construed as if defined in Article One of the Original Indenture:
"Agent Bank" means The Bank of New York as designated by the Company in the Interest Calculation Agency Agreement, dated as of February 1, 2000, among the Company, the Guarantor and the Agent Bank.
"Book-Entry Depositary" means The Bank of New York as designated by the Company in the Deposit Agreement until a successor shall have become such pursuant to the applicable provisions of the Deposit Agreement, and thereafter "Book-Entry Depositary" shall mean such successor Book-Entry Depositary or the nominee or custodian of either.
"Business Day" means each day that is not a Saturday, Sunday or a day on which banking institutions or foreign exchange markets in New York City and London are authorized or obligated by law to remain closed.
"Callholder" means UBS AG, London Branch, as holder of the call option under the Call Option Agreement.
"Call Option Agreement" means the confirmation, dated February 9, 2000, between the Pass-Through Trustee and the Callholder, pursuant to the ISDA Master Agreement, providing a call option to the Callholder.
"Conversion Event" means the declaration, at any time prior to (but excluding) the Initial Reset Date, of the principal amount of the Senior Notes to be due and payable immediately in accordance with Section 502 of the Original Indenture as a result of the occurrence of an Event of Default.
"Definitive Registered Securities" means the Senior Notes substantially in the form of Exhibit B to this First Supplemental Indenture.
"Deposit Agreement" means the Deposit Agreement, dated as of February 1, 2000, among the Company, the Book-Entry Depositary and the holders and beneficial owners from time to time of interests in the Book-Entry Interests issued thereunder.
"DTC" means The Depository Trust Company, New York, New York, or its successors.
"Fixed Rate Determination Date" means the tenth Business Day prior to the Fixed Rate Reset Date.
"Fixed Rate Reset Date" means the Reset Date corresponding to the Floating Rate Period Termination Date or the Initial Reset Date, as applicable.
"Floating Period Interest Rate" means, with respect to any Floating Rate Reset Period, the per annum interest rate with respect to the Senior Notes for such Floating Rate Reset Period determined by the Remarketing Agent in accordance with the Remarketing Agreement.
"Floating Rate Option" means the right of the Company to, at its option, reset the interest rate on the Senior Notes on the Initial Reset Date to the Floating Period Interest Rate for each Floating Rate Reset Period.
"Floating Rate Period" means the period from and including the Initial Reset Date to but excluding the Floating Rate Period Termination Date.
"Floating Rate Period Termination Date" means February 15, 2006 (unless such date is not a Business Day, in which case the next succeeding day that is a Business Day) or, if the Company elects to earlier terminate the Floating Rate Period, an earlier Reset Date, provided that the Company gives notice of such election to the Trustee and the Remarketing Agent no later than the 17th Business Day prior to such earlier Reset Date in accordance with the Remarketing Agreement.
"Floating Rate Purchase Price" means the purchase price to be paid by any Floating Rate Dealer for the Senior Notes on the Initial Reset Date, which shall be equal to (i) the principal amount of the Senior Notes plus (ii) the Senior Note Premium.
"Floating Rate Reset Period" means the period from and including the Initial Reset Date to but excluding the next succeeding Reset Date and thereafter the period from and including such next succeeding Reset Date to but excluding the next succeeding Reset Date; provided, however, that the final Floating Rate Reset Period shall extend to but exclude the Floating Rate Period Termination Date.
"Floating Rate Spread Determination Date" means the tenth Business Day prior to the Initial Reset Date.
"Global Securities" means Global Bearer Securities, evidencing the Senior Notes, issued to the Book-Entry Depositary substantially in the form of Exhibit A to this First Supplemental Indenture.
"Initial Reset Date" means February 15, 2005 (unless such date is not a Business Day, in which case the next succeeding day that is a Business Day).
"Interest Accrual Period" means the period from and including the preceding Interest Payment Date (or, in the case of the first such period, from and including the date of initial issuance of the Senior Notes) to but excluding the current Interest Payment Date.
"Interest Payment Date" means, in the case of interest accruing on the Senior Notes (i) during the period from and including the date of initial issuance of the Senior Notes to but excluding the Initial Reset Date, each February 15 and August 15 in such period and the Initial Reset Date (unless any such date is not a Business Day and a Conversion Event has not occurred, in which case the next succeeding day that is a Business Day), (ii) during the period from and including the Fixed Rate Reset Date to but excluding the final maturity of the Senior Notes, each February 15 and August 15 occurring after the Initial Reset Date and (iii) during each Floating Rate Reset Period in the Floating Rate Period, the Reset Date next succeeding such Floating Rate Reset Period.
"Interest Rate to Maturity" means the per annum interest rate with respect to the Senior Notes from and including the Fixed Rate Reset Date to but excluding the final maturity of the Senior Notes equal to the rate that would amortize the Senior Note Premium determined by the Remarketing Agent pursuant to the Remarketing Agreement.
"ISDA Master Agreement" means the ISDA Master Agreement dated as of February 1, 2000 between UBS AG, London Branch and the Pass-Through Trustee, as supplemented and amended by the Schedule thereto.
"Pass-Through Trustee" means The Bank of New York, as trustee of the Yorkshire Power Pass-Through Asset Trust 2000-1.
"Reference Banks" means the Agent Bank and any other four reference dealers selected by the Agent Bank and agreed to by the Company.
"Regulation S" means Regulation S under the Securities Act, as such Regulation may be amended from time to time, or under any similar rules or regulations hereafter adopted by the Commission.
"Remarketing Agreement" means the Remarketing Agreement dated as of February 1, 2000 among the Company, the Guarantor and the Remarketing Agent.
"Remarketing Agent" means UBS AG, London Branch or any affiliate thereof or its successor or assigns.
"Reset Date" means the Initial Reset Date and, as applicable, May 15, 2005, August 15, 2005, November 15, 2005 or February 15, 2006 (unless any such date is not a Business Day, in which case the next succeeding day that is a Business Day).
"Restricted Securities Legend" means a legend substantially in the form of the legend contained in the form of Global Security set forth in Exhibit A hereto.
"Restricted Security" means the Senior Notes that bear or are required to bear the Restricted Securities Legend.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be amended from time to time, or under any similar rules or regulation hereafter adopted by the Commission.
"Screen Rate" means the rate for six-month Sterling deposits displayed on the Bridge/Telerate Page No. 3750 (or such replacement page on that service which displays the information).
"Senior Note Premium" means the premium on the Senior Notes determined by the Remarketing Agent pursuant to the Remarketing Agreement.
ARTICLE TWO
Terms and Issuance of the Senior Notes
SECTION 201. Issue of Securities.
(a) A series of Securities which shall be designated the "Reset Senior Notes Due February 15, 2020" shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to the terms, conditions and covenants of the Original Indenture and this First Supplemental Indenture (including the forms of the Senior Notes set forth in Exhibits A and B hereto).
(b) The aggregate principal amount of the Senior Notes which
may be authenticated and delivered under the First Supplemental Indenture shall
not, except as permitted by the provisions of the Original Indenture, exceed
(pound)155,000,000; provided, however, that, upon the occurrence of a Conversion
Event, such aggregate principal amount shall not, except as permitted by the
provisions of the Original Indenture, exceed $250,000,000.
(c) On or after the Initial Reset Date, the Senior Notes shall
be issuable in minimum denominations of (pound)10,000 and integral multiples of
(pound)1,000 in excess thereof. Prior to the Initial Reset Date, (i) so long as
the Senior Notes are issued in the form of one or more Global Securities, the
Senior Notes shall be issuable in any denomination or denominations requested by
the Book-Entry Depositary and (ii) if the Senior Notes are issued in the form of
Definitive Registered Securities, the Senior Notes shall be issuable in minimum
denominations of (pound)10,000 and integral multiples of (pound)1,000 in excess
thereof, unless such Definitive Registered Securities are issued as a result of
an Optional Definitive Security Request, in which case such Senior Notes shall
be issuable in minimum denominations of $100,000 and integral multiples of
$1,000 in excess thereof.
(d) The Senior Notes shall have a final maturity date of February 15, 2020.
(e) The Regular Record Date for the Senior Notes shall be 15 calendar days immediately prior to each Interest Payment Date.
SECTION 202. Interest through Initial Reset Date.
(a) The per annum interest rate on the Senior Notes for each Interest Accrual Period through the Initial Reset Date will be reset semi- annually as described in this Section 202; provided, however, that, upon the occurrence of a Conversion Event, the provisions of Section 203 shall become effective.
(b) Interest on the Senior Notes through the Initial Reset Date will be payable semi-annually on each Interest Payment Date, commencing on the Interest Payment Date next succeeding the date of initial issuance of the Senior Notes; provided, however, that, upon a Conversion Event, if any such Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay).
(c) The rate of interest payable from time to time through the Initial Reset Date in respect of the Senior Notes for any Interest Accrual Period (the "Rate of Interest") will be determined on the basis of the following provisions:
(i) on the first day of such Interest Accrual Period (the "Interest Determination Date"), the Agent Bank will determine the Screen Rate at or about 11:00 a.m. (London time) on the Interest Determination Date. If such Screen Rate is unavailable, the Agent Bank will request the principal London office of each of the Reference Banks to provide the Agent Bank with its offered quotation to leading banks for Sterling deposits in the London interbank market for such Interest Accrual Period at or about 11:00 a.m. (London time) on the Interest Determination Date. The Rate of Interest for such Interest Accrual Period shall be such Screen Rate plus 0.805% per annum (the "Margin") or, if such Screen Rate is unavailable, the arithmetic average (rounded upwards if necessary to the nearest 1/16th of 1%) of the offered quotations provided by the Reference Banks (excluding the highest and lowest (or, in either case, if more than one, then only one of them) of such quotations) plus the Margin;
(ii) if on the Interest Determination Date such Screen Rate is unavailable and only four of the Reference Banks provide offered quotations, the Rate of Interest for such Interest Accrual Period shall be determined in accordance with the provisions of paragraph (i) above on the basis of the offered quotations of those Reference Banks providing the offered quotations (excluding the highest and lowest of such quotations as provided in paragraph (i) above);
(iii) if on the Interest Determination Date such Screen Rate is unavailable and only two or three of the Reference Banks provide offered quotations, the Rate of Interest for such Interest Accrual Period shall be determined in. accordance with the provisions of paragraph (i) above on the basis of the offered quotations of those Reference Banks providing the offered quotations (but without excluding the highest and lowest of such quotations as provided in paragraph (i) above); and
(iv) if on the Interest Determination Date such Screen Rate is unavailable and only one or none of the Reference Banks provides an offered quotation, then the Rate of Interest for such Interest Accrual Period shall be (a) the Rate of Interest in effect for that Interest Accrual Period to which paragraph (i), (ii) or (iii) above shall have applied which last preceded such Interest Accrual Period or (b) if determinable and if higher, the Reserve Interest Rate (as defined below). The "Reserve Interest Rate" shall be the rate per annum which the Agent Bank determines to be either (A) the arithmetic average (rounded upward if necessary to the nearest 1/16th of 1%) of the Sterling lending rates for loans in an amount approximately equal to the principal amount of the Senior Notes which London banks selected by the Agent Bank are quoting, at or about 11:00 a.m. (London time) on the Interest Determination Date, for such Interest Accrual Period, to the Reference Banks or those of them (being at least two in number) to which the quotations are, in the opinion of the Agent Bank, being so made plus the Margin or (B) if the Agent Bank cannot determine the arithmetic average, the lowest Sterling lending rate which four London banks selected by the Agent Bank are quoting, on the Interest Determination Date, for such Interest Accrual Period, to leading European banks plus the Margin.
(d) The Agent Bank shall, as soon as practicable after 11:00
a.m. (London time) on each Interest Determination Date, but in no event later
than the third Business Day thereafter, determine the Sterling amount payable in
respect of interest on the principal amount of the Senior Notes (the "Interest
Amount") for the relevant Interest Accrual Period. The Interest Amount for any
Interest Accrual Period shall be determined by (i) applying the Rate of Interest
for such Interest Accrual Period to the principal amount of the Senior Notes and
(ii) multiplying that amount by the actual number of days in such Interest
Accrual Period divided by 365 (or if such Interest Accrual Period ends after
February 28 in a leap year, 366) expressed as a decimal and rounded upward if
necessary to the nearest 1/16th of 1%.
(e) All determinations, certificates, calculations, quotations and decisions given, expressed, made or obtained for the purposes of the pro- visions of this Section 202, whether by the Reference Banks (or any of them) or the Agent Bank, will (in the absence of willful default, bad faith or manifest error) be binding on the Company, the Guarantor, the Reference Banks, the Agent Bank, the Paying Agent and all holders of Senior Notes, and (in the absence as referred to above) no liability to the Company, the Guarantor or the holders of Senior Notes shall attach to the Reference Banks or the Agent Bank in connection with the exercise or non-exercise by them of their powers, duties and discretions under this Section 202.
SECTION 203. Conversion Event.
(a) Upon the occurrence of a Conversion Event, then automatically (i) the aggregate principal amount of the Senior Notes shall convert to $250,000,000 effective from the date of the immediately preceding Interest Payment Date prior to the occurrence of such Conversion Event, (ii) the interest rate on the Senior Notes shall convert to 8.25% per annum effective from the date of the immediately preceding Interest Payment Date prior to the occurrence of such Conversion Event and (iii) such interest rate shall be calculated on the basis of a 360-day year of twelve 30-day months.
(b) Notwithstanding anything in Section 502 of the Original Indenture to the contrary, the aggregate principal amount of the Outstanding Senior Notes that shall become immediately due and payable upon a Conversion Event shall be as set forth in clause (i) of Section 203(a) hereof.
(c) Upon a Conversion Event, the Trustee shall provide notice by first class mail within 15 calendar days after the occurrence of such Conversion Event (or if the declaration of acceleration relating to such Conversion Event shall have been given by holders of the Senior Notes, after the date on which the Trustee shall receive notice of such acceleration) of the information set forth in this Section 203 to any securities exchange on which the Senior Notes may then be listed and to the holder of the Senior Notes.
SECTION 204. Interest after Initial Reset Date.
(a) Interest Rate to Maturity.
(i) In accordance with the procedures established in the Remarketing Agreement and subject to Section 212, the interest rate in effect with respect to the Senior Notes immediately prior to the Initial Reset Date shall be reset on the Initial Reset Date to equal the Interest Rate to Maturity,
which shall be effective from and including the Initial Reset Date to but
excluding the final maturity of the Senior Notes, unless the Company shall
exercise the Floating Rate Option in accordance with paragraph (b) of this
Section 204. If the Company shall have so exercised the Floating Rate Option,
then the Floating Period Interest Rate shall be reset in accordance with the
Remarketing Agreement on the Reset Date corresponding to the Floating Rate
Period Termination Date to equal the Interest Rate to Maturity, which shall be
effective from and including such Reset Date to but excluding the final maturity
of the Senior Notes.
(ii) During the period from and including the Fixed Rate Reset Date to but excluding the final maturity of the Senior Notes, interest on the Senior Notes shall accrue on the principal amount of the Senior Notes at the Interest Rate to Maturity and shall be payable semi-annually on each Interest Payment Date, commencing with the first such Interest Payment Date following the Fixed Rate Reset Date; provided, however, that, if any such Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay). Interest on the Senior Notes from the Fixed Rate Reset Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
(b) Floating Rate Period.
(i) In accordance with procedures established in the Remarketing Agreement and subject to Section 212, if the Company exercises the Floating Rate Option no later than the seventh Business Day prior to the Floating Rate Spread Determination Date by providing notice to the Trustee and Remarketing Agent, then the Senior Notes shall bear interest at the Floating Period Interest Rate for each Floating Rate Reset Period in the Floating Rate Period.
(ii) During each Floating Rate Reset Period in the Floating Rate Period, interest on the Senior Notes shall accrue on the Floating Rate Purchase Price at the Floating Period Interest Rate for such Floating Rate Reset Period and shall be payable quarterly on each Interest Payment Date, commencing with the first such Interest Payment Date following the Initial Reset Date. The Interest Amount for such Floating Rate Reset Period shall be determined by (A) applying the Floating Period Interest Rate for such Floating Rate Reset Period to the Floating Rate Purchase Price and (B) multiplying that amount by the actual number of days in such Floating Rate Reset Period divided by 365 (or, if such Floating Rate Reset Period ends after February 28 in a leap year, 366) expressed as a decimal and rounded upward if necessary to the nearest 1/16th of 1%.
(c) Notice.
Subject to Section 212, the Remarketing Agent shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission) by 4:00 p.m. (London time),
(i) on the Fixed Rate Determination Date of the Interest Rate to Maturity, which
shall be effective from and including the Fixed Rate Reset Date and (ii) on each
Reset Date, if the Company elects the Floating Rate Option, of the Floating
Period Interest Rate for the Floating Rate Reset Period beginning on such Reset
Date, which shall be effective from and including such Reset Date. Any such
notification by the Remarketing Agent, absent manifest error, shall be binding
and conclusive upon the holders of beneficial interests in the Senior Notes, the
Company, the Guarantor and the Trustee.
SECTION 205. Limitation on Liens. The covenant provided by Section 1004 of the Original Indenture shall be applicable to the Senior Notes.
SECTION 206. Limitation on Sale and Lease-Back Trans- actions. The covenant provided by Section 1005 of the Original Indenture shall be applicable to the Senior Notes.
SECTION 207. Guarantee. The Guarantee provided by Article Fourteen of the Original Indenture shall be applicable to the Senior Notes.
SECTION 208. Place of Payment.
(a) The Place of Payment in respect of the Senior Notes will be in New York, New York, initially the Corporate Trust Office of The Bank of New York, and, for so long as the Senior Notes are listed on the Luxembourg Stock Exchange, in Luxembourg, initially the corporate trust office of Banque Generale du Luxembourg S.A., which at the date hereof, is located at 50 Avenue J. F. Kennedy, L-2951 Luxembourg.
(b) The Trustee shall make Sterling-denominated payments on the Senior Notes through a London-based account of the Trustee.
SECTION 209. Issuance of Global Securities. Each of the Senior Notes shall be issued as one or more Global Securities and delivered by the Trustee to the Book-Entry Depositary, as the Holder thereof, or a nominee or custodian therefor, to be held by the Book-Entry Depositary pursuant to the Deposit Agreement. Definitive Registered Securities shall only be issued by the Company in exchange for the Global Securities in the circumstances set forth in the Global Securities. The forms of the Global Securities and the Definitive Registered Securities shall be substantially in the forms of Exhibits A and B, respectively, attached hereto, the terms of which are herein incorporated by reference and which are part of this First Supplemental Indenture. The Senior Notes offered and sold in their initial distribution in reliance on Rule 144A shall initially be issued in the form of one or more separate Global Securities (each, a "Rule 144A Global Security"). The Senior Notes offered and sold in their initial distribution in reliance on Regulation S shall initially be issued in the form of one or more separate Global Securities (each, a "Regulation S Global Security").
SECTION 210. Transfer Restrictions.
(a) Except as otherwise determined by the Company in accordance with applicable law as set forth below, the Senior Notes shall bear the Restricted Securities Legend and may not be transferred except in compliance with the Restricted Securities Legend. Unless with respect to the whole or any portion of any Restricted Security the Company determines otherwise in accordance with applicable law, the Restricted Securities Legend borne by such Restricted Security shall be removed by the Company (i) in the case of any Rule 144A Global Security or any Definitive Registered Security issued in exchange for an interest therein, upon presentation to the Trustee of such Restricted Security by the Holder thereof at any time on or after the occurrence of the "Resale Restriction Termination Date" on such Legend and (ii) in the case of any Regulation S Global Security or any Definitive Registered Security issued in exchange for an interest therein, upon presentation to the Trustee of such
Restricted Security by the Holder thereof at any time on or after the expiration of the "distribution compliance period" (within the meaning of Regulation S).
(b) If a holder of a beneficial interest in a Rule 144A Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Regulation S Global Security, or if a holder of a beneficial interest in a Regulation S Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Rule 144A Global Security, upon receipt by the Trustee of (A) written instructions given in accordance with the rules and procedures of DTC (together with, as applicable, the rules and procedures of The Euroclear System and Clearstream Banking, societe anonyme, the "Applicable Procedures") from the applicable Participant directing the Book-Entry Depositary to cause to be credited to another account of a Participant a beneficial interest in such Regulation S Global Security or Rule 144A Global Security (as the case may be) equal to that of the beneficial interest in such Rule 144A Global Security or Regulation S Global Security (as the case may be) to be so transferred, (B) a written order given in accordance with the Applicable Procedures containing information regarding such other account, as well as the account of The Euroclear System or Clearstream Banking, societe anonyme (as the case may be), for which such other account is held, to be credited with, and the account of such applicable Participant to be debited for, such beneficial interest and (C) a certificate satisfactory to the Company, the Guarantor and the Trustee, as to such transfer's compliance with the registration requirements of the Securities Act, given by the transferor of such beneficial interest, the Trustee shall (1) reduce or increase (as the case may be) the principal amount of such Rule 144A Global Security, and increase or reduce (as the case maybe) the principal amount of such Regulation S Global Security, in each case by an amount equal to the principal amount of the beneficial interest in such Rule 144A Global Security or Regulation S Global Security (as the case may be) to be so transferred, as evidenced by appropriate endorsements on Schedule A to each such Global Security, (2) instruct the Book-Entry Depositary to make a corresponding reduction or increase (as the case may be) to the Book-Entry Interests relating to such Global Security and (3) cause the Book-Entry Depositary to instruct DTC to credit and debit such beneficial interests to the respective accounts specified in the instructions referred to above.
SECTION 211. Mandatory Tender.
(a) If the Callholder shall have purchased the Senior Notes pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Senior Notes shall be automatically tendered, or deemed tendered, by the Holders thereof to the Remarketing Agent for purchase on the Floating Rate Period Termination Date. On the Reset Date corresponding to the Floating Rate Period Termination Date, the interest rate on the Senior Notes shall be reset to equal the Interest Rate to Maturity in accordance with, and the Senior Notes shall be remarketed pursuant to, the Remarketing Agreement.
(b) The purchase price for the Senior Notes tendered pursuant to paragraph (a) of this Section 211 shall equal 100% of the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date. If for any reason the Remarketing Agent does not purchase all of the Senior Notes on the Floating Rate Period Termination Date, the Company shall redeem the Senior Notes on the Floating Rate Period Termination Date at a redemption price equal to 100% of the
Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date. If the Remarketing Agent elects to purchase the Senior Notes, such obligation of the Remarketing Agent is subject to the conditions set forth in the Remarketing Agreement.
SECTION 212. Redemption
(a) Early Redemption Right of Holder.
(i) In the event that the Callholder (A) has not given notice on or before January 10, 2005 of its intention to exercise the call option under the Call Option Agreement or (B) fails to pay on or before the Business Day next preceding the Early Redemption Date (as defined below) the call price required under the Call Option Agreement, the Company shall redeem the Senior Notes on February 15, 2005 (such date, unless it is not a Business Day, in which case the next succeeding day that is a Business Day, the "Early Redemption Date"), in whole but not in part, at a price equal to 100% of the aggregate principal amount of the Senior Notes plus accrued and unpaid interest thereon to but excluding the Early Redemption Date, upon written notice by 5:00 p.m. (London time) on the Business Day next preceding the Early Redemption Date from the Book-Entry Depositary, as holder of the Senior Notes.
(ii) Any written notice given by the Book-Entry Depository, as holder of the Senior Notes, pursuant to paragraph (a) of this Section 212 shall be irrevocable; provided, however, that if prior to the Early Redemption Date an Event of Default shall have occurred and be continuing, such holder, at its option, may elect by written notice to the Company, to withdraw the instructions given pursuant to this Section 212 and instead declare the Senior Notes to be due and payable pursuant to Section 502 of the Original Indenture.
(iii) Sections 1102 and 1104 of the Original Indenture shall not apply to any redemption pursuant to paragraph (a) of this Section 212.
(b) Mandatory Redemption.
If the Callholder shall have purchased the Senior Notes pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Company shall be required to redeem the Senior Notes, in whole but not in part, on any Reset Date following the Initial Reset Date at a redemption price equal to the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding such Reset Date in the event that (i) the Remarketing Agent for any reason does not notify the Company of the Floating Period Interest Rate for the Floating Rate Reset Period beginning on such Reset Date by 4:00 p.m. (London time) on such Reset Date or of the Interest Rate to Maturity by 4:00 p.m., (London time) on the Fixed Rate Determination Date, as applicable, (ii) prior to any such Reset Date, the Remarketing Agent resigns and no successor has been appointed on or before such Reset Date or Determination Date, as applicable, (iii) the Remarketing Agent elects to terminate the Remarketing Agreement in accordance with its terms, (iv) the Remarketing Agent for any reason does not elect (by notice to the Company and the Trustee not later than the Fixed Rate Determination Date) to purchase the Senior Notes for remarketing on the Floating Rate Period Termination Date, (v) the Remarketing Agent for any reason does not deliver the purchase price of the Senior Notes to or through DTC on or before the Floating Rate Period Termination Date as provided in the Remarketing Agreement or (vi) the Company for any reason
fails to redeem the Senior Notes following the Company's election to effect such redemption as set forth in paragraph (c) of this Section 212.
(c) Optional Redemption.
If the Callholder shall have purchased the Senior Notes pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Company shall notify the Callholder, the Remarketing Agent and the Trustee, not later than the Business Day immediately preceding the Floating Rate Period Termination Date, if the Company irrevocably elects to exercise its right to redeem the Senior Notes, in whole but not in part, from the Remarketing Agent on the Floating Rate Period Termination Date. If the Company elects to redeem the Senior Notes, the Company shall redeem the Senior Notes in whole at a redemption price equal to the Floating Rate Purchase Price plus accrued and unpaid interest, if any thereon to but excluding the Floating Rate Period Termination Date.
d) Optional Tax Redemption.
The redemption provisions of Section 1108 of the Original Indenture shall be applicable to the Senior Notes.
ARTICLE THREE
Authenticating Agent; Book-Entry Depositary; Exchange Rate Agreement
SECTION 301. Authenticating Agent; Book-Entry Depositary. The Bank of New York, a New York banking corporation, and its successors are hereby appointed Authenticating Agent and Book-Entry Depositary with respect to the Senior Notes.
SECTION 302. Exchange Rate Agency Agreement. The Company and the Guarantor hereby agree to appoint the Trustee as an agent under an exchange rate agency agreement, and will enter into such an agreement with the Trustee, and the Trustee hereby agrees to accept such appointment, provided that such agreement shall have such terms and provisions as are reasonably satisfactory to the Trustee, prior to the Initial Reset Date if the Callholder exercises the call option under the Call Option Agreement and the Senior Notes are not redeemed pursuant to Section 212.
SECTION 303. Rule 144A Information. So long as the Senior Notes are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company and the Guarantor shall furnish to holders thereof and to prospective purchasers thereof designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless such information is contained, at the time of such request, in documents filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
ARTICLE FOUR
Miscellaneous
SECTION 401. Execution of Supplemental Indenture. This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture and, as provided in the Original Indenture, this First Supplemental Indenture forms a part thereof.
SECTION 402. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this First Supplemental Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
SECTION 403. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 404. Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by each of the Company or the Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 405. Severability Clause. In case any provision in this First Supplemental Indenture or in the Senior Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
SECTION 406. Benefits of First Supplemental Indenture. Nothing in this First Supplemental Indenture or in the Senior Notes, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the holders, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.
SECTION 407. Execution and Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereof have caused this First Supplemental Indenture to be duly executed by their respective officers, directors or signatories duly authorized thereto, all as of the day and year first above written.
YORKSHIRE POWER FINANCE 2 LIMITED
By______________________________
Title: Attorney-in-Fact
YORKSHIRE POWER GROUP LIMITED
By______________________________
Title: Attorney-in-Fact
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Security Registrar and Transfer
Agent
By______________________________
Title:
EXHIBIT A
{FORM OF FACE OF GLOBAL SECURITY}
[If the Global Security is a Restricted Security, insert the following legend---THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH YORKSHIRE POWER GROUP LIMITED (THE "GUARANTOR"), YORKSHIRE POWER FINANCE 2 LIMITED (THE "ISSUER") OR ANY AFFILIATE OF THE GUARANTOR OR THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE 144(k), OR ANY SUCCESSOR PROVISION THEREOF, UNDER THE SECURITIES ACT) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE GUARANTOR OR THE ISSUER, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE GUARANTOR'S, THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AS TO COMPLIANCE WITH CERTAIN CONDITIONS TO TRANSFER. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE OR SUCH EARLIER TIME AS DETERMINED BY THE ISSUER IN ACCORDANCE WITH APPLICABLE LAW.]
THIS SECURITY IS A GLOBAL BEARER SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN THE BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS GLOBAL BEARER SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS AGENT FOR EXCHANGE OR PAYMENT, AND ANY DEFINITIVE REGISTERED SECURITY IS ISSUED IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN INTEREST HEREIN.
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
No.
(pound)
CUSIP
No.____________
* Reference is made to (i) Schedule A attached hereto with respect to decreases and increases in the aggregate principal amount of Securities evidenced by this certificate and (ii) the other provisions of this Security providing for the conversion to a US Dollar-denominated Security.
The per annum interest rate on the Securities for each Interest Accrual Period through the Initial Reset Date will be reset semi-annually based on procedures set forth below and established in the Indenture; provided, however, that upon the occurrence of a Conversion Event, this Security will convert to a US Dollar-denominated Security as provided in the Indenture.
The rate of interest payable from time to time through the Initial Reset Date in respect of this Security, for any Interest Accrual Period (the "Rate of Interest") will be determined on the basis of the following provisions:
(i) on the first day of such Interest Accrual Period (the
"Interest Determination Date"), the Agent Bank will determine the
Screen Rate for six-month Sterling deposits at or about 11:00 a.m.
(London time) on the Interest Determination Date. If such Screen Rate
is unavailable, the Agent Bank will request the principal London office
of each of the Reference Banks to provide the Agent Bank with its
offered quotation to leading banks for Sterling deposits in the London
interbank market for such Interest Accrual Period at or about 11:00
a.m. (London time) on the Interest Determination Date. The Rate of
Interest for such Interest Accrual Period shall be such Screen Rate
plus 0.805% per annum (the "Margin") or, if such Screen Rate is
unavailable, the arithmetic average (rounded upwards if necessary to
the nearest 1/16th of 1%) of the offered quotations provided by the
Reference Banks (excluding the highest and lowest (or, in either case,
if more than one, then only one of them) of such quotations) plus the
Margin;
(ii) if on the Interest Determination Date such Screen Rate is unavailable and only four of the Reference Banks provide offered quotations, the Rate of Interest for such Interest Accrual Period shall be determined in accordance with the provisions of paragraph (i) above on the basis of the offered quotations of those Reference Banks providing the offered quotations (excluding the highest and lowest of such quotations as provided in paragraph (i) above);
(iii) if on the Interest Determination Date such Screen Rate is unavailable and only two or three of the Reference Banks provide offered quotations, the Rate of Interest for such Interest Accrual Period shall be determined in accordance with the provisions of paragraph (i) above on the basis of the offered quotations of those Reference Banks providing the offered quotations (but without excluding the highest and lowest of such quotations as provided in paragraph (i) above); and
(iv) if on the Interest Determination Date such Screen Rate is unavailable and only one or none of the Reference Banks provides an offered quotation, then the Rate of Interest for such Interest Accrual Period shall be (a) the Rate of Interest in effect for that Interest Accrual Period to which paragraph (i), (ii) or (iii) above shall have applied which last preceded such Interest Accrual Period or (b) if determinable and if higher, the Reserve Interest Rate (as defined below). The "Reserve Interest Rate" shall be the rate per annum which the Agent Bank determines to be either (A) the arithmetic average (rounded upward if necessary to the nearest 1/16th of 1%) of the Sterling lending rates for loans in an amount approximately equal to the principal amount of the Securities which London banks selected by the Agent Bank are quoting, at or about 11:00 a.m. (London time) on the Interest Determination Date, for such Interest Accrual Period, to the
Reference Banks or those of them (being at least two in number) to which the quotations] are, in the opinion of the Agent Bank, being so made plus the Margin or (B) if the Agent Bank cannot determine the arithmetic average, the lowest Sterling lending rate which four London banks selected by the Agent Bank are quoting, on the Interest Determination Date, for such Interest Accrual Period, to leading European banks plus the Margin.
The Interest Amount shall be determined by (i) applying the Rate of Interest for such Interest Accrual Period to the principal amount of the Securities and (ii) multiplying that amount by the actual number of days in such Interest Accrual Period divided by 365 (or if such Interest Accrual Period ends after February 28 in a leap year, 366) expressed as a decimal and rounded upward if necessary to the nearest 1/16th of 1%.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, relating to the interest reset and remarketing mechanics of this Security after the Initial Reset Date.
All payments in respect of this Security and all payments made pursuant to the Guarantee of this Security shall be made in immediately available funds at or through the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, and for so long as this Security shall be listed on the Luxembourg Stock Exchange, in Luxembourg, in such coin or currency of the United Kingdom or the United States of America, as the case may be, as at the time of payment is legal tender for the payment of public and private debt. The Trustee shall make Sterling-denominated payments on the Senior Notes through a London-based account of the Trustee.
All payments of principal of, and premium, if any, and interest in respect of this Security and all payments made pursuant to the Guarantee of this Security shall be made free and clear of, and without withholding or deduction for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within a Taxing Jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction, the Company or the Guarantor, as the case may be, shall pay to the Holder such additional amounts in respect of such withholding or reduction as are necessary so that the Holder receives the amount that would have been due in the absence of such withholding or deduction ("Additional Amounts"), except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is Liable for such Gross-Up Taxes in respect of this Security or the Guarantee of this Security by reason of such Holder or beneficial owner having some connection with the relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Taxing Jurisdiction) other than the mere holding of this Security or the receipt of principal of, and premium, if any, and interest in respect thereon or in respect of the Guarantee of this Security;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) in a Taxing Jurisdiction or, so long as the Senior Notes are listed on the Luxembourg Stock Exchange, in Luxembourg;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of nonresidence or similar claim for exemption to the relevant Taxing Jurisdiction; or
(e) to, or to a Person on behalf of, a Holder of a Registered Security that is not a Global Security issued pursuant to the request of any beneficial owner of an interest in the Security (an "Optional Definitive Security Request") following and during the continuance of an Event of Default if such Holder (or any predecessor Holder) was an owner requesting that such Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, such owner would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (e) above. If the Company or the Guarantor, as applicable, shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company or the Guarantor, as applicable, will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
"Relevant Date" means, in respect of any payment, whichever is the later of (i) the date on which such payment first becomes due and (ii) if the full amount payable has not been received in The City of New York by the Book-Entry Depositary or the Trustee on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the bearer hereof in accordance with the Indenture.
References to principal of, and premium or interest in respect of, this Security or any payments pursuant to the Guarantee of this Security shall be deemed to include any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of the Gross-Up Taxes. Copies of such receipts shall be made available to the Holder of this Security upon request.
All notices regarding the Securities of this Series shall be published in a leading English language daily newspaper of general circulation in London. Furthermore, so long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will also be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxemburger Wort).
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an authorized signatory of the Company.
YORKSHIRE POWER FINANCE 2 LIMITED
By____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By____________________________________
Authorized Signatory
Dated:
[Form of Reverse of Security]
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of February 1, 2000 (herein called the "Original Indenture"), among the Company, Yorkshire Power Group Limited, as guarantor (the "Guarantor"), and The Bank of New York, as trustee, principal paying agent, registrar and transfer agent (herein called the "Trustee", which term includes any successor trustee under the Indenture), as supplemented by the First Supplemental Indenture, dated as of February 16, 2000 (the "First Supplemental Indenture"; together with the Original Indenture and any other supplements thereto, the "Indenture"), among the Company, the Guarantor and the Trustee to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to (pound)155,000,000; provided, however, that upon a Conversion Event, such aggregate principal amount shall be limited to $250,000,000.
Certain provisions with respect to the interest rate reset procedures for the Securities after the Initial Reset Date set forth below are contained in a Remarketing Agreement (the "Remarketing Agreement") between the Company, the Guarantor and Warburg Dillon Read LLC, as Remarketing Agent (the "Remarketing Agent").
In accordance with the procedures established in the Remarketing Agreement and subject to Section 212 of the First Supplemental Indenture, the interest rate in effect with respect to the Securities immediately prior to the Initial Reset Date shall be reset on the Initial Reset Date to equal the Interest Rate to Maturity which shall be effective from and including the Initial Reset Date to but excluding the final maturity of the Securities, unless the Company shall exercise the Floating Rate Option in accordance with the provisions herein. If the Company shall have so exercised the Floating Rate Option, then the Floating Period Interest Rate shall be reset in accordance with the Remarketing Agreement on the Reset Date corresponding to the Floating Rate Period Termination Date to equal the Interest Rate to Maturity, which shall be effective from and including such Reset Date to but excluding the final maturity of the Securities.
During the period from and including the Fixed Rate Reset Date to but excluding the final maturity of the Securities, interest on the Securities shall accrue on principal amount of the Securities at the Interest Rate to Maturity and shall be payable semi-annually on each Interest Payment Date, commencing with the first such Interest Payment Date following the Fixed Rate Reset Date; provided, however, that, if any such Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay). Interest on the Securities from the Fixed Rate Reset Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
In accordance with procedures established in the Remarketing Agreement and subject to Section 212 of the First Supplemental Indenture, if the Company exercises the Floating Rate Option no later than the seventh Business Day prior to the Floating Rate Spread Determination Date by providing notice to the Trustee and Remarketing Agent, then the Securities shall bear interest at the Floating Period Interest Rate for each Floating Rate Reset Period in the Floating Rate Period.
During each Floating Rate Reset Period in the Floating Rate Period, interest on the Securities shall accrue on the Floating Rate Purchase Price at the Floating Period Interest Rate for such Floating Rate Reset Period and shall be payable quarterly on each Interest Payment Date, commencing with the first such Interest Payment Date following the Initial Reset Date. The Interest Amount for such Floating Rate Reset Period shall be determined by (A) applying the Floating Period Interest Rate for such Floating Rate Reset Period to the Floating Rate Purchase Price and (B) multiplying that amount by the actual number of days in such Floating Rate Reset Period divided by 365 (or, if such Floating Rate Reset Period ends after February 28 in a leap year, 366) expressed as a decimal and rounded upward if necessary to the nearest 1/16th of 1%.
If the Callholder shall have purchased the Securities pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Securities shall be automatically tendered, or deemed tendered, by the Holders thereof to the Remarketing Agent for purchase on the Floating Rate Period Termination Date. On the Reset Date corresponding to the Floating Rate Period Termination Date, the interest rate on the Securities shall be reset to equal the Interest Rate to Maturity in accordance with, and the Securities shall be remarketed pursuant to, the Remarketing Agreement.
The purchase price for the Securities tendered pursuant to the paragraph above shall equal 100% of the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date. If for any reason the Remarketing Agent does not purchase all of the Securities on the Floating Rate Period Termination Date, the Company shall redeem the Securities on the Floating Rate Period Termination Date at a redemption price equal to 100% of the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date. If the Remarketing Agent elects to purchase the Securities, such obligation of the Remarketing Agent is subject to the conditions set forth in the Remarketing Agreement.
In the event that the Callholder (i) has not given notice on or before January 10, 2005 of its intention to exercise the call option under the Call Option Agreement or (ii) fails to pay on or before the Business Day next preceding the Early Redemption Date the call price required under the Call Option Agreement, the Company shall redeem on February 15, 2005 (such date, unless it is not a Business Day, in which case the next succeeding day that is a Business day, the "Early Redemption Date"), in whole but not in part, the Securities at a redemption price equal to 100% of the aggregate principal amount of the Securities plus accrued and unpaid interest thereon to but excluding the Early Redemption Date, upon written notice by 5:00 p.m. London time on the Business Day next preceding Early Redemption Date from the Book-Entry Depository, as holder of the Securities.
Any such written notice given by the Book-Entry Depository, as holder of the Securities, shall be irrevocable; provided, however, that if prior to the Early Redemption Date an Event of Default shall have occurred and be continuing, such holder, at its option, may elect by written notice to the Company, to withdraw such instruction and instead to declare the Securities to be due and payable pursuant to Section 502 of the Original Indenture.
If the Callholder shall have purchased the Securities pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Company shall be required to redeem the Securities, in whole but not in part, on any Reset Date following the Initial Reset Date at a redemption price equal to the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding such Reset Date in the event that (i) the Remarketing Agent for any reason does not notify the Company of the Floating Period Interest Rate for the Floating Rate Reset Period beginning on such Reset Date by 4:00 p.m. (London time) on such Reset Date or of the Interest Rate to Maturity by 4:00 p.m., (London time) on the Fixed Rate Determination Date, as applicable, (ii) prior to any such Reset Date, the Remarketing Agent resigns and no successor has been appointed on or before such Reset Date or Determination date, as applicable, (iii) the Remarketing Agent elects to terminate the Remarketing Agreement in accordance with its terms, (iv) the Remarketing Agent for any reason does not elect (by notice to the Company and the Trustee not later than the Fixed Rate Determination Date) to purchase the Securities for remarketing on the Floating Rate Period Termination Date, (v) the Remarketing Agent for any reason does not deliver the purchase price of the Securities to or through DTC on or before the Floating Rate Period Termination Date as provided in the Remarketing Agreement or (vi) the Company for any reason fails to redeem the Securities following the Company's election to effect such redemption as set forth in paragraph (c) of this Section 212.
If the Callholder shall have purchased the Securities pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Company shall notify the Callholder, the Remarketing Agent and the Trustee, not later than the Business Day immediately preceding the Floating Rate Period Termination Date, if the Company irrevocably elects to exercise its right to redeem the Senior Notes, in whole but not in part, from the Remarketing Agent on the Floating Rate Period Termination Date. If the Company elects to redeem the Securities, the Company shall redeem the Securities in whole at a redemption price equal to the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date.
The tender and settlement procedures set forth above, including provisions for payment by purchasers of the Securities to any remarketing agent or for payment of the Securities, may be modified to the extent required by DTC or to the extent required to facilitate the tender and remarketing of the Securities at the time of the remarketing. In addition, the Remarketing Agent may, without the consent of holders of the Securities, modify the tender and settlement procedures specified above in order to facilitate the tender and settlement process.
Unless the Company defaults in payment of the redemption price, from and after a redemption date, the Securities of this series or portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect of such Securities of this series except the right to receive the redemption price thereof.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of the Securities and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to the Securities has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to the Securities have been cured or waived (other than the non-payment of principal of the Securities which has become due solely by reason of such declaration of acceleration) then such declaration of acceleration and its consequences shall be automatically annulled and rescinded.
This Security is subject to redemption in whole but not in part upon not less than 30 nor more than 60 days' notice given as provided in the Indenture, at a price equal to the outstanding principal amount thereof, together with Additional Amounts, if any, and accrued interest, if any, to the Redemption Date if, (a) the Company or the Guarantor satisfies the Trustee prior to the giving of such notice that it has or will become obligated to pay Additional Amounts as a result of either (i) any change in, or amendment to, the laws or regulations of a Taxing Jurisdiction, or any change in the application or interpretation of such laws or regulations, which change or amendment becomes effective on or after February 16, 2000 (or, in the case of any jurisdiction other than a Taxing Jurisdiction, any such change or amendment that becomes effective on or after the date on which the Company or the Guarantor, as the case may be, is merged into, or conveyed or transferred or leased its properties and assets substantially as an entirety to, any Person that is organized under the laws of, or is managed or controlled or has a place of business in, such jurisdiction) or (ii) the issuance of Definitive Registered Securities pursuant to any of clauses (a), (b) or (d) of the third following paragraph and (b) such obligation cannot be avoided by the Company or the Guarantor taking reasonable measures available to it, subject, as provided in the Indenture, to the delivery by the Company or the Guarantor of an Officers' Certificate stating that such obligation to pay Additional Amounts cannot be avoided by the Company or the Guarantor taking reasonable measures available to it.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and the rights of the Holders of the Securities of all series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as a class). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and premium, if any, and interest in respect of this Security at the times, place and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable, in whole or, in the case
of clause (d) below, in part as provided in the Indenture, for Definitive
Registered Securities registered in the names of Persons other than the
Book-Entry Depositary with respect to such series or its nominee only as
provided in this paragraph. This Security shall be so exchangeable if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or at any time ceases to be
a "clearing agency" registered as such under the Exchange Act and in either
case, a successor is not appointed by the Company within 120 days, (b) the
Book-Entry Depositary for the Securities of this series notifies the Company
that it is unwilling or unable to continue as Book-Entry Depositary with respect
to this Security and no successor is appointed within 120 days, (c) the Company
executes and delivers to the Trustee an Officers' Certificate providing that
this Security shall be so exchangeable, (d) the Company receives an Optional
Definitive Securities Request or (e) while this Security is subject to the
transfer restrictions set forth in the Restricted Securities Legend hereon, on
or after the Initial Reset Date the Book-Entry Interests cease to be eligible
for DTC services because this Security is neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a self-regulatory organization system approved by the
Commission for the reporting of quotations and trade information of securities
eligible for trade pursuant to Rule 144A, such as the PORTAL system. Securities
so issued in exchange for this Security shall be of the same series, having the
same interest rate, if any, and maturity and having the same terms as this
Security, in authorized denominations and in the aggregate having the same
principal amount as this security and registered in such names as the Book-Entry
Depositary for this Security shall direct.
The bearer of this Security shall be treated as the owner of it for all purposes, subject to the terms of the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such exchange, but the Company may payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities of this series and may otherwise deal with the Company, the Guarantor or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company or the Guarantor shall have any liability for any obligation of the Company or the Guarantor under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of the Securities of this series by accepting Securities of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
GUARANTEE
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private limited company duly incorporated and existing under the laws of England and Wales (the "Guarantor", which term includes any successor Person under the Indenture referred to in the Security on which this notation is endorsed), hereby fully and unconditionally guarantees to the Holder of the accompanying Security issued by Yorkshire Power Finance 2 Limited (the "Company"), pursuant to the terms of the Guarantee contained in Article Fourteen of the Indenture, the due and punctual payment of the principal of, and premium, if any, and interest in respect of this Security (and any Additional Amounts payable in respect thereof), when and as the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of this Security and the Indenture. In case of the failure of the Company punctually to pay any such principal, premium, if any, or interest, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable as if such payment were made by the Company.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose
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until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee or the authenticating agent under the Indenture by the manual signature of one of its authorized officers.
YORKSHIRE POWER GROUP LIMITED
By:_____________________________
Authorized Signatory
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
The initial aggregate principal amount of Securities evidenced by the Certificate to which this Schedule is attached is ___________. The notations on the following table evidence decreases and increases in the aggregate principal amount of Securities evidenced by such Certificate.
Aggregate
Principal
Decrease in Amount of
Aggregate Increase in Securities
Principal Aggregate Remaining After Notation by
Date of Amount of Principal amount Such Decrease or Security
Adjustment Securities of Securities Increase Registrar
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EXHIBIT B
[FORM OF FACE OF DEFINITIVE REGISTERED SECURITY
[If the Definitive Registered Security is a Restricted Security, insert the Restricted Securities Legend set forth in Exhibit A hereto.]
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
No. _______________ (pound) 155,000,000* CUSIP No.:
*Reference is made to (i) Schedule A attached hereto with respect to decreases and increases in the aggregate principal amount of Securities evidenced by this certificate and (ii) the other provisions of this Security providing for the conversion to a US Dollar denominated Security.
The per annum interest rate on the Securities for each Interest Accrual Period through the Initial Reset Date will be reset semi-annually based on procedures set forth below and established in the Indenture; provided, however, that upon the occurrence of a Conversion Event, this Security will convert to a US Dollar denominated Security as provided in the Indenture.
The rate of interest payable from time to time through the Initial Reset Date in respect of this Security for any Interest Accrual Period (the "Rate of Interest") will be determined on the basis of the following provisions:
(i) on the first day of such Interest Accrual Period (the
"Interest Determination Date"), the Agent Bank will determine the
Screen Rate for six-month Sterling deposits at or about 11:00 a.m.
(London time) on the Interest Determination Date. If such Screen Rate
is unavailable, the Agent Bank will request the principal London office
of each of the Reference Banks to provide the Agent Bank with its
offered quotation to leading banks for Sterling deposits in the London
interbank market for such Interest Accrual Period at or about 11:00
a.m. (London time) on the Interest Determination Date. The Rate of
Interest for such Interest Accrual Period shall be such Screen Rate
plus 0.805% per annum (the "Margin") or, if such Screen Rate is
unavailable, the arithmetic average (rounded upwards if necessary to
the nearest 1/16th of 1%) of the offered quotations provided by the
Reference Banks (excluding the highest and lowest (or, in either case,
if more than one, then only one of them) of such quotations) plus the
Margin;
(ii) if on the Interest Determination Date such Screen Rate is unavailable and only four of the Reference Banks provide offered quotations, the Rate of Interest for such Interest Accrual Period shall be determined in accordance with the provisions of paragraph (i) above on the basis of the offered quotations of those Reference Banks providing the offered quotations (excluding the highest and lowest of such quotations as provided in paragraph (i) above);
(iii) if on the Interest Determination Date such Screen Rate is unavailable and only two or three of the Reference Banks provide offered quotations, the Rate of Interest for such Interest Accrual Period shall be determined in accordance with the provisions of paragraph (i) above on the basis of the offered quotations of those Reference Banks providing the offered quotations (but without excluding the highest and lowest of such quotations as provided in paragraph (i) above); and
(iv) if on the Interest Determination Date such Screen Rate is unavailable and only one or none of the Reference Banks provides an offered quotation, then the Rate of Interest for such Interest Accrual Period shall be (a) the Rate of Interest in effect for that Interest Accrual Period to which paragraph (i), (ii) or (iii) above shall have applied which last preceded such Interest Accrual Period or (b) if determinable and if higher, the Reserve Interest Rate. The "Reserve Interest Rate" (as defined below) shall be the rate per annum which the Agent Bank determines to be either (A) the arithmetic average (rounded upward if necessary to the nearest 1/16th of 1%) of the Sterling lending rates for loans in an amount approximately equal to the principal amount of the Securities which London banks selected by the
Agent Bank are quoting, at or about 11:00 a.m. (London time) on the Interest Determination Date, for such Interest Accrual Period, to the Reference Banks or those of them (being at least two in number) to which the quotations are, in the opinion of the Agent Bank, being so made plus the Margin or (B) if the Agent Bank cannot determine the arithmetic average, the lowest Sterling lending rate which four London banks selected by the Agent Bank are quoting, on the Interest Determination Date, for such Interest Accrual Period, to leading European banks plus the Margin.
The Interest Amount shall be determined by (I) applying the Rate of Interest for such Interest Accrual Period to the principal amount of the Securities and (ii) multiplying that amount by the actual number of days in such Interest Accrual Period divided by 365 (or if such Interest Accrual Period ends after February 28 in a leap year, 366) expressed as a decimal and rounded upward if necessary to the nearest 1/16th of 1%.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof relating to the interest reset and remarketing mechanics of this Security after the Initial Reset Date.
All payments in respect of this Security and all payments made pursuant to the Guarantee of this Security shall be made in immediately available funds at or through the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, and for so long as this Security shall be listed on the Luxembourg Stock Exchange, in Luxembourg, in such coin or currency of the United Kingdom or the United States of America, as the case may be, as at the time of payment is legal tender for the payment of public and private debt. The Trustee shall make Sterling-denominated payments on the Senior Notes through a London-based account of the Trustee.
All payments of principal of, and premium, if any, and interest in respect of this Security and all payments made pursuant to the Guarantee of this Security shall be made free and clear of, and without withholding or deduction for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within a Taxing Jurisdiction or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction, the Company or the Guarantor, as the case may be, shall pay to the Holder such additional amounts in respect of such withholding or reduction as are necessary so that the Holder receives the amount that would have been due in the absence of such withholding or deduction ("Additional Amounts"), except that no such Additional Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable for such Gross-Up Taxes in respect of this Security or the Guarantee of this Security by reason of such Holder or beneficial owner having some connection with the relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Taxing Jurisdiction) other than the mere holding of this Security or the receipt of principal of, and premium, if any, and interest in respect thereon or in respect of the Guarantee of this Security;
(b) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to such Additional Amounts on presenting this Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents this Security (where presentation is required) in a Taxing Jurisdiction or, so long as the Senior Notes are listed on the Luxembourg Stock Exchange, in Luxembourg;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of nonresidence or similar claim for exemption to the relevant Taxing Jurisdiction; or
(e) to, or to a Person on behalf of, a Holder of a Registered Security that is not a Global Security issued pursuant to the request of any beneficial owner of an interest in the Security (an "Optional Definitive Security Request") following and during the continuance of an Event of Default if such Holder (or any predecessor Holder) was an owner requesting that such Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had the beneficial owner of the Security (or any interest therein) been the Holder of the Security, such owner would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (e) above. If the Company or the Guarantor, as applicable, shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company or the Guarantor, as applicable, will inform such Holder promptly after making such determination setting forth the reason(s) therefor.
"Relevant Date" means, in respect of any payment, whichever is the later of (i) the date on which such payment first becomes due and (ii) if the full amount payable has not been received in The City of New York by the Book-Entry Depositary or the Trustee on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the bearer hereof in accordance with the Indenture.
References to principal of, and premium or interest in respect of, this Security or any payments pursuant to the Guarantee of this Security shall be deemed to include any Additional Amounts which may be payable as set forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of the Gross-Up Taxes. Copies of such receipts shall be made available to the Holder of this Security upon request.
All notices regarding the Securities of this Series shall be published in a leading English language daily newspaper of general circulation in London. Furthermore, so long as the Securities of this series are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, notices to Holders of Securities of this series will also be published in a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxemburger Wort).
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by an authorized signatory of the Company.
YORKSHIRE POWER FINANCE 2 LIMITED
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:____________________________________
Authorized Signatory
Dated:
[Form of Reverse of Security]
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of February 1, 2000 (herein called the "Original Indenture"), among the Company, Yorkshire Power Group Limited, as guarantor (the "Guarantor"), and The Bank of New York, as trustee, principal paying agent, registrar and transfer agent (herein called the "Trustee", which term includes any successor trustee under the Indenture), as supplemented by the First Supplemental Indenture, dated as of February 16, 2000 (the "First Supplemental Indenture"; together with the Original Indenture and any other supplements thereto, the "Indenture"), among the Company, the Guarantor and the Trustee to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to (pound)155,000,000; provided, however, that upon a Conversion Event, such aggregate principal amount shall be limited to $250,000,000.
Certain provisions with respect to the interest rate reset procedures for the Securities after the Initial Reset Date set forth below are contained in a Remarketing Agreement (the "Remarketing Agreement") between the Company, the Guarantor and UBS AG, London Branch or any affiliate thereof, as Remarketing Agent (the "Remarketing Agent").
In accordance with the procedures established in the Remarketing Agreement and subject to Section 212 of the First Supplemental Indenture, the interest rate in effect with respect to the Securities immediately prior to the Initial Reset Date shall be reset on the Initial Reset Date to equal the Interest Rate to Maturity which shall be effective from and including the Initial Reset Date to but excluding the final maturity of the Securities, unless the Company shall exercise the Floating Rate Option in accordance with the provisions herein. If the Company shall have so exercised the Floating Rate Option, then the Floating Period Interest Rate shall be reset in accordance with the Remarketing Agreement on the Reset Date corresponding to the Floating Rate Period Termination Date to equal the Interest Rate to Maturity, which shall be effective from and including such Reset Date to but excluding the final maturity of the Securities.
During the period from and including the Fixed Rate Reset Date to but excluding the final maturity of the Securities, interest on the Securities shall accrue on principal amount of the Securities at the Interest Rate to Maturity and shall be payable semi-annually on each Interest Payment Date, commencing with the first such interest Payment Date following the Fixed Rate Reset Date; provided, however, that, if any such Interest Payment Date is not a Business Day, then payment of interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay). Interest on the Securities from the Fixed Rate Reset Date shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
In accordance with procedures established in the Remarketing Agreement and subject to Section 212 of the First Supplemental Indenture, if the Company exercises the Floating Rate Option no later than the seventh Business Day prior to the Floating Rate Spread determination Date by providing notice to the Trustee and Remarketing Agent, then the Securities shall bear interest at the Floating Period Interest Rate for each Floating Rate Reset Period in the Floating Rate Period.
During each Floating Rate Reset Period in the Floating Rate Period, interest on the Securities shall accrue on the Floating Rate Purchase Price at the Floating Period Interest Rate for such Floating Rate Reset Period and shall be payable quarterly on each Interest Payment Date, commencing with the first such Interest Payment Date following the Initial Reset Date. The Interest Amount for such Floating Rate Reset Period shall be determined by (A) applying the Floating Period Interest Rate for such Floating Rate Reset Period to the Floating Rate Purchase Price and (B) multiplying that amount by the actual number of days in such Floating Rate Reset Period divided by 365 (or, if such Floating Rate Reset Period ends after February 28 in a leap year, 366) expressed as a decimal and rounded upward if necessary to the nearest 1/16th of 1%.
If the Callholder shall have purchased the Securities pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Securities shall be automatically tendered, or deemed tendered, by the Holders thereof to the Remarketing Agent for purchase on the Floating Rate Period Termination Date. On the Reset Date corresponding to the Floating Rate Period Termination Date, the interest rate on the Securities shall be reset to equal the Interest Rate to Maturity in accordance with, and the Securities shall be remarketed pursuant to, the Remarketing Agreement.
The purchase price for the Securities tendered pursuant to the paragraph above shall equal 100% of the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date. If for any reason the Remarketing Agent does not purchase all of the Securities on the Floating Rate Period Termination Date, the Company shall be required to redeem the Securities at a redemption price equal to 100% of the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date. If the Remarketing Agent elects to purchase the Securities, such obligation of the Remarketing Agent is subject to the conditions set forth in the Remarketing Agreement.
In the event that the Callholder (i) has not given notice on or before January 10, 2005 of its intention to exercise the call option under the Call Option Agreement or (ii) fails to pay on or before the Business Day next preceding the Early Redemption Date the call price required under the Call Option Agreement, the Company shall redeem on February 15, 2005 (such date, unless it is not a Business Day, in which case the next succeeding day that is a Business day, the "Early Redemption Date"), in whole but not in part, the Securities at a redemption price equal to 100% of the aggregate principal amount of the Securities plus accrued and unpaid interest thereon to but excluding the Early Redemption Date, upon written notice by 5:00 p.m. London time on the Business Day next preceding Early Redemption Date from the Book-Entry Depository, as holder of the Securities.
Any such written notice given by the Book-Entry Depository, as holder of the Securities, shall be irrevocable; provided, however, that if prior to the Early Redemption Date an Event of Default shall have occurred and be continuing, such holder, at its option, may elect by written notice to the Company, to withdraw such instruction and instead to declare the Securities to be due and payable pursuant to Section 502 of the Original Indenture.
If the Callholder shall have purchased the Securities pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Company shall be required to redeem the Securities, in whole but not in part, on any Reset Date following the Initial Reset Date at a redemption price equal to the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding such Reset Date in the event that (i) the Remarketing Agent for any reason does not notify the Company of the Floating Period Interest Rate for the Floating Rate Reset Period beginning on such Reset Date by 4:00 p.m. (London time) on such Reset Date or of the Interest Rate to Maturity by 4:00 p.m., (London time) on the Fixed Rate Determination Date, as applicable, (ii) prior to any such Reset Date, the Remarketing Agent resigns and no successor has been appointed on or before such Reset Date or Determination date, as applicable, (iii) the Remarketing Agent elects to terminate the Remarketing Agreement in accordance with its terms, (iv) the Remarketing Agent for any reason does not elect (by notice to the Company and the Trustee not later than the Fixed Rate Determination Date) to purchase the Securities for remarketing on the Floating Rate Period Termination Date, (v) the Remarketing Agent for any reason does not deliver the purchase price of the Securities to or through DTC on or before the Floating Rate. Period Termination Date as provided in the Remarketing Agreement or (vi) the Company for any reason fails to redeem the Securities following the Company's election to effect such redemption as set forth in paragraph (c) of this Section 212.
If the Callholder shall have purchased the Securities pursuant to the Call Option Agreement and the Company shall have elected the Floating Rate Option, the Company shall notify the Callholder, the Remarketing Agent and the Trustee, not later than the Business Day immediately preceding the Floating Rate Period Termination Date, if the Company irrevocably elects to exercise its right to redeem the Senior Notes, in whole but not in part, from the Remarketing Agent on the Floating Rate Period Termination Date. If the Company elects to redeem the Securities, the Company shall redeem the Securities on the Floating Rate Period Termination Date in whole at a redemption price equal to the Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon to but excluding the Floating Rate Period Termination Date.
The tender and settlement procedures set forth above, including provisions for payment by purchasers of the Securities to any remarketing agent or for payment of the Securities, may be modified to the extent required by DTC or to the extent required to facilitate the tender and remarketing of the Securities at the time of the remarketing. In addition, the Remarketing Agent may, without the consent of holders of the Securities, modify the tender and settlement procedures specified above in order to facilitate the tender and settlement process.
Unless the Company defaults in payment of the redemption price, from and after a redemption date, the Securities of this series or
portions thereof called for redemption will cease to bear interest, and the Holders thereof will have no right in respect of such Securities of this series except the right to receive the redemption price thereof.
The Indenture contains provisions for defeasance of (a) the entire indebtedness of the Securities and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. At any time after such declaration of acceleration with respect to the Securities has been made, but before a judgment or decree for payment of money has been obtained by the Trustee as provided in the Indenture, if all Events of Default with respect to the securities have been cured or waived (other than the non-payment of principal of the Securities which has become due solely by reason of such declaration of acceleration) then such declaration of acceleration and its consequences shall be automatically annulled and rescinded.
This Security is subject to redemption in whole but not in
part upon not less than 30 nor more than 60 days' notice given as provided in
the Indenture, at a price equal to the outstanding principal amount thereof,
together with Additional Amounts, if any, and accrued interest, if any, to the
Redemption Date if (a) the Company or the Guarantor satisfies the Trustee prior
to the giving of such notice that it has or will become obligated to pay
Additional Amounts as a result of either (i) any change in, or amendment to, the
laws or regulations of a Taxing Jurisdiction, or any change in the application
or interpretation of such laws or regulations, which change or amendment becomes
effective on or after February 16, 2000 (or, in the case of any jurisdiction
other than a Taxing Jurisdiction, any such change or amendment that becomes
effective on or after the date on which the Company or the Guarantor, as the
case may be, is merged into, or conveyed or transferred or leased its properties
and assets substantially as an entirety to, any Person that is organized under
the laws of, or is managed or controlled or has a place of business in, such
jurisdiction) or (ii) the issuance of Definitive Registered Securities as a
result of: (A) DTC having notified the Company and the Book-Entry Depositary
that it was unwilling or unable to continue to hold the Book-Entry Interest or
at any time ceasing to be "a clearing agency" registered as such under the
Securities Exchange Act of 1934 and, in either case, a successor is not being
appointed by the Company within 120 days; (B) the Book-Entry Depositary for the
Securities of this series having notified the Company that it was unwilling or
unable to continue as Book-Entry Depositary with respect to a Global security of
this series and no successor Book-Entry Depositary having been appointed by the
Company within 120 days or (C) an Event of Default with respect to the
Securities of this series having occurred and being continuing and a Holder, in
such circumstance, having requested in writing that a Global Bearer Security of
this series be exchanged for one or more Definitive Registered Securities and
(b) such obligation cannot be avoided by the Company or the Guarantor taking
reasonable measures available to it, subject, as provided in the indenture, to
the delivery by the Company or the Guarantor of an Officers' Certificate stating
that such obligation to pay Additional Amounts cannot be avoided by the Company
or the Guarantor taking reasonable measures available to it.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the Indenture or any supplemental indenture or the rights and obligations of the Company and the rights of the Holders of the Securities of all series to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as a class). The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and premium, if any, and interest in respect of this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
When a successor assumes all the obligations of its predecessor under the Securities of this series and the Indenture in accordance with the terms of the Indenture, the predecessor will be released from those obligations.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities of this series and may otherwise deal with the Company, the Guarantor or their respective Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or Affiliate of the Company or the Guarantor shall have any liability for any obligation of the Company or the Guarantor under the Securities of this series or the Indenture or for any claim based on, in respect of or by reason of, such obligations of their creation. Each Holder of the Securities of this series by accepting Securities of this series waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities of this series.
This Security shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on this Security.
Customary abbreviations may be used in the name of a Holder of a Securities of this series or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company will cause CUSIP numbers to be printed on the Securities of this series as a convenience to the Holders of the Securities of this series. No representation is made as to the accuracy of such numbers as printed on the Securities of this series and reliance may be placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
GUARANTEE
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private limited company duly incorporated and existing under the laws of England and Wales (the "Guarantor", which term includes any successor Person under the Indenture referred to in the Security on which this notation is endorsed), hereby fully and unconditionally guarantees to the Holder of the accompanying Security issued by Yorkshire Power 2 Finance Limited (the "Company'), pursuant to the terms of the Guarantee contained in Article Fourteen of the Indenture, the due and punctual payment of the principal of, and premium, if any, and interest in respect of this Security (and any Additional Amounts payable in respect thereof), when and as the same shall become due and payable, whether at Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of this Security and the Indenture. In case of the failure of the Company punctually to pay any such principal, premium, if any, or interest, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable as if such payment were made by the Company.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose
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until the certificate of authentication on the Security upon which this notation of the Guarantee is endorsed shall have been executed by the Trustee or the authenticating agent under the Indenture by the manual signature of one of its authorized officers.
YORKSHIRE POWER GROUP LIMITED
By:_______________________________
Authorized Signatory
EXHIBIT 10.80
TRUST AGREEMENT
among
YORKSHIRE POWER GROUP LIMITED
and
YPG HOLDINGS LLC,
as Administrative Party,
and
THE BANK OF NEW YORK,
as Trustee
Dated as of February 1, 2000
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Assumptions.........................................2
SECTION 1.1. Definitions...............................................2
SECTION 1.2. Rules of Construction....................................12
ARTICLE II Declaration of Trust; Issuance of Certificates....................12
SECTION 2.1. Creation and Declaration of Trust;
Purchase of Interests....................................12
SECTION 2.2. Representations and Warranties...........................13
SECTION 2.3. Breach of Representation, Warranty or Covenant...........15
SECTION 2.4. Agreement to Authenticate and Deliver Certificates.......15
ARTICLE III Administration of Trust 15
SECTION 3.1. Administration of Trust..................................15
SECTION 3.2. Receipt of Trust Asset Payments..........................15
SECTION 3.3. Certificate Account......................................16
SECTION 3.4. Realization Upon Defaulted Notes.........................17
SECTION 3.5 Access to Certain Documentation..........................18
SECTION 3.6. Expenses of Trust........................................18
SECTION 3.7. No Merger or Consolidation of Trust......................18
SECTION 3.8. Exchange Rate Agency Agreement...........................18
ARTICLE IV Distributions and Reports to Certificateholders; Transfer of
Certificates.............................................18
SECTION 4.1. Distributions............................................18
SECTION 4.2. Final Distributions......................................20
SECTION 4.3. Reports to Certificateholders............................21
SECTION 4.4. Compliance with Withholding Requirements; Tax
Treatment and Reporting..................................21
SECTION 4.5. Transfer of Certificates.................................22
SECTION 4.6. Rule 144A Information....................................23
ARTICLE V Security Forms.....................................................23
SECTION 5.1. Forms Generally..........................................23
SECTION 5.2. Restricted Legend........................................24
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ARTICLE VI The Certificates..................................................26
SECTION 6.1. Designation; Certificate Principal Amount and
Denominations............................................26
SECTION 6.2. Execution, Authentication and Delivery...................26
SECTION 6.3. Registration; Registration of Transfer and Exchange......27
SECTION 6.4. Mutilated, Destroyed, Lost or Stolen Certificates........29
SECTION 6.5. Distribution of Available Funds..........................30
SECTION 6.6. Persons Deemed Owners....................................30
SECTION 6.7. Cancellation.............................................31
SECTION 6.8. Global Securities........................................31
SECTION 6.9. Notices to Depository....................................33
SECTION 6.10. Conditions of Authentication and Delivery................33
SECTION 6.11. Appointment of Paying Agent..............................33
SECTION 6.12. Authenticating Agent.....................................34
SECTION 6.13. Remedies.................................................35
ARTICLE VII Yorkshire Group and the Administrative Party.....................36
SECTION 7.1. Liability of Yorkshire Group.............................36
SECTION 7.2. Limitation on Liability of Yorkshire Group...............36
SECTION 7.3. Ownership of Administration Certificate..................36
SECTION 7.4. Transfer of Administration Certificate...................37
SECTION 7.5. No Economic Interest in the Trust........................37
SECTION 7.6. Certain Duties and Responsibilities......................38
ARTICLE VIII Concerning the Currency Swap, the Call Option and the Early
Redemption Right.........................................38
SECTION 8.1. Currency Swap and Call Option............................38
SECTION 8.2. Obligations to the Callholder............................39
SECTION 8.3. Early Redemption Right...................................39
ARTICLE IX Concerning the Trustee............................................40
SECTION 9.1. Duties of Trustee; Notice of Defaults....................40
SECTION 9.2. Certain Matters Affecting the Trustee....................41
SECTION 9.3. Trustee Not Liable for Recitals in Certificates
or Trust Assets..........................................42
SECTION 9.4. Trustee May Own Certificates.............................42
SECTION 9.5. Trustee's Fees and Expenses; Indemnification.............42
SECTION 9.6. Eligibility Requirements for Trustee.....................43
SECTION 9.7. Resignation or Removal of the Trustee....................43
SECTION 9.8. Successor Trustee........................................44
SECTION 9.9. Merger or Consolidation of Trustee.......................44
SECTION 9.10. Appointment of Office or Agency..........................45
SECTION 9.11. Representations and Warranties of Trustee................45
SECTION 9.12. Limitation of Powers and Duties..........................45
ii
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ARTICLE X Termination........................................................47
SECTION 10.1. Termination..............................................47
ARTICLE XI Miscellaneous Provisions..........................................47
SECTION 11.1. Amendment................................................47
SECTION 11.2. Counterparts.............................................48
SECTION 11.3. Limitation on Rights of Certificateholders...............49
SECTION 11.4. Governing Law............................................49
SECTION 11.5. Jurisdiction.............................................50
SECTION 11.6. Notices..................................................50
SECTION 11.7. Severability of Provisions...............................51
SECTION 11.8. Notice to Rating Agencies................................51
SECTION 11.9. Non-petition Covenant....................................51
SECTION 11.10. Article and Section References...........................52
SECTION 11.11. Compliance Certificates and Opinions, etc................52
Exhibit A - Form of Certificate
Exhibit B - Form of Confirmation for Call Option
Exhibit C - Form of Confirmation for Currency Swap
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Exhibit D - Form of Notice of Payment Default by the Swap Counterparty under the Currency Swap Exhibit E - Form of Notice of Payment Default by the Callholder under the Call Option Exhibit F - Form of Administration Certificate
58
TRUST AGREEMENT dated as of February 1, 2000, among Yorkshire Power Group Limited, a private limited company incorporated under the laws of England and Wales ("Yorkshire Group"), YPG Holdings LLC, a limited liability company formed under the laws of the State of Delaware ("YPG Holdings"), as holder of the Administration Certificate (the "Administrative Party"), and The Bank of New York, a banking corporation duly organized and existing under the laws of New York, as trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, Yorkshire Group, YPG Holdings and the Trustee have duly authorized the execution and delivery of this Agreement to create and establish a new trust to be known as the Yorkshire Power Pass-Through Asset Trust 2000-1 and trust certificates to be issued thereby, which certificates shall be known as the 8.25% Pass-Through Asset Trust Securities Due February 15, 2005 (the "Certificates"), and Yorkshire Group, YPG Holdings and the Trustee shall herein specify certain terms and conditions in respect thereof.
WHEREAS, the Certificates shall have an aggregate Initial Certificate Principal Balance of $250,000,000 and shall entitle the holders thereof (the "Holders") to distributions thereon to the extent of (i) collections on (pound)155,000,000 principal amount of Reset Senior Notes Due February 15, 2020 issued by Yorkshire Power Finance 2 Limited, a private company with limited liability incorporated under the laws of the Cayman Islands ("Yorkshire Finance"), which are fully and unconditionally guaranteed by Yorkshire Group (the "Notes"), (ii) Dollar Swap Payments by the Swap Counterparty with respect to the Currency Swap received by the Trustee and (iii) any other funds contained in the Certificate Account to the extent set forth herein.
WHEREAS, pursuant to the terms of this Agreement, the Trust shall issue to YPG Holdings an administration certificate which bestows on the holder thereof certain administrative and appointment powers in the Trust (the "Administration Certificate").
WHEREAS, all representations, covenants and agreements made herein by each of Yorkshire Group, YPG Holdings and the Trustee are for the benefit and security of the Certificateholders.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Certificateholders, hereby agrees as follows:
ARTICLE I
Definitions and Assumptions
SECTION 1.1. Definitions. Except as otherwise specified herein or as text may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Agreement.
"Administrative Party": The holder from time to time of the Administration Certificate, which shall be a direct or indirect wholly owned subsidiary of Yorkshire Group (or successor thereto as permitted pursuant to the Indenture) that is not resident in the United Kingdom for purposes of United Kingdom taxation and that is organized under the laws of any State. As of the date of this Agreement, the Administrative Party is YPG Holdings.
"Administration Certificate": As defined in the Preamble and a form of which is attached hereto as Exhibit F.
"Affiliate": With respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement": This Agreement and all modifications or amend- ments hereof, including the terms of the Certificates.
"Applicable Procedures": As defined in Section 5.2(b).
"Authentication Agent": As defined in Section 6.12.
"Available Funds": For any Distribution Date, the aggregate amount deposited in the Certificate Account since the last Distribution Date with respect to (a) for so long as the Notes are denominated in Pounds Sterling and no Swap Termination Event has occurred, any Dollar Swap Payment or other US Dollar amount paid by the Swap Counterparty to the Trustee under the Currency Swap, (b) if a Swap Termination Event (other than as a result of a Conversion Event or an Optional Tax Redemption) has occurred, the semi-annual interest payments on the Notes and payments on or in respect of the principal of the Notes made by Yorkshire Finance thereunder or, if applicable, Yorkshire Group under the Guarantee and received by the Trustee in respect of the Interest or, if applicable, any Swap Termination Payment (subject to Section 6.13) or Unpaid Amounts, (c) if a Conversion Event has occurred, the semi-annual interest payments on the Notes and payments on or in respect of the principal of the Notes made by Yorkshire Finance thereunder or, if applicable, Yorkshire Group under the Guarantee and received by the Trustee in respect of the Interest or, if applicable, any Unpaid Amounts, (d) all Option Proceeds and (e) all Liquidation Proceeds.
"Book-Entry Depositary": The Bank of New York, or its nominee or the custodian of either, until a successor Person shall have become such pursuant to Section 3.08 of the Deposit Agreement, and thereafter "Book-Entry Depositary" shall mean such successor Person or its nominee or the custodian of either.
"Book-Entry Interests": With respect to the Notes, one or more certificateless depositary interests in the Global Notes which together shall at all times, unless and until Definitive Notes are issued in respect of the Notes, represent the right to receive 100% of the principal, premium (if any), interest and additional amounts (if any) of the Notes, which are initially issued to the Depository or its nominee (registered in the name of the Depository or its nominee) by the Book-Entry Depositary.
"Business Day": With respect to (i) the Call Option, as defined therein, (ii) the Currency Swap, as defined therein, (iii) the Notes, as defined in the Indenture and (iv) this Trust Agreement, each day which is not a Saturday, Sunday or a day on which banking institutions and foreign exchange markets in New York and London are authorized or obligated by law to remain closed.
"Call Exercise Date": January 10, 2005, or if such date is not a Business Day, the next preceding Business Day.
"Call Option": The Confirmation, dated February 9, 2000, between the Trustee and the Callholder, pursuant to the ISDA Master Agreement providing a call option to the Callholder, the form of such confirmation is substantially in the form attached hereto as Exhibit B.
"Call Price": An amount equal to 100% of the principal amount of the Notes.
"Callholder": UBS AG, London Branch, or any permitted assignee thereof.
"Certificateholder" or "Holder": With respect to any Outstanding Certificate, the Person in whose name a Certificate is registered in the Certificate Register on the applicable Record Date.
"Certificate Account": As defined in Section 3.3.
"Certificate Owner": A beneficial owner of a Certificate represented by a Global Security.
"Certificate Principal Amount": $250,000,000.
"Certificate Principal Balance": With respect to an Outstanding Certificate, as determined at any time, the maximum amount that the Holder thereof is entitled to receive as distributions of principal.
"Certificate Register" and "Certificate Registrar": As defined in Section 6.3.
"Certificates": The 8.25% Pass-Through Asset Trust Securities Due February 15, 2005 issued by the Trust and authorized by, and authenticated and delivered under, this Agreement.
"Clearstream, Luxembourg": Clearstream Banking, societe anonyme (or any successor securities clearing agency).
"Closing Date": February 16, 2000.
"Code": The US Internal Revenue Code of 1986, as amended, and Treasury Regulations promulgated thereunder.
"Commission": The US Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution and delivery of this Agreement such Commission is not existing and performing the duties now assigned to it, then the body then performing such duties.
"Company Order" or "Company Request": A written order or request, respectively, signed in the name of the Administrative Party by any two of its Chairman, President or any Vice President and delivered to the Trustee.
"Conversion Event": The declaration, at any time prior to the Settlement Date, of the principal amount of the Notes to be due and payable immediately in accordance with Section 502 of the Indenture as a result of the occurrence of an Event of Default thereunder.
"Corporate Trust Office": The office of the Trustee at which its corporate trust business shall be principally administered.
"Currency Swap": The Confirmation, dated February 9, 2000, between the Swap Counterparty and the Trustee, pursuant to the ISDA Master Agreement providing for a Sterling to US Dollar swap, the form of such confirmation is substantially in the form annexed hereto as Exhibit C.
"DCR": Duff & Phelps Credit Rating Company, or its successors.
"Definitive Certificates": As defined in Section 6.8.
"Deposit Agreement": The Deposit Agreement dated as of February 1, 2000 between The Bank of New York, as Book-Entry Depositary, and Yorkshire Finance.
"Depository": The Depository Trust Company.
"Distribution Dates": Each February 15 and August 15, commencing August 15, 2000, through and including the Final Distribution Date.
"Dollar" or "$" or "USD" or "US Dollar": Such currency of the United States as at the time of payment is legal tender for the payment of public and private debts.
"Dollar Distribution": A semi-annual US Dollar payment calculated at an annual interest rate of 8.25% on the basis a 360-day year consisting of twelve months of 30-days each, due on the Certificate Principal Amount.
"Dollar Swap Payment": A semi-annual US Dollar payment made by the Swap Counterparty to the Trustee on behalf of the Certificateholders which is calculated at an annual interest rate of 8.25% on the basis of a 360-day year consisting of twelve months of 30-days each on a $250,000,000 aggregate notional amount.
"Early Redemption Notice": As defined in Section 8.3.
"Early Redemption Right": The right of the holder of the Notes
to require Yorkshire Finance to redeem all but not less than all the Notes at a
redemption price payable in Pounds Sterling equal to 100% of the principal
amount thereof plus accrued but unpaid interest, if any, to such redemption date
on February 15, 2005, which right the parties hereto acknowledge that the
Trustee is required to direct the holder of the Notes to exercise pursuant to
Section 8.3 hereof.
"Eligible Account": Either (i) a segregated account maintained
with a US federal or State chartered depositary institution or trust company the
long-term unsecured debt obligations of which are rated by the Rating Agencies
the higher of (x) at least the then current long-term rating of the Notes and
(y) in one of its two highest long-term rating categories at the time any
amounts are held in deposit therein or (ii) a trust account maintained as a
segregated account and held by a US federal or State chartered depositary
institution or trust company in trust for the benefit of the Certificateholders;
provided, however, that such depositary institution or trust company has a
long-term rating in one of the four highest categories by the Rating Agencies.
"Eligible Expenses": All reasonable out of pocket expenses incurred or made by the Trustee, including costs of collection, in addition to the compensation agreed upon by Yorkshire Group and the Trustee for the Trustee's services. Such expenses shall include the reasonable compensation, expenses and disbursements of the Trustee's agents, counsel and experts, which agents, counsel and experts shall, prior to the occurrence of an Event of Default or an event which with the giving of notice or passing of time or both would constitute an Event of Default, be agreed upon by Yorkshire Group and the Trustee. Yorkshire Group shall pay such expenses.
"Euroclear": The Euroclear Clearance System (or any successor securities clearing agency).
"Event of Default": An Event of Default under the Indenture.
"Exchange Act": The US Securities Exchange Act of 1934, as amended.
"Executive Officer": With respect to any corporation, the Chief Executive Qfficer, the Chief Operating Officer, the Chief Financial Officer, the President, any Vice President, the Secretary, the Treasurer, any Assistant Treasurer or any Assistant Secretary of such corporation.
"Final Distribution": Unless made earlier in the event of a redemption of the Notes pursuant to their terms, the distribution by the Trustee on the Final Distribution Date (i) of all Option Proceeds following an exercise of the Call Option by the Callholder or an exercise of the Early Redemption Right (and upon receipt by the Trust from the Swap Counterparty of US Dollars in an amount equal to the Certificate Principal Amount pursuant to the Currency Swap as a result of such exercise), as the case may be, or (ii) of all Liquidation Proceeds received by the Trustee following a Trust Termination Event and (iii) of all Dollar Swap Payments received by the Trustee, not previously distributed pursuant to Section 4.1 hereof.
"Final Distribution Date": (i) February 15, 2005 in connection with an exercise of the Call Option or the Early Redemption Right or (ii) the Business Day following the receipt by the Trustee of the Liquidation Proceeds in connection with a Trust Termination Event.
"Global Security": The Rule 144A Global Security or the Regulation S Global Security.
"Guarantee": Yorkshire Group's full and unconditional guarantee of the payment of principal of; premium (if any) and interest on the Notes.
"Indenture": The Indenture dated as of February 1, 2000 among Yorkshire Finance, Yorkshire Group and the Indenture Trustee, as to be supple- mented by the Supplemental Indenture.
"Indenture Trustee": The Bank of New York, as indenture trustee, principal paying agent, registrar and transfer agent under the Indenture, or its successors.
"Initial Certificate Principal Balance": The aggregate Certificate Principal Balance as of the Closing Date, which is $250,000,000.
"Initial Purchasers": Warburg Dillon Read LLC and Banc of America Securities LLC.
"Interest": Beneficial interests in 100% of the Book-Entry Interests, which will be shown on records maintained in book-entry form by the Depository.
"ISDA Master Agreement": ISDA Master Agreement, dated as of February 1, 2000, between UBS AG, London Branch and the Trustee, as supplemented and amended by the Schedule thereto.
"Liquidation Proceeds": All amounts, property or proceeds received by the Trustee in connection with a Trust Termination Event.
"Moody's": Moody's Investors Service, Inc., or its successors.
"Notes":(pound)155,000,000 principal amount of Yorkshire Finance's Reset Senior Notes Due February 15, 2020, issued pursuant to the Indenture.
"Officer's Certificate": A certificate signed by, in the case of the Administrative Party, the chairman, president or any vice president of the Administrative Party and, in the case of the Trustee, a Responsible Officer.
"Opinion of Counsel": A written opinion of independent counsel experienced in the matters to be opined on, who may be counsel for Yorkshire Group, but not an employee thereof, who shall be reasonably acceptable to the Trustee. Any Opinion of Counsel pertaining to US federal income tax matters may rely on published rulings of the US Internal Revenue Service.
"Option Proceeds": All amounts received by the Trustee in respect of an exercise of the Call Option by the Callholder or an exercise of the Early Redemption Right by the Book-Entry Depositary at the direction of the Trustee, as the case may be.
"Optional Tax Redemption": The right of Yorkshire Finance to redeem the Notes upon the occurrence of certain events as described in Section 212(d) of the Supplemental Indenture.
"Outstanding": When used with respect to Certificates, means, as of the date of determination, all Certificates theretofore authenticated and delivered under this Agreement (including, as of such date, all Certificates represented by Restricted Global Securities authenticated and delivered under this Agreement), except:
(i) Certificates theretofore cancelled by the Certificate Registrar or delivered to the Certificate Registrar for cancellation; and
(ii) Certificates which have been issued pursuant to Section 6.4 or in exchange for or in lieu of which other Certificates have been authenticated and delivered pursuant to this Agreement, unless proof satisfactory to the Trustee is presented that any such Certificates are held by a bona fide purchaser in whose hands such Certificates are valid obligations of the Trust;
provided, however, that in determining whether the holders of the required percentage of the aggregate Voting Rights of the Certificates have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Certificates beneficially owned by Yorkshire Group, Yorkshire Finance, YPG Holdings or any Affiliate thereof, shall be disregarded and deemed not to be Outstanding, and the Voting Rights to which its Holder would otherwise be entitled shall not be taken into account in determining whether the requisite percentage of aggregate Voting Rights necessary to effect any such consent or take any such action has been obtained, except that (a) in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Certificates which the Trustee actually knows to be so owned shall be so disregarded and (b) the foregoing shall not apply at any time when all of the Outstanding Certificates are owned by Yorkshire Group, Yorkshire Finance, YPG Holdings or an Affiliate thereof. Certificates so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgor establishes to the satisfaction of the Trustee the pledgor's right so to act with respect to such Certificates and that the pledgee is not Yorkshire Group, Yorkshire Finance, YPG Holdings or any Affiliate thereof.
"Participant": A broker, dealer, bank, other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.
"Paying Agent": As defined in Section 6.11.
"Payment Date": The semi-annual dates on which payments will be due on the Notes as provided therein, being the 15th day of each February and August, with the first payment to occur on August 15, 2000.
"Permitted Investments": Direct obligations of or guaranteed by the United Kingdom for the payment of which obligations or guarantee the full faith and credit of the United Kingdom is pledged or overnight Pound Sterling deposits in the London interbank market issued by any bank organized under the laws of the US or any political subdivision thereof or under the laws of Canada, Japan, Switzerland or any country that is a member of the European Union having a rating at least equal to Aa2 by Moody's and AA by S&P.
"Person": Any legal person, including any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity of whatever nature.
"Pounds Sterling": Such currency of the United Kingdom as at the time of payment is legal tender for the payment of public and private debts.
"Predecessor Certificate": With respect to any particular Certificate, every previous Certificate evidencing all or a portion of the same interest as that evidenced by such particular Certificate; and, for the purpose of this definition, any Certificate authenticated and delivered under Section 6.4 in lieu of a mutilated, lost, destroyed or stolen Certificate shall be deemed to evidence the same interest as such mutilated, lost, destroyed or stolen Certificate.
"Proceeding": Any suit in equity, action at law or other judicial or administrative proceeding.
"Purchase Agreement": The Purchase Agreement among Yorkshire Group, Yorkshire Finance; the Trust and the Initial Purchasers, dated February 9, 2000.
"Qualified Institutional Buyer" or "QIB": A "qualified institutional buyer" as defined in paragraph (a) of Rule 144A.
"Rating Agencies": DCR, Moody's and S&P.
"Rating Agency Condition": With respect to any action, that each of the Rating Agencies shall have been given 10 days (or such shorter period as may be acceptable to each Rating Agency) prior notice thereof and that each of the Rating Agencies shall have notified Yorkshire Group and the Trustee in writing that such action will not result in a reduction, withdrawal or qualification of the then current rating of the Certificates.
"Record Date": With respect to any Distribution Date, the close of business on the Business Day immediately preceding such Distribution Date; provided, however, that no Record Date shall be applicable to distributions to be made on the Final Distribution Date.
"Regulation S": Regulation S promulgated under the Securities Act.
"Regulation S Global Security": As defined in Section 5.1.
"Required Percentage": Unless otherwise specified herein, a majority of the aggregate Voting Rights of the Certificates.
"Required Percentage--Amendment": At least 66 2/3% of the aggregate Voting Rights of the Certificates.
"Required Percentage--Direction of Trustee": A majority of the aggregate Voting Rights of the Certificates.
"Required Percentage--Remedies": At least 66 2/3% of the aggregate Voting Rights of the Certificates.
"Required Percentage--Waiver": At least 66 2/3% of the aggregate Voting Rights of the Certificates.
"Responsible Officer": The chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, any assistant vice president, the treasurer, any assistant treasurer, any trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Rule 144": Rule 144 promulgated under the Securities Act.
"Rule 144A": Rule 144A promulgated under the Securities Act.
"Rule 144A Global Security": As defined in Section 5.1.
"Rule 144A Information": As defined in Section 4.6.
"S&P": Standard and Poor's Ratings Services, a division of The McGraw-Hill Companies, or its successor.
"Securities Act": The US Securities Act of 1933, as amended.
"Settlement Date": February 15, 2005 or, if such day is not a Business Day, the next succeeding Business Day.
"State": Any one of the fifty states of the United States or the District of Columbia.
"Sterling Swap Payment": A semi-annual payment made by the Trustee to the Swap Counterparty which is calculated to equal the Pound Sterling semi-annual interest payment required to be made by Yorkshire Finance on the Notes.
"Successor Certificate": Of any particular Certificate, every Certificate issued after, and evidencing all or a portion of the same interest as that evidenced by, such particular Certificate; and, for the purposes of this definition, any Certificate authenticated and delivered under Section 6.4 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Certificate shall be deemed to evidence the same interest as such mutilated, destroyed, lost or stolen Certificate.
"Supplemental Indenture": The First Supplemental Indenture, dated as of February 16, 2000, among Yorkshire Finance, Yorkshire Group and the Indenture Trustee to the Indenture.
"Swap Counterparty": UBS AG, London Branch, or its successors.
"Swap Payment": Either of a Dollar Swap Payment or a Sterling Swap Payment.
"Swap Termination Event" shall mean the termination of the Currency Swap in accordance with its terms on February 15, 2005 (or, if such day is not a Business Day, the next succeeding Business Day) unless earlier terminated as a result of (a) the failure for 30 days by the Trustee to make a Sterling Swap Payment thereunder, (b) the failure by the Swap Counterparty to make a Dollar Swap Payment thereunder or such failure is not remedied on or before the third Business Day after notice of such failure is given by the Trustee to the Swap Counterparty, (c) the occurrence of a Conversion Event, (d) the occurrence of a redemption date for the Notes as a result of an Optional Tax Redemption, (e) the commencement of insolvency, conservatorship or receivership proceedings in respect of the Trust or (f) certain other events as described in the Currency Swap.
"Swap Termination Payment": Following a Swap Termination Event (other than as a result of a Conversion Event or an Optional Tax Redemption), payment of the amount, if any, due to the Trustee calculated as provided in the Currency Swap.
"Trust": Yorkshire Power Pass-Through Asset Trust 2000-1, the trust created hereby and to be administered hereunder for the benefit of the Certificateholders, the corpus of which consists of the Trust Assets.
"Trust Assets": (i) the Interest and the rights of the Trustee, as the holder of the Interest, under the Deposit Agreement, (ii) the rights of the Trustee under the Call Option, (iii) the rights of the Trustee under the Currency Swap and (iv) except as otherwise provided by Section 3.3, any funds on deposit in the Certificate Account, together with, in each case, any payments received by the Trustee in connection with any such assets.
"Trust Termination Event": The first to occur of (a) the discharge by Yorkshire Finance and Yorkshire Group of all of their obligations in respect of the Notes and the Guarantee following a Conversion Event, either by (i) payment in full of all amounts thereby due and payable under the Notes and the Guarantee or (ii) payment of a lesser amount which all Certificateholders agree shall be a complete satisfaction and discharge of Yorkshire Finance's and Yorkshire Group's obligations in respect of the Notes and the Guarantee or (b) the final adjudication or settlement of all claims in respect of the Notes and the Guarantee following a bankruptcy, reorganization or similar proceeding of Yorkshire Finance or Yorkshire Group or (c) the occurrence of a redemption date for the Notes as a result of an Optional Tax Redemption.
"Trustee": The Bank of New York or any co-trustee appointed pursuant to Section 9.8, until a successor Person shall have become the Trustee pursuant to the applicable provisions of this Agreement, and thereafter "Trustee" shall mean such successor Person.
"UK Tax Resident": Any person who is resident or ordinarily resident in the United Kingdom for United Kingdom tax purposes.
"Uniform Commercial Code": The Uniform Commercial Code as in effect in the relevant jurisdiction.
"United States" or "US": The United States of America (including the States), its territories, its possessions and other areas subject to its jurisdiction.
"Unpaid Amounts": Shall have the meaning set forth in the Currency Swap.
"Voting Rights": Each Certificate shall have the right to one vote for each $1,000 of the Certificate Principal Balance thereof.
"Yorkshire Finance": Yorkshire Power Finance 2 Limited, a private company with limited liability incorporated under the laws of the Cayman Islands.
"Yorkshire Group": Yorkshire Power Group Limited, a private limited company incorporated under the laws of England and Wales.
"YPG Holdings": YPG Holdings LLC, a limited liability company formed under the laws of the State of Delaware.
SECTION 1.2. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles as in effect in the United States from time to time;
(iii) "or" is not exclusive;
(iv) the words "herein", "hereof", "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision;
(v) "including" means including without limitation; and
(vi) words in the singular include the plural and words in the plural include the singular.
ARTICLE II
Declaration of Trust: Issuance of Certificates
SECTION 2.1. Creation and Declaration of Trust: Purchase of Interests.
(a) Pursuant to the terms of this Agreement, a business trust to be known as "Yorkshire Power Pass-Through Asset Trust 2000-1" is hereby created.
(b) Concurrently with the execution and delivery hereof, the Trustee shall enter into the Purchase Agreement. Pursuant to the Purchase Agreement, on the Closing Date, the Trustee shall (i) issue the Certificates, each Certificate representing an undivided beneficial interest in the Trust Assets, to or as requested by the Initial Purchasers, (ii) instruct the Depository to register the Interest in the name of the Trustee, on behalf of and for the benefit of the Certificateholders, in consideration for the net proceeds received by the Trust from the issue of the Certificates and the Call Option, (iii) grant the Call Option to the Callholder, on behalf of and for the benefit of the Certificateholders, and (iv) enter into the Currency Swap on behalf of and for the benefit of the Certificateholders. The Trust Assets shall be held by the Trustee for the benefit of the Certificateholders.
(c) In connection with the establishment of the Trust, and for the consideration stated in the Purchase Agreement, which the Trustee shall cause to be remitted to Yorkshire Finance (or an agent on behalf of Yorkshire Finance) on the Closing Date, Yorkshire Finance shall, not later than the Closing Date, issue the Notes to the Book-Entry Depositary and instruct the Book-Entry Depositary to, not later than the Closing Date, issue the Book-Entry Interests to the Depository or its nominee (registered in the name of the Depository or its nominee). The bearer security representing the Notes shall be held by the Book-Entry Depositary.
(d) The Trustee hereby (i) accepts the trusts created hereunder in accordance with the provisions of this Agreement but subject to the Trustee's obligation, as and when the same may arise, to make any payment or other distributions of Trust Assets as may be required pursuant to this Agreement and the Certificates and (ii) agrees to perform the duties herein required and that any failure to receive reimbursement of Eligible Expenses under Section 9.5 hereof shall not release the Trustee from its duties herein or therein.
SECTION 2.2. Representations and Warranties. (a) Yorkshire Group hereby represents and warrants to the Trustee that as of the Closing Date:
(i) Yorkshire Group has been duly incorporated and is validly existing as a private limited company under the laws of England and Wales;
(ii) This Agreement has been duly authorized by Yorkshire Group and has been duly executed and delivered by Yorkshire Group, and, assuming due authorization, execution and delivery of this Agreement by the other parties hereto, this Agreement will constitute a valid and binding obligation of Yorkshire Group, enforceable against it in accordance with its terms except as may be limited by bankruptcy, insolvency, or other similar laws affecting the enforcement of creditors' rights in general and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing; and
(iii) The execution, delivery and performance by Yorkshire Group of this Agreement and the consummation by Yorkshire Group of the transactions contemplated herein and compliance by Yorkshire Group with its respective obligations hereunder shall have been duly authorized by all necessary action (corporate or otherwise) on the part of Yorkshire Group and do not and will not result in any violation of the charter or bylaws of Yorkshire Group and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of Yorkshire Group under (A) any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which Yorkshire Group is a party or by which it may be bound or to which any of its properties may be subject (except for conflicts, breaches or defaults which would not, individually or in the aggregate, be materially adverse to Yorkshire Group or materially adverse to the transactions contemplated by this Agreement), (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, or any regulatory body or administrative agency or other governmental body having jurisdiction over Yorkshire Group or any of its properties (except for conflicts which would not, individually or in the aggregate, be materially adverse to Yorkshire Group or materially adverse to the transactions contemplated by this Agreement), or (C) the PES License (as defined in Yorkshire Group's Annual Report on Form 10-K for the fiscal year ended March 31, 1999 filed with the Commission under the Exchange Act).
(b) YPG Holdings hereby represents and warrants to the Trustee that as of the Closing Date:
(i) YPG Holdings has been duly formed and is validly existing as a limited liability company under the laws of the State of Delaware;
(ii) This Agreement has been duly authorized by YPG Holdings and has been duly executed and delivered by YPG Holdings, and, assuming due authorization, execution and delivery of this Agreement by the other parties hereto, this Agreement will constitute a valid and binding obligation of YPG Holdings, enforceable against it in accordance with its terms, except as may be limited by bankruptcy, insolvency, or other similar laws affecting the enforcement of creditors' rights in general and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing; and
(iii) The execution, delivery and performance by YPG Holdings of this Agreement and the consummation by YPG Holdings of the transactions contemplated herein and compliance by YPG Holdings with its respective obligations hereunder shall have been duly authorized by all necessary action (limited liability company or otherwise) on the part of YPG Holdings and do not and will not result in any violation of the operating agreement or other organizational document of YPG Holdings and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of YPG Holdings under (A) any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which YPG Holdings is a party or by which it may be bound or to which any of its properties may be subject (except for conflicts, breaches or defaults which would not, individually or in the aggregate, be materially adverse to YPG Holdings or materially adverse to the transactions contemplated by this Agreement) or (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, or any regulatory body or administrative agency or other governmental body having jurisdiction over YPG Holdings or any of its properties (except for conflicts which would not, individually or in the aggregate, be materially adverse to YPG Holdings or materially adverse to the transactions contemplated by this Agreement).
(c) It is understood and agreed that the representations and warranties set forth in this Section 2.2 shall survive delivery of the respective documents to the Trustee and shall inure to the benefit of the Trustee on behalf of the Certificateholders.
Upon discovery by either Yorkshire Group, the Administrative Party or the Trustee of a breach of any of the foregoing representations and warranties which materially and adversely affects the interests of the Certificateholders, the party discovering such breach shall give prompt written notice thereof to the other parties.
SECTION 2.3. Breach of Representation. Warranty or Covenant. Within 60 days of the earlier of discovery by Yorkshire Group or the Administrative Party or receipt of notice by Yorkshire Group or the Administrative Party of a breach of any of their respective representations or warranties set forth in Section 2.2 that materially and adversely affects the interests of the Certificateholders, such breaching party shall cure such breach in all material respects.
SECTION 2.4. Agreement to Authenticate and Deliver Certificates. Concurrently with the purchase by it of the Interest, the entering into of the Currency Swap and the granting of the Call Option, the Trustee hereby agrees and acknowledges that it will cause to be authenticated and delivered to or upon the order of the Initial Purchasers, in exchange for the consideration set forth in the Purchase Agreement, Certificates duly authenticated by or on behalf of the Trustee in authorized denominations evidencing ownership of the entire Trust, all in accordance with the terms and subject to the conditions of Sections 6.2 and 6.10.
ARTICLE III
Administration of Trust
SECTION 3.1. Administration of Trust.
(a) The Trustee shall administer the Trust Assets for the benefit of the Certificateholders. Subject to Article IX hereof and the terms of the Certificates, the Call Option and the Currency Swap, the Trustee shall have full power and authority to do or cause to be done any and all things in connection with such administration which it deems necessary to comply with the terms of this Agreement.
(b) The duties of the Trustee shall be performed in accordance with applicable local, State and US federal law.
SECTION 3.2. Receipt of Trust Asset Payments. The Trustee shall receive and accept, for the benefit of Certificateholders, all payments made under the Trust Assets in a manner consistent with the terms of this Agreement and such Trust Assets.
SECTION 3.3. Certificate Account.
(a) The Trustee shall establish and maintain an Eligible Account held in trust for the benefit of the Certificateholders (the "Certificate Account"). The Trustee on behalf of such Certificateholders shall possess all right, title and interest in all funds on deposit from time to time in the Certificate Account and in all proceeds thereof. The Certificate Account shall be under the sole dominion and control of the Trustee for the benefit of the Certificateholders. The Trustee shall deposit or cause to be deposited in the Certificate Account promptly (and in no event later than 11:00 a.m. (New York City time) on the day of receipt of such amounts) all amounts collected with respect to the Trust Assets, including:
(i) for so long as the Notes are denominated in Pounds Sterling and no Swap Termination Event has occurred, any Dollar Swap Payment or other US Dollar amount paid by the Swap Counterparty to the Trustee under the Currency Swap;
(ii) if a Swap Termination Event (other than as a result of a Conversion Event or an Optional Tax Redemption) has occurred, the semi-annual interest payments on the Notes and payments on or in respect of the principal of the Notes made by Yorkshire Finance thereunder or, if applicable, Yorkshire Group under the Guarantee and received by the Trustee in respect of the Interest or, if applicable, any Swap Termination Payment or Unpaid Amounts;
(iii) if a Conversion Event has occurred, the semi-annual interest payments on the Notes and payments of or in respect of the principal of the Notes made by Yorkshire Finance thereunder or, if applicable, Yorkshire Group under the Guarantee and received by the Trustee in respect of the Interest or, if applicable, any Unpaid Amounts;
(iv) all Option Proceeds; and
(v) all Liquidation Proceeds.
The Trustee shall withdraw or cause to be withdrawn from the Certificate Account, on the date of payment therefor, all Sterling Swap Payments to be paid by the Trustee to the Swap Counterparty.
The proceeds of the Call Price shall be invested in Permitted Investments which shall mature no later than the Final Distribution Date and may be so invested as directed by the Callholder. Any interest or investment income received on the Call Price from the Business Day prior to the Settlement Date to the Settlement Date deposited in the Certificate Account will not constitute property of the Trust and shall not be available to Certificateholders. The Trustee shall remit all such income to the Callholder on the Final Distribution Date.
It is understood and agreed that payments in the nature of prepayment or redemption penalties, late payment charges or assumption fees which may be received by the Trustee shall be deposited by the Trustee in the Certificate Account and shall not be retained by the Trustee for its own account.
If, at any time, the Certificate Account ceases to be an Eligible Account, the Trustee shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, as to which the Rating Agency Condition is met) establish a new Certificate Account meeting the conditions for an Eligible Account and transfer any cash and any investments (as described in the second preceding paragraph) on deposit in the Certificate Account to such new Certificate Account and from the date such new Certificate Account is established, it shall be the Certificate Account.
(b) The Trustee shall give notice to Yorkshire Group and the Rating Agencies of any proposed change to the location of the Eligible Account constituting the Certificate Account and shall not effect such change unless the Rating Agency Condition is satisfied.
(c) As provided in the Currency Swap, on each February 15 and August 15 (or, the immediately succeeding Business Day, if such February 15 or August 15 is not a Business Day), commencing August 15, 2000, the Swap Counterparty will pay a Dollar Swap Payment to the Trustee and the Trustee will pay a Sterling Swap Payment to the Swap Counterparty. Following a Swap Termination Event under the Currency Swap, the Currency Swap will terminate and no further scheduled payments will be owed by the Trustee or the Swap Counterparty under the Currency Swap (it being understood that any unpaid Dollar Swap Payment or other US Dollar amount owing by the Swap Counterparty at the time of such Swap Termination Event shall remain due and owing and that, in the case of a Swap Termination Event (other than as a result of a Conversion Event or an Optional Tax Redemption), the Trustee on behalf of the Certificateholders shall have a claim against the Swap Counterparty for any Swap Termination Payment).
(d) Upon the occurrence of a Conversion Event, the Notes shall in accordance with the terms of the Indenture automatically become US Dollar denominated Notes with a principal amount equal to the Certificate Principal Amount, effective from the date of the preceding interest payment date with respect to the Notes, with an annual interest rate of 8.25% until the Final Distribution Date, payable on February 15 and August 15 of each year. Upon such conversion, all distributions on the Certificates shall be payable from amounts paid by Yorkshire Finance under the Notes or, if applicable, Yorkshire Group under the Guarantee and received by the Trustee in respect of the Interest or, if applicable, any Unpaid Amounts.
SECTION 3.4. Realization Union Defaulted Notes. Subject to the
provisions of Article IX hereof, the Trustee, on behalf of the
Certificateholders, shall take such reasonable steps as are necessary to receive
payment or to permit recovery with respect to the Interest; provided, however,
that if, notwithstanding the Trustee's efforts, payment has not been made on the
Interest and an Event of Default has occurred, the Trustee's sole obligation in
respect of the Interest shall be to undertake the procedures set forth in
Section 6.13 hereof.
SECTION 3.5. Access to Certain Documentation. The Trustee shall provide to any US federal, State or local regulatory authority that may exercise authority over any Certificateholder or Certificate Owners or to any United Kingdom or Cayman Island tax authority access to the documentation regarding the Trust Assets required by applicable laws and regulations. Such access shall be afforded without charge, but only upon reasonable request and during normal business hours at the offices of the Trustee designated by such regulatory authorities. In addition, access to the documentation regarding the Trust Assets will be provided to any Certificateholder or Certificate Owner upon reasonable request during normal business hours at the Corporate Trust Office at the expense of the Certificateholder or Certificate Owner requesting such access. Additionally, the Trustee shall provide at the request of any Certificateholder without charge to such Certificateholder the name and address of each Certificateholder as recorded in the Certificate Register for purposes of contacting the other Certificateholders with respect to their rights hereunder or for the purposes of effecting purchases or sales of the Certificates, subject to the transfer restrictions set forth herein. Yorkshire Group shall assist the Trustee in fulfilling any such request.
SECTION 3.6. Expenses of Trust. Yorkshire Group hereby agrees to pay to each Person to whom the Trust becomes indebted or liable the full
amount, when and as due, of any indebtedness, expenses or liabilities of the Trust, other than under the Certificates, the Currency Swap or the Call Option.
SECTION 3.7. No Merger or Consolidation of Trust. The Trust may not merge with or into, convert into, consolidate or amalgamate with or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to, any other Person.
SECTION 3.8. Exchange Rate Agency Agreement. The Trust will appoint the Trustee as the agent under an exchange rate agency agreement, and will enter into such an agreement with the Trustee, provided that such agreement shall have such terms and provisions as are reasonably acceptable to the Trustee, promptly upon the occurrence of any event that, with the passage of time or the giving of notice or both, would constitute, and in no event later than the occurrence of, a Swap Termination Event (other than a Conversion Event or an Optional Tax Redemption).
ARTICLE IV
Distributions and Reports to Certificateholders: Transfer of Certificates
SECTION 4.1. Distributions.
(a) On each Distribution Date, the Trustee shall distribute to the Certificateholders, to the extent of Available Funds, if any, the Dollar Distribution; provided, however, that if any such date is not a Business Day, the Trustee shall make such distribution on the next succeeding Business Day; provided, further, that if the Trustee has not received a Dollar Swap Payment or other US Dollar amount owed by the swap Counterparty to the Trustee under the Currency Swap by 11:00 a.m. (New York City time) on such Distribution Date (or, if such Distribution Date occurs on or after a Conversion Event, if the Trustee has not received any payment owed on the Interest by 11:00 a.m. (New York City time) on such Distribution Date), or by 11:00 a.m. (New York City time) on any Business Day succeeding such Distribution Date, as applicable, the Trustee shall upon receipt of such funds make such distribution no later than the next succeeding Business Day (and no additional amounts shall accrue on the Certificates or be owed to Certificateholders as a result of any such delay); and provided, further, that, on each Distribution Date occurring on or after a Swap Termination Event (other than as a result of a Conversion Event or an Optional Tax Redemption), the Trustee shall distribute to the Certificateholders, to the extent of Available Funds, if any, a semi-annual Pounds Sterling payment calculated at an annual interest rate as described in the indenture on the basis of a 365 or 366-day, as applicable, year and the actual number of days elapsed due on the principal amount of the Notes (subject to the provisos set forth above). Any funds held by the Trustee hereunder as a result of a delay shall be held uninvested and without liability for interest thereon.
(b) Dollar Distributions or Pounds Sterling distributions, as the case may be, to the Certificateholders with respect to each Distribution Date will be made to the Certificateholders of record on the related Record Date (except as otherwise provided in Section 10.1 hereof in respect of the Final Distribution).
(c) All Dollar Distributions or Pounds Sterling distributions, as the case may be, to Certificateholders shall be allocated pro rata among the Certificateholders based on the respective principal balance of the Certificates held by each such Certificateholder as of the Record Date with respect to such Distribution Date.
(d) Subject to Section 4.1(a) and Section 4.2, the Trustee will pay in immediately available funds on each Distribution Date all amounts payable to each Certificateholder with respect to any Certificate held by such Certificateholder or its nominee (without the necessity for any presentation or surrender thereof or any notation of such payment thereon) in the manner and at the address as each Certificateholder may from time to time direct the Trustee in writing fifteen days prior to such Distribution Date requesting that such payment will be so made and designating the bank account to which such payment shall be made. The Trustee shall be entitled to rely on the last instruction delivered by the Certificateholder pursuant to this Section 4.1(d) unless a new instruction is delivered at least fifteen days prior to a Distribution Date.
(e) The rights of the Certificateholders to receive Dollar Distributions or Pounds Sterling distributions, as the case may be, in respect of the Certificates, and all interests of the Certificateholders in such Dollar Distributions or Pounds Sterling distributions, as the case may be, shall be as set forth herein. The Trustee shall in no way be responsible or liable to the Certificateholders nor shall any Certificateholder in any way be responsible or liable to any other Certificateholder in respect of amounts previously distributed on the Certificates based on their respective Certificate Principal Balances.
SECTION 4.2. Final Distributions.
(a) On the Final Distribution Date, the Trustee shall distribute to Certificateholders (in addition to the Dollar Distribution or Pounds Sterling distribution, as the case may be, as provided in Section 4.1) an amount equal to the Option Proceeds or the Liquidation Proceeds, as the case may be, plus any other amount received in respect of the Currency Swap on the Final Distribution Date, plus any additional amounts remaining in the Certificate Account on the Final Distribution Date after the payment of amounts, if any, due to the Callholder pursuant to Section 3.3 hereof provided, however, if the Final Distribution Date is not a Business Day, the Trustee shall make such distribution on the next succeeding Business Day; and provided, further, that if the Trustee has not received such amounts by 11:00 a.m. (New York City time in the case of Dollars, and London time in the case of Pounds Sterling) on any Business Day, the Trustee shall upon receipt of such funds make such distribution no later than the next succeeding Business Day (and no additional amounts shall accrue on the Certificates or be owed to Certificateholders as a result of any such delay).
(b) Except as otherwise provided in Article X, the Final Distribution shall be made to the Certificateholders only upon the presentation and surrender of such Certificates at a designated office of the Trustee in New York City or such other office of the Trustee as may be specified in the notice referred to in Section 11.6.
(c) Except as otherwise provided in Article X, in connection with the Final Distribution, no later than 30 days preceding the Final Distribution Date, the Trustee shall give notice to each Certificateholder:
(i) of the date that the Trustee expects that the Final Distribution will be made but only upon presentation and surrender of Certificates at the Corporate Trust Office or such other office of the Trustee specified in such notice;
(ii) of the expected amount of the Final Distribution for each Certificate per initial $100,000 Certificate Principal Balance; and
(iii) that the Record Date otherwise applicable to the Final Distribution is not applicable and distributions will be made to Certificateholders only upon presentation and surrender of the Certificate or Certificates of each such Certificateholder at the Corporate Trust Office or such other specified office or agency of the Trustee.
(d) Any funds not distributed to a Certificateholder on the Final Distribution Date because of the failure of such Certificateholder to tender its Certificate or Certificates shall, on such date, be set aside and held in trust and credited to the account of such non-tendering Certificateholder. If any Certificates as to which notice has been given pursuant to this Section 4.2 shall not have been surrendered for cancellation within six months after the date specified in such notice, the Trustee shall give a second notice to the remaining non-tendering Certificateholders to surrender their Certificates for cancellation in order to receive the Final Distribution with respect thereto. If within one year after the second notice all such Certificates shall not have been surrendered for cancellation, subject to applicable laws with respect to escheat of funds, such amounts shall be discharged from the Trust and be paid by the Trustee to the Administrative Party; and such Certificateholder shall thereafter, as an unsecured general creditor, look only to the Administrative Party for payment thereof (but only to the extent of the amounts so paid to the Administrative Party), and all liability of the Trustee with respect to such trust moneys shall thereupon cease. Upon receipt of such amounts from the Trustee, the Administrative Party shall set up a non-interest bearing trust account containing such funds for the benefit of such Certificateholders. The costs and expenses of maintaining the funds in trust shall be paid from the assets remaining in trust. No interest shall accrue on or be payable to any Certificateholder on any amount held in trust as a result of such Certificateholder's failure to surrender its Certificate or Certificates for the Final Distribution in respect thereto in accordance with this Section 4.2.
SECTION 4.3. Reports to Certificateholders. On the Business Day following each Distribution Date, the Trustee shall forward or cause to be forwarded to Yorkshire Group and each Certificateholder, a statement setting forth the amount of the distribution on such Distribution Date to Certificateholders allocable to principal of and interest on the Notes and the amount of aggregate unpaid interest accrued on the Notes as of such Distribution Date. Such amounts shall be expressed as a US Dollar amount per minimum denomination of Certificates or for such other specified portion thereof. Within the prescribed period of time for tax reporting purposes after the end of each calendar year during the term of this Agreement, the Trustee shall furnish (or cause to be furnished), to each person who at any time during such calendar year shall have been a holder of record of Certificates and received any payment
thereon, a statement containing such information as may be required by the Code and applicable US Treasury Department regulations to enable such Certificateholder to prepare its US federal income tax returns and as shall have been provided to the Trustee by the Administrative Party, except as to the amounts of payments made to holders of record of Certificates.
SECTION 4.4. Compliance with Withholding Requirements: Tax Treatment and Reporting.
(a) Notwithstanding any other provision of this Agreement to
the contrary, the Trustee shall comply with all US federal withholding
requirements respecting distributions to Certificateholders that the Trustee
reasonably believes are applicable under the Code (including any requirements to
withhold at reduced rates upon receipt of appropriate US federal tax forms). The
consent of Certificateholders or beneficial owners of Certificates shall not be
required for such withholding. In the event the Trustee does withhold any amount
from distributions to any Certificateholders pursuant to US federal withholding
requirements, the Trustee shall indicate in the statement required pursuant to
Section 4.3 the amount so withheld.
(b) The Trustee shall (i) use all reasonable efforts to ensure that neither it nor the Trust becomes a UK Tax Resident, (ii) maintain (or cause to be maintained) the books of the Trust on a calendar year basis using the accrual method of accounting, (iii) pursuant to instructions from the Administrative Party, file such tax returns relating to the Trust and make such elections as may from time to time be required or appropriate under any applicable State or US federal statute or rule or regulation thereunder so as to maintain the Trust's characterization as a grantor trust for US federal income tax purposes, (iv) cause such tax returns to be signed in the manner required by law, and (v) collect and pay over (or cause to be collected and paid over) to the appropriate governmental authority any withholding tax as described in and in accordance with Section 4.4(a) with respect to income or distributions to Certificateholders.
SECTION 4.5. Transfer of Certificates.
(a) General. A Certificateholder may, in any transaction or series of transactions, directly or indirectly (each of the following, a "transfer"), (i) sell, assign or otherwise in any manner dispose of all or any part of its interest in any Certificate issued to it, whether by act, deed, merger or otherwise, or (ii) mortgage, pledge or create a lien or security interest in such beneficial interest, in each case, only if such transfer satisfies the conditions set forth in this Section 4.5. No purported transfer of any interest in any Certificate or any portion thereof which is not made in accordance with this Section 4.5 shall be given effect by or be binding upon the Trust or the Trustee and any such purported transfer shall be null and void ab initio and vest in the transferee no rights against the Trust or the Trustee.
(b) Conditions to Transfer. Subject to the requirements contained in Articles V and VI hereof, a Certificateholder may sell or otherwise transfer a Certificate or its beneficial interest in a Certificate only (A)(i) to the Trust, (ii) pursuant to a registration statement which has been declared effective under the Securities Act, (iii) for so long as the Certificates are eligible for resale pursuant to Rule 144A, to a person it reasonably believes is a QIB that purchases for its own account or for the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 1 44A, (iv)
pursuant to offers and sales to non-US persons that occur outside the US within the meaning of Regulation S or (v) pursuant to any other available exemption from the registration requirements of the Securities Act and (B) to a person who is not a UK Tax Resident.
(c) Invalid Transfers. If the Trustee or the Certificate Registrar determines that (i) a transfer or attempted or purported transfer of any interest in any Certificate was consummated in reliance on an incorrect form or certification from the transferee or purported transferee, (ii) a transferee failed to deliver to the Trustee or the Certificate Registrar any form or certificate required to be delivered hereunder or (iii) the holder of any interest in a Certificate is in breach of any representation or agreement set forth in any certificate or any deemed representation or agreement of such holder, the Certificate Registrar will not register such attempted or purported transfer and if a transfer has been registered, such transfer shall be absolutely null and void ab initio and vest no rights in the purported transferee (such purported transferee, a "Disqualified Transferee") and the last preceding Holder of such Certificate that was not a Disqualified Transferee shall be restored to all rights as a Holder thereof retroactively to the date of transfer of such Certificate by such Holder, except as to any payments made to such transferee prior to receipt by the Trustee of notice or other evidence that such transferee was a Disqualified Transferee.
In addition, the Trustee may require that the interest in the Certificate purported to be transferred to a Disqualified Transferee be transferred to any Person (other than YPG Holdings or one of its Affiliates) designated by YPG Holdings at a price determined by YPG Holdings based upon its estimation of the prevailing price of such interest and each Certificateholder, by acceptance of an interest in a Certificate, authorizes the Trustee to take such action. In any case, neither the Trustee nor the Certificate Registrar will be held responsible for any losses that may be incurred as a result of any required transfer under this Section 4.5(c).
Notwithstanding anything contained herein to the contrary, neither the Trustee nor the Certificate Registrar shall be responsible for ascertaining whether or not any transfer complies with the registration provisions of or exemptions from, or is otherwise not subject to the provisions of, the Securities Act or applicable state securities law; provided that if a certificate is specifically required to be delivered to the Trustee or the Certificate Registrar by a purchaser or transferee of a Certificate, the Trustee or the Certificate Registrar shall be under a duty to examine the same to determine whether it conforms to the requirements of this Agreement and shall promptly notify the party delivering the same if such certificate does not conform.
SECTION 4.6. Rule 144A Information. At any time when the Trust is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of any Certificateholder and provided that Yorkshire Group shall have complied with the succeeding sentence, the Trust shall promptly furnish to such Certificateholder or to a prospective purchaser of a Certificate designated by such Certificateholder, as the case may be, the information required to be delivered pursuant to paragraph (d)(4) of Rule 144A in order to permit compliance by such Certificateholder with Rule 144A in connection with the resale of such Certificate by such Certificateholder. Yorkshire Group will provide to the Trust, in a timely manner, the information required to be delivered by the Trust under this Section 4.6.
ARTICLE V
Security Forms
SECTION 5.1. Forms Generally. The Certificates and the Trustee's certificates of authentication thereof shall be in substantially the forms set forth in Exhibit A, with such appropriate legends, insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution of the Certificates.
Certificates offered and sold in their initial distribution in reliance on Rule 144A shall be issued in the form of one or more Restricted Global Securities (collectively, and, together with their Successor Certificates, the "Rule 144A Global Security"). Certificates offered and sold in their initial distribution in reliance on Regulation S shall be issued in the form of one or more Regulation S Global Securities (collectively, and, together with their Successor Certificates, the "Regulation S Global Security"). Each of the Rule 144A Global Security and the Regulation S Global Security shall be in fully registered form without interest coupons, substantially in the form of Certificate set forth in Exhibit A, with such applicable legends as are provided for in Sections 5.2 and 6.8(a), except as otherwise permitted herein, and initially shall be registered in the name of the Depository or its nominee and deposited with The Bank of New York, as custodian for the Depository, at the corporate trust business office of The Bank of New York, duly executed by the Trust and authenticated by the Trustee as hereinafter provided, for credit by the Depository to the respective accounts of beneficial owners of the Certificates represented thereby (or such other accounts as they may direct).
SECTION 5.2. Restricted Legend.
(a) All Certificates initially issued hereunder shall, upon issuance, bear the applicable legends as are provided in Section 5.2(c) and such legends shall not be removed except as set forth in Section 5.2(b) or unless the Trustee determines otherwise based upon a Company Order (which shall state that such Certificate may be issued without such legend in accordance with applicable law) delivered to the Trustee (and the Certificate Registrar, if other than the Trustee).
(b) Unless with respect to the whole or any portion of any
Certificate that bears or is required to bear the applicable legends as are
provided in Section 5.2(c) the Trustee determines otherwise as provided in
Section 5.2(a), such legends shall be removed by the Trustee (i) in the case of
the Rule 144A Global Security or any Definitive Certificate issued in exchange
for an interest therein, upon presentation thereof by the Certificateholder to
the Trustee at any time on or after the occurrence of the "Resale Restriction
Termination Date" specified in such legends and (ii) in the case of the
Regulation S Global Security or any Definitive Certificate issued in exchange
for an interest therein, upon presentation thereof by the Certificateholder to
the Trustee at any time on or after the expiration of the "distribution
compliance period" (within the meaning of Regulation S). If a holder of a
beneficial interest in the Rule 144A Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Regulation S Global Security, or if a holder of a beneficial interest in the Regulation S Global Security wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Global Security, upon receipt by the Trustee of (A) written instructions given in accordance with the rules and procedures of the Depository (together with, as applicable, the rules and procedures of Euroclear and Clearstream, Luxembourg, the "Applicable Procedures") from the applicable Participant directing the Trustee to cause to be credited to another account of a Participant a beneficial interest in the Regulation S Global Security or the Rule 144A Global Security (as the case may be) equal to that of the beneficial interest in the Rule 144A Global security or the Regulation S Global Security (as the case may be) to be so transferred, (B) a written order given in accordance with the Applicable Procedures containing information regarding such other account, as well as the account of Euroclear or Clearstream, Luxembourg (as the case may be) for which such other account is held, to be credited with, and the account of such applicable Participant to be debited for, such beneficial interest and (C) a certificate satisfactory to Yorkshire Group, YPG Holdings, the Trust and the Trustee, as to such transfer's compliance with the registration requirements of the Securities Act, given by the transferor of such beneficial interest, the Trustee shall (1) reduce or increase (as the case may be) the principal amount of the Rule 144A Global Security, and increase or reduce (as the case may be) the principal amount of the Regulation S Global Security, in each case by an amount equal to the principal amount of the beneficial interest in the Rule 144A Global Security or the Regulation S Global Security (as the case may be) to be so transferred, as evidenced as provided in Section 6.8(c) and (2) instruct the Depository to credit and debit such beneficial interests to the respective accounts specified in the instructions referred to above.
(c) Each Certificate initially issued hereunder shall, upon issuance, bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THIS CERTIFICATE MAY NOT BE PURCHASED, ACQUIRED OR HELD BY, OR SOLD OR OTHERWISE TRANSFERRED TO, ANY PERSON WHO IS RESIDENT OR ORDINARILY RESIDENT IN THE UNITED KINGDOM FOR TAX PURPOSES (A "UK TAX-RESIDENT"). ANY PURPORTED TRANSFER TO A UK TAX-RESIDENT SHALL BE NULL AND VOID AND OF NO EFFECT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS CERTIFICATE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY AFFILIATE OF THE TRUST WAS THE OWNER OF THIS CERTIFICATE (OR ANY PREDECESSOR OF THIS CERTIFICATE) OR THE EXPIRATION OF SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY
RULE 144(k), OR ANY SUCCESSOR PROVISION THEREOF, UNDER THE SECURITIES ACT, ONLY (A) TO THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUST, YORKSHIRE POWER FINANCE 2 LIMITED, YORKSHIRE POWER GROUP LIMITED AND THE TRUSTEE PRIOR TO SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE AS TO COMPLIANCE WITH CERTAIN CONDITIONS TO TRANSFER IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE OR SUCH EARLIER TIME AS DETERMINED BY THE TRUST IN ACCORDANCE WITH APPLICABLE LAW.
ARTICLE VI
The Certificates
SECTION 6.1. Designation: Certificate Principal Amount and Denominations. There is hereby created a series of trust certificates to be issued pursuant to this Agreement to be known as" 8.25% Pass-Through Asset Trust Securities Due February 15, 2005". The Certificates shall be issued in the form of one or more Global Securities as set forth in Section 6.8 hereof. Except as provided in Section 6.4, the maximum Certificate Principal Balance that may be authenticated and delivered under this Agreement is $250,000,000. The Certificates are issuable in minimum denominations of $100,000 and in integral multiples of $1,000 in excess thereof.
SECTION 6.2. Execution, Authentication and Delivery.
(a) The Certificates shall be executed by the Trustee, on behalf of the Trust. The signature may be manual or facsimile. Certificates bearing the manual or facsimile signature of individuals who were at any time the proper officers of the Trustee shall be binding, notwithstanding that such individuals or any of them have ceased to bold such offices prior to the authentication and delivery of such Certificates or did not hold such offices at the date of such Certificates.
(b) The Certificates that are executed, authenticated and delivered by the Trustee to or upon the Company Order on the Closing Date shall be dated the Closing Date. All other Certificates that are executed and authenticated after the Closing Date for any other purpose under the Agreement shall be dated the date of their authentication. Except as provided in Section 6.4, the Certificates shall all be originally issued on the Closing Date.
(c) No Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, unless there appears on such Certificate a certificate of authentication substantially in one of the forms provided for herein executed by the Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder and is entitled to the benefits of this Agreement.
SECTION 6.3. Registration: Registration of Transfer and
Exchange.
(a) The Trustee shall cause to be kept in the Corporate Trust
Office (which shall be outside the United Kingdom) a register for Certificates
(the registers maintained in such office and in any other office or agency of
the Trustee in New York, New York being herein sometimes collectively referred
to as the "Certificate Register") in which a transfer agent and registrar (which
may be the Trustee) (the "Certificate Registrar") shall provide for the
registration of the Certificates and the registration of transfers and exchanges
of the Certificates. The Trustee is hereby initially appointed Certificate
Registrar for the purpose of registering the Certificates and transfers and
exchanges of Certificates as herein provided; provided, however, that the
Trustee may appoint one or more co-Certificate Registrars. Upon any resignation
of any Certificate Registrar, the Administrative Party shall promptly appoint a
successor or, in the absence of such appointment, arrange for an Affiliate of
the Administrative Party to assume the duties of Certificate Registrar;
provided, however, that such Certificate Registrar shall remain at all times
outside the United Kingdom.
(b) If a Person other than the Trustee is appointed by the Administrative Party as Certificate Registrar, the Administrative Party will give the Trustee prompt written notice of the appointment of a Certificate Registrar and of the location, and any change in the location, of the Certificate Register, and the Trustee shall have the right to rely upon a certificate executed on behalf of the Certificate Registrar by an Executive Officer thereof as to the names and addresses of the Holders of the Certificates and the principal amounts and numbers of such Certificates.
(c) Every Certificate presented or surrendered for registration of transfer or exchange shall (if so required by Yorkshire Group, the Trustee or the Certificate Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to Yorkshire Group, the Trustee and the Certificate Registrar, duly executed, by the Holder thereof or his attorney duly authorized in writing, with such signature guaranteed by a brokerage firm or financial institution that is a member of a Securities Approved Medallion Programs such as the Securities Transfer Agents Medallion Program (STAMP), the Stock Exchange Medallion Program (SEMP) or the New York Stock Exchange Inc. Medallion Signature Program (MSP).
(d) Upon surrender for registration of transfer of any Certificate at the office or agency of the Trustee and subject to Section 4.5 and Article V, if the requirements of Section 8-401(a) of the Uniform Commercial Code are met to the satisfaction of Yorkshire Group, the Trustee shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of any authorized denominations, of a like aggregate Certificate Principal Balance.
(e) At the option of the Holder, Certificates (other than the Global Securities) may be exchanged for other Certificates of any authorized denomination or denominations of like tenor and aggregate Certificate Principal Balance and bearing the applicable legends set forth in Section 5.2(c) upon surrender of the Certificates to be exchanged at the office or agency of the Trustee maintained for such purpose.
(f) Whenever any Certificates are so surrendered for exchange, the Trust shall execute, authenticate and deliver the Certificates that the Holder making the exchange is entitled to receive.
(g) If at any time the Depository for the Certificates notifies Yorkshire Group that it is unwilling or unable to continue as Depository for the Certificates or if at any time the Depository for the Certificates shall no longer be eligible under Section 6.8(b), the Administrative Party shall appoint a successor Depository (which is neither a UK Tax Resident nor acting out of a United Kingdom branch or agency for the purposes of this transaction) with respect to the Certificates. If a successor Depository for the Certificates is not appointed by the Administrative Party within 120 days after Yorkshire Group receives such notice or becomes aware of such ineligibility, the Trustee will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of Definitive Certificates, will authenticate and deliver Definitive Certificates in an aggregate Certificate Principal Balance equal to the aggregate Certificate Principal Balance of the Global Security or Securities representing Certificates in exchange for such Global Security or Securities.
(h) Upon surrender to the Trustee of a Global Security by the Depository, accompanied by registration instructions, the Trustee shall execute and the Trustee shall authenticate the Definitive Certificates in accordance with the instructions of the Depository. None of the Administrative Party, Yorkshire Group, the Certificate Registrar or the Trustee shall be liable for any delay in delivery of the Company Order and may conclusively rely on, and shall be protected in relying on, the Company Order. Upon the issuance of Definitive Certificates, the Trustee shall recognize the holders of the Definitive Certificates as Holders.
(i) Upon the exchange of a Global Security for Definitive Certificates, such Global Security shall be cancelled by the Trustee. Definitive Certificates issued in exchange for a Global Security pursuant to this Section 6.3 shall be registered in such names and in such authorized denominations as the Depository for such Global Security, pursuant to instructions from its Participants, any indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Certificates to the Persons in whose names such Certificates are so registered.
(j) All Certificates issued upon any registration of transfer or exchange of Certificates shall constitute complete and indefeasible evidence
of ownership in the Trust related to such Certificates and be entitled to the same benefits under this Agreement as the Certificates surrendered upon such registration of transfer or exchange.
(k) No service charge shall be made to a Holder for any registration of transfer or exchange of Certificates, but Yorkshire Group may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Certificates, other than exchanges pursuant to Section 6.3 not involving any transfer.
SECTION 6.4. Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is presented to the Trustee or (ii) Yorkshire Group and the Trustee receive (A) evidence to their satisfaction of the mutilation, destruction, loss or theft of any Certificate and (B) such security or indemnity as they may require to hold each of them and any Paying Agent harmless, and neither Yorkshire Group, the Administrative Party nor the Trustee receives notice that such Certificate has been acquired by a bona fide purchaser, then the Trustee shall execute and the Trustee, upon receipt of a Company Order, shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate a new Certificate of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding.
(b) If after the delivery of a replacement Certificate in respect of a mutilated, destroyed, lost or stolen Certificate, a bona fide purchaser of the original Certificate in lieu of which such replacement Certificate was issued presents for payment such original Certificate, the Trustee shall be entitled to recover such replacement Certificate (or such distribution in respect of that Certificate) from the Person to whom it was delivered or any Person taking such replacement Certificate from such Person to whom such replacement Certificate was delivered or any assignee of such Person, except a bona fide purchaser, and shall be entitled to recover upon any security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Trustee in connection therewith.
(c) Upon the issuance of any new Certificate under this
Section 6.4, Yorkshire Group may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in respect
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
(d) Every new Certificate issued pursuant to this Section 6.4 shall constitute complete and indefeasible evidence of ownership in the Trust, its income and assets whether or not the mutilated, destroyed, lost or stolen Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Certificates duly issued hereunder.
(e) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 6.5. Distribution of Available Funds.
(a) Available Funds to be distributed to the Holder of any Certificate that are payable and are punctually paid or duly provided for on any Distribution Date shall be distributed to the Person in whose name such Certificate (or one or more Predecessor Certificates) is registered at the close of business on the related Record Date notwithstanding the cancellation of such Certificate upon any transfer or exchange subsequent to such related Record Date. The distribution of Available Funds to Certificateholders shall be made at the Corporate Trust Office or, at the option of the Trustee, by check mailed to the address of the Person entitled thereto as such address shall appear in the Certificate Register or by wire transfer to an account designated by the Holder.
(b) Subject to the foregoing provisions of this Section 6.5, each Certificate delivered under this Agreement upon transfer of or in exchange for or in lieu of any other Certificate shall carry the rights to receive distributions of Available Funds that were carried by such other Certificate.
(c) With respect to any computations or calculations to be
made under this Agreement and the Certificates, except as otherwise provided,
(i) all percentages resulting from any calculation of accrued interest will be
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded downward, and (ii) all currency
amounts will be rounded to the nearest one-hundredth of a unit (with .005 of a
unit being rounded downward).
SECTION 6.6. Persons Deemed Owners.
(a) The Administrative Party, Yorkshire Group, the Trustee and any agent of the Administrative Party, Yorkshire Group or the Trustee may treat the Person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions of Available Funds on such Certificate and for all other purposes whatsoever, whether or not such Certificate be overdue, and neither the Administrative Party, Yorkshire Group or the Trustee, nor any agent of the Administrative Party, Yorkshire Group or the Trustee shall be affected by notice to the contrary. All distributions made to any Holder, or upon his order, shall be valid, and, to the extent of the sum or sums paid, effectual to satisfy and discharge the liability for moneys distributable upon such Certificate.
(b) Neither the Administrative Party, Yorkshire Group, the Certificate Registrar, the Trustee nor any of their agents will have any responsibility or liability for any aspect of the records relating to or distributions made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
SECTION 6.7. Cancellation. All Certificates surrendered for payment, redemption, transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. No Certificates shall be authenticated in lieu of or in exchange for any Certificates cancelled as provided in this Section 6.7, except as expressly permitted by this Agreement. All cancelled Certificates may be held
or disposed of by the Trustee in accordance with its standard retention or disposal policy as in effect at the time unless Yorkshire Group shall direct by Company Order that they be returned to it; provided, however, that such Company Order is timely and the Certificates have not been previously disposed of by the Trustee. The Trustee shall certify to Yorkshire Group that surrendered Certificates have been duly cancelled and retained or destroyed, as the case may be.
SECTION 6.8. Global Securities.
(a) The Certificates shall be registered Certificates and will
be represented by one or more Global Securities issued in accordance with this
Section 6.8 and Article V and initially registered in the name of Cede & Co., as
nominee of The Depository Trust Company. The Trustee shall execute and the
Trustee shall authenticate and deliver one or more Global Securities that (i)
shall represent an aggregate initial Certificate Principal Balance equal to the
aggregate initial Certificate Principal Balance of the Certificates, (ii) shall
be delivered by the Trustee to the Depository or pursuant to the Depository's
instruction and (iii) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole for the individual Certificates
represented hereby, this Global Security may not be transferred except as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to a successor nominee or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository."
(b) No Holder of a Certificate will receive a Definitive Certificate representing such Holders interest in such Certificate or Certificates, except as provided in Section 6.3 and Section 6.13. Unless and until definitive, fully registered Certificates (the "Definitive Certificates") have been issued to Holders pursuant to Section 6.3 or Section 6.13:
(i) the provisions of this Section 6.8 shall be in full force and effect;
ii) the Certificate Registrar and the Trustee shall be entitled to deal with the Depository for all purposes of this Agreement (including the distribution of Available Funds with respect to the Certificates and the giving of instructions or directions hereunder) as the sole Holder of the Certificates, and shall have no obligation to the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.8 conflict with any other provisions of this Agreement other than Section 3.5, the provisions of this Section 6.8 shall control;
(iv) the rights of Certificate Owners shall be exercised only through the Depository and shall be limited to those established by law and agreements between such Certificate Owners and the Depository or its Participants; and
(v) whenever this Agreement requires or permits actions to be taken based upon instructions or directions of Holders of Certificates evidencing a specified percentage of the aggregate Voting Rights, the Depository shall be deemed to represent such percentage only to the extent that it has received written instructions to such effect from Certificate Owners or Participants in the Depository's system owning or representing, respectively, such required percentage of the beneficial interests in the Certificates and has delivered such instructions to the Trustee.
(c) The Depository must, at all times while it serves as Depository, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
(d) If any Global Security is to be exchanged for other Certificates or cancelled in whole, it shall be surrendered by or on behalf of the Depository or its nominee to the Trustee, as Certificate Registrar, for exchange or cancellation as provided in this Article VI or, if the Trustee is acting as custodian for the Depository or its nominee (or is party to a similar arrangement) with respect to such Global Security, the principal amount thereof shall be reduced to reflect that either all or none of the Certificates will be held as a Global Security after giving effect to such exchange or transfer, as the case may be, in each case by means of an appropriate adjustment made on the records of the Trustee, whereupon the Trustee shall instruct the Depository or its authorized representative to make a corresponding adjustment to its records (including by crediting or debiting any Participant's account as necessary to reflect any transfer or exchange of a beneficial interest pursuant to Section 5.2(b)). Upon any such surrender or adjustment of a Global Security, the Trustee shall, subject to this Section 6.8 and as otherwise provided in this Article VI, authenticate and deliver any Certificates issuable in exchange for such Global Security to or upon the order of, and registered in such names as may be directed by, the Depository or its authorized representative in writing. Upon the request of the Trustee in connection with the occurrence of any of the events specified in Section 6.3 or 6 13, Yorkshire Group shall promptly make available to the Trustee a reasonable supply of Certificates that are not in the form of Global Securities. The Trustee shall be entitled to rely upon any order, direction or request of the Depository or its authorized representative which is given or made pursuant to this Article VI.
(e) Every Certificate authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Certificate is registered in the name of a Person other than the Depository or a nominee thereof.
(f) Subject to the provisions in the applicable legends required by Section 5.2(c) above, the registered Holder may grant proxies and otherwise authorize any Person, including Participants and Persons who may hold interests in Participants, to take any action that such Holder is entitled to take under this Agreement.
(g) Neither Participants nor any other Persons on whose behalf Participants may act shall have any rights under this Agreement with respect to any Global Security held on their behalf by the Depository or under the Global Security, and the Depository may be treated by the Administrative Party, Yorkshire Group, the Trustee and any agent of the Administrative Party, Yorkshire Group or the Trustee as the absolute owner of such Global Security for all purposes whatsoever.
SECTION 6.9. Notices to Depository. Whenever a notice or other communication to the Certificate Owners represented by one or more Global Securities is required under this Agreement, unless and until Definitive
Certificates shall have been issued to such Certificate Owners pursuant to
Section 6.3, the Trustee shall give all such notices and communications
specified herein to be given to Certificate Owners to the Depository, and shall
have no obligation to the Certificate Owners.
SECTION 6.10. Conditions of Authentication and Delivery. The Administrative Party shall deliver Certificates to the Trustee, and the Trustee shall execute on behalf of the Trust and authenticate and deliver such Certificates, shall purchase the Interest and shall execute and deliver the Call Option, the Currency Swap and other closing documents in connection with the issue of the Certificates, upon receipt of a Company Order.
SECTION 6.11. Appointment of Paying Agent. The Trustee may
appoint one or more paying agents (which shall not be a UK Tax Resident nor act
out of a branch or agency in the United Kingdom for the purposes of this
transaction) (each, a "Paying Agent") with respect to the Certificates. Any such
Paying Agent shall be authorized to make distributions to Certificateholders
from the Certificate Account and shall report the amounts of such distributions
to the Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Account for the purpose of making the distributions
referred to above. The Trustee may revoke such power and remove the Paying Agent
if the Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Trustee and any co-paying agent
(which shall not be a UK Tax Resident nor act out of a branch or agency in the
United Kingdom for the purposes of this transaction) chosen by the
Administrative Party and acceptable to the Trustee. Any Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Trustee
and the Administrative Party. In the event that the Trustee shall no longer be
the Paying Agent, the Trustee shall appoint a successor or additional Paying
Agent (which shall not be a UK Tax Resident nor act out of a branch or agency in
the United Kingdom for the purposes of this transaction). Any such successor or
additional Paying Agent must be approved by the Administrative Party, whose
approval shall not be unreasonably withheld or delayed. The Trustee shall cause
each successor Paying Agent or additional Paying Agent to execute and deliver to
the Trustee an instrument in which such successor or additional Paying Agent
shall agree with the Trustee that it will hold all sums, if any, held by it for
distribution to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be distributed to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal shall also return all funds in its possession to the
Trustee. The provisions of Sections 9.1, 9.2, 9.3 and 9.5 shall apply to the
Trustee also in its role as Paying Agent, for so long as the Trustee shall act
as Paying Agent and, to the extent applicable, to any other Paying Agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Notwithstanding anything contained herein to the contrary, the appointment of a
Paying Agent pursuant to this Section 6.11 shall not release the Trustee from
the duties, obligations, responsibilities or liabilities arising under this
Agreement other than with respect to funds paid to such Paying Agent.
SECTION 6.12. Authentication Agent.
(a) The Trustee may appoint one or more Authenticating Agents (which shall not be a UK Tax Resident nor act out of a branch or agency in the
United Kingdom for the purposes of this transaction) (each, an "Authenticating Agent") with respect to the Certificates which shall be authorized to act on behalf of the Trustee in authenticating such Certificates outside the United Kingdom in connection with the issuance, delivery and registration of transfer or exchange of such Certificates. Whenever reference is made in this Agreement to the authentication of Certificates by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent must be acceptable to the Administrative Party. Notwithstanding anything contained herein to the contrary, the appointment of an Authenticating Agent pursuant to this Section 6.12 shall not release the Trustee from the duties, obligations, responsibilities or liabilities arising under this Agreement.
(b) Any institution succeeding to the corporate agency business of any Authenticating Agent shall continue to be an Authenticating Agent without the execution or filing of any power or any further act on the part of the Trustee or such Authenticating Agent; provided, however that such institution shall not be a UK Tax Resident nor act out of a branch or agency in the United Kingdom for the purposes of this transaction. An Authenticating Agent may at any time resign by giving notice of resignation to the Trustee and to the Administrative Party. The Trustee may at any time terminate the agency of an Authenticating Agent by giving notice of termination to such Authenticating Agent and to the Administrative Party. Upon receiving such a notice of resigna- tion or upon such a termination, or in case at any time an Authenticating Agent shall cease to be acceptable to the Trustee or the Administrative Party, the Trustee promptly may appoint a successor Authenticating Agent. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless acceptable to the Administrative Party and it shall not be a UK Tax Resident nor act out of a branch or agency in the United Kingdom for the purposes of this transaction. The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 6.12. The provisions of Section 9.1, 9.2 and 9.3 shall be applicable to any Authenticating Agent.
(c) Pursuant to an appointment made under this Section 6.12, the Certificates may have endorsed thereon, in lieu of the Trustee's certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Certificates described in the Trust Agreement referred to herein.
by
SECTION 6.13. Remedies. Following the occurrence of an Event of Default, or a payment default by the Swap Counterparty under the Currency Swap or upon a Swap Termination Event, the Trustee shall, within five Business Days of obtaining knowledge of such Event of Default, default or Swap Termination Event, mail a notice of such Event of Default, default or Swap Termination Event to each Certificateholder of record as of the date the Trustee obtained such knowledge. The Trustee shall request instructions from Certificateholders as to what actions to take or cause to be taken or remedies to exercise or cause to be exercised under the Notes or the Currency Swap, including any actions or remedies with respect to, in the case of a payment default by the Swap Counterparty under the Currency Swap, any unpaid Dollar Swap Payment or other US Dollar amount owing by the Swap Counterparty under the Currency Swap and, in the case of a Swap Termination Event (other than as a result of a Conversion Event or an Optional Tax Redemption), any claim against the Swap Counterparty for any Swap Termination Payment and whether or not such Swap Termination Payment shall constitute Available Funds. The Trustee shall take or cause to be taken such actions or exercise or cause to be exercised such remedies as are permitted under the Notes or the Currency Swap and as Certificateholders holding the Required percentage shall direct in writing; provided, however, that the Trustee shall only authorize the issuance of Definitive Certificates upon the affirmative vote of the Required percentage; provided, further, that Definitive Certificates representing 100% of the outstanding principal balance of the Certificates shall be issued if any Definitive Certificates are issued; and provided, further, that the Trustee may not sell, liquidate or otherwise dispose of the interest other than in connection with a Trust Termination Event; and provided, further, the Trustee shall be under no obligation to take any action at the request, order or direction of Certificateholders unless such Certificateholders have offered the Trustee reasonable security or indemnity. The Trustee shall have no liability for any failure to act resulting from the Certificateholders' late return of, or failure to return, directions requested by the Trustee from the Certificateholders.
ARTICLE VII
Yorkshire Group and the Administrative Party
SECTION 7.1. Liability of Yorkshire Group. Yorkshire Group shall be liable in accordance herewith only to the extent of the obligations specifically imposed by this Agreement.
SECTION 7.2. Limitation on Liability of Yorkshire Group. Neither Yorkshire Group nor any of the directors, officers, employees or agents of Yorkshire Group shall be under any liability to the Trust or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect Yorkshire Group or any such person against any breach of warranties, representations or covenants made herein, or against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations and duties hereunder.
Yorkshire Group shall not be under any obligation to appear in, prosecute or defend any legal action unless such action is related to its respective duties under this Agreement and, in its opinion, does not involve it in any expense or liability; provided, however, that Yorkshire Group may in its discretion undertake any such action which it may deem necessary or desirable with respect to this Agreement and the rights and duties of the parties hereto and the interests of the Certificateholders hereunder.
SECTION 7.3. Ownership of Administration Certificate. The Administrative Party has acquired, and will continue to retain, except as described below, ownership of the Administration Certificate. To the fullest extent permitted by law, any attempted transfer of the Administration Certificate, except for transfers by operation of law or to a successor Administrative Party at the request of Yorkshire Group pursuant to Section 7.4, shall be void. The Administration Certificate shall contain a legend. stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT REFERRED TO HEREIN".
SECTION 7.4. Transfer of Administration Certificate. Upon a transfer of the Administration Certificate in accordance with Section 7.3:
(a) The Administrative Party surrendering the Administration Certificate (the "Surrendering Party") (or its duly authorized attorney) shall surrender such certificate at the Corporate Trust Office along with a written instrument of surrender, in form satisfactory to the Trustee and the Certificate Registrar, duly executed by the Surrendering Party. Thereupon, the Surrendering Party shall cease to be the Administrative Party. The surrendered Administration Certificate shall be canceled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice; and
(b) Immediately upon such surrender, (i) the Trustee, on behalf of the Trust, shall execute and deliver in the name of the successor Administrative Party a new Administration Certificate dated the date of delivery
and (ii) the successor Administrative Party shall evidence its acceptance by executing the new Administration Certificate and taking possession thereof. Thereupon, such entity shall be deemed to be the Administrative Party.
Subject to Section 9.5, no service charge shall be made for any registration of transfer or surrender of the Administration Certificate.
SECTION 7.5. No Economic Interest in the Trust.
(a) The Administrative Party, by virtue of its possession of the Administration Certificate, has a beneficial interest in the Trust; provided, however, that the Administrative Party, solely by virtue of its possession of the Administration Certificate, shall not be a trustee of the Trust nor shall it have an undivided beneficial interest in the property of the Trust nor shall it be entitled to any financial or monetary Interest in the Trust, including, but not limited to, any distribution, any amounts paid on liquidation or termination of the Trust, or any entitlement to the Notes or payments thereon.
(b) Possession of the Administration Certificate does not:
(i) entitle the Administrative Party to income or assets of the Trust;
(ii) impose upon the Administrative Party any obligation as trustee with respect to the Trust or
(iii) impose upon the Administrative Party any obligation to act as a fiduciary (to the fullest extent of the law) with respect to the Trust or the Certificates.
SECTION 7.6. Certain Duties and Responsibilities. The rights, duties and responsibilities of the Administrative Party shall be only as provided by the Administration Certificate and this Trust Agreement. Notwithstanding the foregoing, no provision of the Administration Certificate or this Trust Agreement shall require the Administrative Party to expend any of its own funds in the performance of its duties as Administrative Party. Whether or not therein expressly so provided, every provision of the Administration Certificate and this Trust Agreement relating to the conduct of the Administrative Party shall be subject to the provisions of this Section.
ARTICLE VIII
Concerning the Currency Swap, the Call Option and the Early Redemption Right
SECTION 8.1. Currency Swap and Call Option.
(a) Concurrently with the issue of the Certificates, the Trustee shall execute the Currency Swap and the Call Option. The Trustee shall perform the Trust's obligations under the Currency Swap and the Call Option in accordance with their respective terms.
(b) The Trustee shall be permitted, without the consent of Certificateholders, to enter into any amendment to the Currency Swap or the Call Option, in accordance with the terms thereof, to cure any ambiguity in, or to correct or supplement any provision of, the Currency Swap or the Call Option; provided that (a) the Trustee has received an Opinion of Counsel to the effect that such amendment (i) will not materially adversely affect the interests of the Certificateholders and (ii) will not alter the status of the Trust as a grantor trust for US federal income tax purposes or make the Trust resident in the United Kingdom for United Kingdom tax purposes; provided, however, that counsel giving such opinion may conclusively rely upon an Officer's Certificate of Yorkshire Group with respect to the absence of any materially adverse effects of a non-legal nature. In the event the Trustee receives any other request from the Swap Counterparty or the Callholder, as the case may be, for approval of any consent relating to or waiver or other modification of the Currency Swap or the Call Option, the Trustee shall promptly deliver notice of such proposed consent, waiver or modification to each Certificateholder and shall request from the Certificateholders instructions as to whether or not to give or execute such consent, waiver or modification. Upon the direction of Holders of Certificates evidencing not less than the Required Percentage-Direction of Trustee of the aggregate Voting Rights of the Certificates, the Trustee shall enter into such consent, waiver or other modification of the Currency Swap or the Call Option; provided that the Trustee shall have received an Opinion of Counsel to the effect that such consent, waiver or other modification will not alter the status of the Trust as a grantor trust for US federal income tax purposes or make the Trust a UK Tax Resident; and provided further, that the Trustee shall not enter into any such consent, waiver or other modification if the Trustee determines (based upon advice of counsel upon which advice the Trustee may conclusively rely) that such consent, waiver or other modification would, in the case of the Currency Swap, alter the date on which any Dollar Swap Payments or other Dollar payments are to be made thereunder or alter the amount thereof and, in the case of the Call Option, alter the date on which the Call Option is exercisable or the amount payable upon exercise of the Call Option.
(c) Notwithstanding Section 8.1(b), the Trustee shall not enter into any amendment to, or give or execute any consent relating to or waiver or other modification of, the Currency Swap or the Call Option unless the Rating Agency Condition is satisfied.
SECTION 8.2 Obligations to the Callholder.
(a) Upon the exercise of the Call Option in accordance with its terms, the Trustee shall deliver or cause to be delivered the Interest upon the written direction of the Callholder, by 10:00 a.m. (New York City time) on the Settlement Date, provided that the Trustee shall have received notice of the exercise thereof from the Callholder on or prior to the Call Exercise Date in accordance with the terms of the Call Option and shall have received from the Callholder an amount, in immediately available funds in a form acceptable to the Trustee, equal to the Call Price for the Interest, by 2:00 p.m. (London time) on the Business Day prior to the Settlement Date.
(b) Upon receipt of the Call Price pursuant to Section 8.2(a), the Trustee shall include any such amount in Available Funds with respect to the Final Distribution (other than any interest received on the Call Price from the Business Day prior to the Settlement Date to the Settlement Date, which interest shall be payable to the Callholder).
SECTION 8.3. Early Redemption Right.
(a) If the Trustee fails to receive notice from the Callholder in accordance with the Call Option on or prior to 4:00 p.m. (New York City time) on the Call Exercise Date that it intends to exercise the Call Option, the Trustee, on behalf of the Certificateholders, shall, immediately thereafter, instruct the Book-Entry Depositary to give irrevocable written notice to Yorkshire Finance (the "Early Redemption Notice") that the Book-Entry Depositary will exercise the Early Redemption Right on the Settlement Date in accordance with the terms of the Notes and the Indenture.
(b) Subject to prior compliance with Section 8.3(a), the Early Redemption Right shall be exercised by the Book-Entry Depositary at the direction of the Trustee by delivery of the Notes to Yorkshire Finance at the time and in the manner specified in the Notes, together with such other documents as may be required by, and by satisfying such other applicable terms of, the Notes.
(c) Notwithstanding any other term of this Agreement, if the Callholder exercises the Call Option in accordance with the terms thereof but fails to make payment in full thereon by 2:00 p.m. (London time) on the Business Day preceding the Settlement Date, the Trustee, on behalf of the Trust, shall, immediately upon notice of or the occurrence of such default by the Callholder, instruct the Book-Entry Depositary to give irrevocable written notice to Yorkshire Finance that the Book-Entry Depositary intends to exercise the Early Redemption Right on the Settlement Date in accordance with the terms of the Notes. In such event, the Early Redemption Right shall then be exercised by the Book-Entry Depositary at the direction of the Trustee by surrender of the Notes to Yorkshire Finance at the time and in the manner specified in the Notes, together with such other documents as may be required by, and by satisfying any other applicable terms of, the Notes.
ARTICLE IX
Concerning the Trustee
SECTION 9.1. Duties of Trustee: Notice of Defaults.
(a) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all such Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, the Currency Swap and the Call Option. During the period an Event of Default shall have occurred and be continuing, the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. Any permissive right of the Trustee enumerated in this Agreement shall not be construed as a duty. In the event of any payment default by the Swap Counterparty under the Currency Swap, the Trustee shall provide a notice to the Swap Counterparty of such default in the form of Exhibit D, and the Currency Swap shall terminate on the third Business Day following such default unless it is remedied before such date. In the event of any payment default by the Callholder under the Call Option, the Trustee shall provide a
notice to the Callholder of such default in the form of Exhibit E, and the Call Option shall immediately terminate.
(b) The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them in good faith to determine whether they conform on their face to the requirements of this Agreement. If any such instrument is found not to conform to the requirements of this Agreement, the Trustee shall take such action as it deems appropriate to have the instrument corrected, and if the instrument is not corrected to the Trustee's satisfaction, the Trustee will provide notice thereof to Yorkshire Group and Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, however, that:
(i) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of Holders of the Required Percentage relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement;
(ii) except for actions expressly authorized by this Agreement, the Trustee shall take no actions reasonably likely to impair the interests of the Trust in any Trust Asset now existing or hereafter acquired or to impair the value of any Trust Asset now existing or hereafter acquired;
(iii) except as expressly provided in this Agreement, the Trustee shall have no power to vary the corpus of the Trust including by (A) accepting any substitute obligation or asset for a Trust Asset initially assigned to the Trustee under Section 2.1, (B) adding any other investment, obligation or security to the Trust or (C) withdrawing from the Trust any Trust Assets; and
(iv) in the event that the Paying Agent or the Certificate Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or Certificate Registrar, as the case may be, under this Agreement, the Trustee shall be obligated promptly upon its knowledge thereof to perform such obligation, duty or agreement in the manner so required.
SECTION 9.2. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.1:
(i) the Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel of its selection and any advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; provided, however, that nothing contained herein shall relieve the Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs;
(iv) the Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(v) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, approval, bond or other paper or document believed by it to be genuine, unless requested in writing to do so by Holders of the Required Percentage; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by -the terms of this Agreement, the Trustee may require reasonable indemnity against such expense or liability as a condition to taking any such action; and
(vi) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian.
(b) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by it without the possession of any of the Certificates, or the production thereof at the trial or other Proceeding relating thereto, and any such Proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 9.3. Trustee Not Liable for Recitals in Certificates or Trust Assets. The Trustee assumes no responsibility for the correctness of the recitals contained herein and in the Certificates or in any document issued in connection with the sale of the Certificates (other than the Trustee's signature and authentication on the Certificates). Except as set forth in
Section 9.11, the Trustee makes no representations or warranties as to the validity or sufficiency of this Agreement or of the Certificates (other Trustee's signature and authentication on the Certificates) or of any Trust Asset or related document
SECTION 9.4. Trustee May Own Certificates. The Trustee in its individual capacity or any other capacity may become the owner or pledgee of Certificates arid may transact business with the other parties hereto with the same rights it would have if it were not Trustee.
SECTION 9.5. Trustee's Fees and Expenses; Indemnification.
(a) The Trustee shall be paid by Yorkshire Group as compensation for its services hereunder such fees as have been separately agreed upon from time to time by Yorkshire Group and the Trustee, and the Trustee shall be entitled to be reimbursed by Yorkshire Group for its reasonable expenses hereunder, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Trustee may reasonably employ in connection with the exercise and performance of its rights and its duties hereunder and any investigation in connection therewith.
(b) Yorkshire Group shall indemnify and hold harmless the Trustee, Paying Agent and the Certificate Registrar against any loss, liability or expense incurred in connection with any action relating to or arising out of this Agreement, the Certificates, the Call Option, the Currency Swap, the Early Redemption Right, the Purchase Agreement, as applicable, or the acceptance of the trust created hereby or the performance of the duties of the Trustee, the Paying Agent or the Certificate Registrar hereunder except to the extent that such loss, liability or expense (i) is due to willful misfeasance, bad faith or negligence of the Trustee, the Paying Agent or the Certificate Registrar or (ii) relates to the payment obligations under the Certificates, the Currency Swap or the Call Option.
(c) The provisions of this Section 9.5 shall survive the resignation or removal of the Trustee, and the termination of this Agreement and the Trust.
SECTION 9.6. Eligibility Requirements for Trustee. The Trustee hereunder shall at all times be a corporation or an association which is not an Affiliate of Yorkshire Group (but may have normal banking relationships with Yorkshire Group and its Affiliates) organized and doing business under the laws of any State or the United States, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by US federal or State authority. If such corporation or association publishes reports of conditions at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 9.6 the combined capital and surplus of such corporation or association shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. Such corporation or association must be rated in one of the four highest rating categories by the Rating Agencies and must not be a UK Tax Resident nor acting for the purposes of this transaction out of a branch, office or agency in the United Kingdom.
SECTION 9.7. Resignation or Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from any trust hereby created by giving written notice thereof to Yorkshire Group, the Rating Agencies and to all Certificateholders. Upon receiving notice of resignation, the Administrative Party shall promptly appoint a successor trustee by written instrument, in duplicate, which instrument shall be delivered to the resigning Trustee and to the successor trustee. A copy of such instrument shall be delivered to such Certificateholders by the Administrative Party. If no such successor trustee shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance with the provisions of Section 9.6 and shall fail to resign after written request therefor by the Administrative Party, or if at any time the Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Administrative Party may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, which instrument shall be delivered to the Trustee so removed and to the successor trustee. A copy of such instrument shall be delivered to the Certificateholders, if any, by the Administrative Party.
(c) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 9.7 shall not become effective until acceptance of appointment by the successor trustee as provided in Section 9.8.
SECTION 9.8. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 9.7
shall execute, acknowledge and deliver to the Administrative Party and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Trust Assets, documents and statements held by it hereunder, and
Yorkshire Group and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations. No successor trustee shall accept
appointment as provided in this Section 9.8 unless at the time of such
acceptance such successor trustee shall be eligible under the provisions of
Section 9.6.
(b) Upon acceptance of appointment by a successor trustee as provided in this Section 9.8, the Administrative Party shall transmit notice of the succession of such trustee hereunder to all Holders of Certificates and to the Rating Agencies in the manner provided in Section 11.6.
SECTION 9.9. Merger or Consolidation of Trustee. Any corporation or association into which the Trustee may be merged or converted or with which it may be consolidated or any corporation or association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or association succeeding to the business of the Trustee, or any corporation or association purchasing all, or substantially all, of the corporate trust business of the Trustee shall be the successor of the Trustee hereunder, provided such corporation or association shall be eligible under the provisions of Section 9.6, without the execution or filing of any instrument or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 9.10. Appointment of Office or Agency. The Trustee shall appoint an office or agency in The City of New York where the Certificates may be surrendered for registration of transfer or exchange, and presented for the Final Distribution with respect thereto, and where notices and demands to or upon the Trustee in respect of the Certificates and this Agreement may be served. The Trustee initially appoints its Corporate Trust Office for such purpose.
SECTION 9.11. Representations and Warranties of Trustee. The Trustee represents and warrants that:
(i) the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or association;
(ii) neither the execution, the delivery or performance by the Trustee of this Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will violate its charter documents or by-laws;
(iii) the Trustee has full power, authority and right to execute, deliver and perform its duties and obligations as set forth herein, has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and has satisfied all of the eligibility requirements set forth in Section 9.6;
(iv) this Agreement has been duly executed and delivered by the Trustee and constitutes the legal, valid and binding obligation of the Trustee, enforceable in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(v) the execution, delivery and performance by the Trustee of this Agreement shall not require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action in respect of, any governmental authority or agency regulating the banking and corporate trust activities of the Trustee.
SECTION 9.12. Limitation of Powers and Duties.
(a) The Trustee shall administer the Trust and the Trust Assets solely as specified herein.
(b) The Trust is constituted solely for the purpose of acquiring and holding the Trust Assets. The Trustee is not authorized to acquire any other investments or engage in any activities not authorized herein, and, in particular, the Trustee is not authorized (i) to sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the Notes, once acquired, or interests therein, including to Certificateholders (except pursuant to the Call Option, the Early Redemption Right and Section 4.2) or (ii) to do anything that would alter the status of the Trust as a grantor trust for US federal income tax purposes or which would make the Trust or the Trustee a UK Tax Resident or which would lead to either the Trust or the Trustee acting out of a United Kingdom branch or agency for the purposes of this transaction.
(c) The Trustee, as a holder of the Interest, has the right to direct the Depository as holder of the Book-Entry Interests to vote and give consents and waivers in respect of the Notes and enforce such other rights of a holder of the Notes except as otherwise limited by this Agreement. In the event that the Trustee receives a request from the Depository with respect to the Interest, for the Trustee's consent to any amendment, modification or waiver of the Notes or the Interest, or any document hereunder, or relating thereto, or receives any other solicitation for any action with respect to the Notes or the Interest, the Trustee shall within five Business Days mail a notice of such proposed amendment, modification, waiver or solicitation to each Certificateholder as of the date of such request. The Trustee shall request instructions from the Certificateholders as to what action to take in response to such request. Except as otherwise provided herein, the Trustee shall consent or vote, or refrain from consenting or voting, in the same proportion (based on the Certificate Principal Balances) as the Certificates of the Trust were actually voted or not voted by the Holders thereof as of the date determined by the Trustee prior to the date such vote or consent is required; provided, however, that, notwithstanding anything to the contrary in this Agreement, the Trustee shall at no time vote in favor of or consent to any matter (i) unless such vote or consent would not, based on an Opinion of Counsel, alter the status of the Trust as a grantor trust for US federal income tax purposes or make the Trust or the Trustee a UK Tax Resident or lead to the Trust or the Trustee acting out of a United Kingdom branch or agency for purposes of this transaction, (ii) which would alter the amount of any payment on the Notes, other than in connection with a Trust Termination Event or (iii) which would result in the exchange or substitution of any Notes pursuant to a plan for the refunding or refinancing of such Notes, except during the continuation of an Event of Default, or which would otherwise result in a sale or exchange of Certificates for US federal income tax purposes and, in each case, other than in connection with a Trust Termination Event. The Trustee shall have no liability for any failure to act resulting from the Certificateholders' late return of, or failure to return, directions requested by the Trustee from the Certificateholders.
(d) Notwithstanding any provision of this Agreement to the contrary, for purposes of any security or indemnity against the costs, expenses and liabilities the Trustee may incur by reason of any action undertaken at the direction of the Certificateholders, which the Trustee may require from the Certificateholders prior to taking any such action, an unsecured indemnity
agreement of a Certificateholder or any of its Affiliates, if acceptable to the Trustee, shall be deemed sufficient to satisfy such security or indemnity requirement.
ARTICLE X
Termination
SECTION 10.1. Termination.
(a) Upon presentation and surrender of the Certificates by the Certificateholders on the Final Distribution Date, the Trustee shall distribute to each Holder presenting and surrendering its Certificates the amounts distributable to such Holder in accordance with Sections 4.1 and 4.2 in respect of the Certificates so presented and surrendered. Any funds not distributed on the Final Distribution Date shall be set aside and held in trust for the benefit of Certificateholders not presenting and surrendering their Certificates in the aforesaid manner, and shall be disposed of in accordance with Section 4.2(d).
(b) The Trust and the respective obligations and responsibilities under this Agreement of the Administrative Party and Yorkshire Group and, except as otherwise provided herein, the Trustee shall terminate upon the completion of the Final Distribution; provided, however, that in no event shall the trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late ambassador of the United States to the Court of St. James, living on the date hereof.
ARTICLE XI
Miscellaneous Provisions
SECTION 11.1. Amendment.
(a) This Agreement may be amended or modified from time to
time by the Administrative Party and the Trustee without notice to or the
consent of any of the Certificateholders for any of the following purposes: (i)
to cure any ambiguity or to correct or supplement any provision herein which may
be defective or inconsistent with any other provision herein or in the Currency
Swap or in the Call Option; (ii) to add any security interest for the benefit of
any Certificateholders; (iii) to add to the covenants, restrictions or
obligations of Yorkshire Group, the Administrative Party or the Trustee for the
benefit of the Certificateholders; (iv) to add, change or eliminate any other
provisions with respect to matters or questions arising under this Agreement, so
long as (x) any such amendment described in clauses (i) through (iv) above will
not, as evidenced by an Opinion of Counsel, affect the status of the Trust as a
"grantor trust" or result in a sale or exchange of any Certificate for US
federal income tax purposes or make the Trust or the Trustee a UK Tax Resident
or lead to the Trust or the Trustee acting out of a United Kingdom branch or
agency for the purposes of this transaction and (y) the Rating Agency Condition
has been satisfied; (v) to comply with any requirements imposed by the Code; or
(vi) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee or to add or change any of the provisions of this Agreement as shall be necessary to provide for or facilitate the administration of the trust hereunder.
(b) Without limiting the generality of the foregoing, this Agreement may also be modified or amended from time to time by Yorkshire Group, the Administrative Party and the Trustee with the consent of the Holders of Certificates representing the Required Percentage-Amendment for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders of Certificates; provided, however, that no such modification or amendment shall, without the consent of each affected Certificateholder, (i) reduce in any manner the amount of payments received on the Trust Assets or otherwise adversely affect in any material respect the interests of the Certificateholder or (ii) reduce the percentage of aggregate Voting Rights required to modify or amend this Agreement and provided, further that Yorkshire Group shall furnish to the Trustee an Opinion of Counsel stating that, in the opinion of such counsel, any such modification or amendment would not alter the status of the Trust as a "grantor trust" for US federal income tax purposes or make the Trust or the Trustee a UK Tax Resident or lead to the Trust or the Trustee acting out of a United Kingdom branch or agency for the purposes of this transaction.
(c) In addition to and notwithstanding anything to the contrary in this Agreement, the Trustee shall not enter into any modification or amendment of this Agreement that would (i) adversely affect in any material respect the interests of the Callholder in the Interest without the consent of the Callholder or (ii) alter the date on which the Call Option is exercisable or the amount payable as a result of the exercise of the Call Option without the consent of the Callholder; provided, however, that the Trustee shall not enter into any modification or amendment of this Agreement unless such modification or amendment would not, based on an Opinion of Counsel, alter the status of the Trust as a "grantor trust" or result in a sale or exchange of any Certificates for US federal income tax purposes or make the Trust or the Trustee a UK Tax Resident or lead to the Trust or the Trustee acting out of a United Kingdom branch or agency for the purposes of this transaction.
(d) Promptly after the execution of any such amendment or modification, the Trustee shall furnish a copy of such amendment or modification without charge to each Certificateholder and Yorkshire Group shall furnish a copy of such amendment or modification to the Rating Agencies. It shall not be necessary to obtain the consent of Certificateholders under this Section 11.1 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Certificateholders shall be subject to such reasonable regulations as the Trustee may prescribe.
SECTION 11.2. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument.
SECTION 11.3. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder's legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as expressly provided for herein) or in any manner otherwise control the operation and management of the Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement or any Certificate, unless such Holder previously shall have given to the Trustee a written notice of breach and of the continuance thereof and unless also the Holders of Certificates evidencing not less than the Required Percentage-Remedies shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 15 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding. It is understood and agreed that the Trustee shall not be obligated to make any investigation of matters arising under this Agreement, the Call Option or the Currency Swap or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any Certificateholders unless such Certificateholders have offered to the Trustee the reasonable indemnity referred to above. It is further understood and agreed, and expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatever by virtue of any provision of this Agreement to affect, disturb or prejudice the rights of the Holders of any other of the Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Agreement, except in the manner herein provided and for the equal, ratable and common benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section 11.3, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
SECTION 11.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely therein without reference to such State's principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
SECTION 11.5. Jurisdiction.
(a) Yorkshire Group agrees that any legal suit, action or proceeding against Yorkshire Group brought by the Trustee arising out of or based upon this Agreement may be instituted in any State or US federal court in the Borough of Manhattan, The City of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding and, until the satisfaction and discharge of this Agreement hereof, irrevocably submits to the nonexclusive jurisdiction of such courts in any suit, action or proceeding.
(b) Yorkshire Group has appointed CT Corporation System at 111 Eighth Avenue, New York, New York 10011, as its authorized agent (the "Authorized Agent") upon whom process may be served in any legal suit, action or proceeding arising out of or based upon this Agreement which may be instituted in the Supreme Court of New York, New York County or the United States District Court for the Southern District of New York by the Trustee, and expressly accepts the nonexclusive jurisdiction of any such court in respect of any such action. Such appointment shall be irrevocable. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon Yorkshire Group. Notwithstanding the foregoing, any action based on this Agreement may be instituted by the Trustee in any competent court in England.
(c) To the extent that Yorkshire Group may in any jurisdiction claim for itself or its assets immunity (to the extent such immunity may now or hereafter exist, whether on the grounds of sovereign immunity or otherwise) from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process (whether through service or notice or otherwise), and to the extent that in any such jurisdiction there may be attributed to itself or its assets such immunity (whether or not claimed), Yorkshire Group irrevocably agrees with respect to any matter arising under this Agreement, not to claim, and irrevocably waives, such immunity to the full extent permitted by the laws of such jurisdiction.
SECTION 11.6. Notices.
(a) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when received if personally
delivered or mailed by first class mail, postage prepaid or by express delivery
service or by certified mail, return receipt requested or delivered by facsimile
foll6wed by delivery by mail or delivered in any other manner specified herein,
(i) in the case of Yorkshire Group, to Wetherby Road, Scarcroft, Leeds, LS 14
3H5, United Kingdom; Attention: Roger Dickinson, facsimile number:
011-44-113-289-5549; (ii) in the case of the Administrative Party, to YPG
Holdings c/o AEP Resources, Inc., 1 Riverside Plaza, Columbus, Ohio 43215;
Attention: Corporate Finance Director, facsimile number: 614-223-2807; and (iii)
in the case of the Trustee, to 101 Barclay Street, New York, New York, 10286,
Attention: Ming J. Shiang, facsimile number: 212-815-5595 or such other address
as may hereafter be furnished to Yorkshire Group in writing by the Trustee.
(b) For purposes of delivering notices to the Rating Agencies under Section 11.8 or otherwise, such notices shall be mailed or delivered as provided in Section 11.8 to: Standard & Poor's, 26 Broadway (15th Floor), New York, New York 10004; DCR, 17 State Street (12th Floor), New York, New York 10004; and Moody's Investors Service, Inc., 99 Church Street, New York, New York 10007; or such other address as the Rating Agencies may designate in writing to the parties hereto.
(c) Notwithstanding any provision of this Agreement to the contrary, the Trustee shall deliver all notices or reports required to be delivered to or by the Trustee or Yorkshire Group to the Certificateholders without charge to such Certificateholders.
(d) Any notice required to be provided to a Holder shall be given by first class mail, postage prepaid, at the last address of such Holder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given when mailed, whether or not the Certificateholder receives such notice.
SECTION 11.7. Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed enforceable to the extent permitted, and if not so permitted, shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.8. Notice to Rating Agencies. The Trustee shall use its best efforts promptly to provide notice to the Rating Agencies with respect to each of the following of which it has actual knowledge:
(i) any modification or amendment to this Agreement;
(ii) the resignation or termination of the Trustee;
(iii) the final payment to Holders of the Certificates; and
(iv) any change in the location of the Certificate Account.
In addition, the Trustee shall promptly furnish to each of the Rating Agencies copies of each report to Certificateholders described in Section 4.3 or otherwise. Any such notice pursuant to this Section 11.8 shall be in writing and shall be deemed to have been duly given if personally delivered or mailed by first class mail, postage prepaid, or by express delivery service to each of the Rating Agencies at the address specified in Section 11.6.
SECTION 11.9. Non-petition Covenant. Notwithstanding any prior termination of this Agreement, each of the Trustee, any Authenticating Agent, any Paying Agent, Yorkshire Group and the Administrative Party agrees that it shall not, until the date which is one year and one day after the Final Distribution Date acquiesce, petition or otherwise invoke or cause the Trust to invoke the process of the United States of America, any State or other political subdivision thereof or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government for the purpose of commencing or sustaining a case by or against the Trust under a Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust or all or any part of the property or assets of the Trust or ordering the winding up or liquidation of the affairs of the Trust.
SECTION 11.10. Article and Section References. All article and section references used in this Agreement, unless otherwise provided, are to articles and sections in this Agreement.
SECTION 11.11. Compliance Certificates and Opinions. etc.
(a) Upon any application or request by the Administrative Party to the Trustee to take any action under any provision of this Agreement, the Administrative Party shall furnish to the Trustee: (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with, and (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgement of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
IN WITNESS WHEREOF, Yorkshire Group, the Administrative Party and the Trustee have caused their names to be signed hereto by their respective officers thereunto duly authorized, in each case as of the day and year first above written.
YORKSHIRE POWER GROUP LIMITED
By: /s/ A. A. Pena
-----------------
Name: A. A. Pena
Title: Chief Financial Officer
|
YPG HOLDINGS LLC,
as Administrative Party
By: /s/ A. A. Pena
---------------------
Name: A. A. Pena
Title: Chairman
|
THE BANK OF NEW YORK,
as Trustee
By:________________________________
Name:
Title:
Exhibit A
NUMBER $__________
R-_______ CUSIP NO. ___________
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
|
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OF THE UNITED STATES. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OF
THE UNITED STATES. THIS SECURITY MAY NOT BE PURCHASED, ACQUIRED OR HELD BY, OR
OTHERWISE SOLD OR TRANSFERRED TO, ANY PERSON WHO IS RESIDENT OR ORDINARILY
RESIDENT IN THE UNITED KINGDOM FOR UNITED KINGDOM TAX PURPOSES (A "UK
TAX-RESIDENT"). ANY PURPORTED TRANSFER TO A UK TAX-RESIDENT SHALL BE NULL AND
VOID AND OF NO EFFECT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH YORKSHIRE POWER PASS-THROUGH ASSET TRUST 2000-1 (THE "TRUST")
OR ANY AFFILIATE OF THE TRUST WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THE SECURITY) OR THE EXPIRATION OF SUCH SHORTER PERIOD AS MAY BE PRESCRIBED
BY RULE 144(k), OR ANY SUCCESSOR PROVISION THEREOF, UNDER THE SECURITIES ACT
(THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE TRUST, (B) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
SUBJECT TO THE RIGHT OF THE TRUST, YORKSHIRE POWER FINANCE 2 LIMITED, YORKSHIRE
POWER GROUP LIMITED AND THE TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(i) PURSUANT TO CLAUSE (D) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND
(ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE AS TO
COMPLIANCE WITH CERTAIN CONDITIONS TO TRANSFER IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE OR SUCH EARLIER TIME AS DETERMINED BY THE TRUST IN ACCORDANCE WITH APPLICABLE LAW.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST, ITS INCOME AND ASSETS AND DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY YORKSHIRE POWER FINANCE 2 LIMITED, YORKSHIRE POWER GROUP LIMITED, THE ADMINISTRATIVE PARTY OR THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE TRUST ASSETS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR ANY PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
YORKSHIRE POWER PASS-THROUGH ASSET TRUST 2000-1
___% PASS-THROUGH ASSET TRUST SECURITIES DUE
FEBRUARY__, 2005
evidencing a fractional undivided beneficial ownership interest in the Trust, as defined below, the property of which consists principally of 100% of the beneficial interests (the "interest") in the certificateless book-entry interests (the "Book-Entry Interests") issued by The Bank of New York, as book-entry depositary (the "Book-Entry Depositary"), representing (pound) ______ principal amount of Reset Senior Notes Due February __, 2020 (collectively, the "Notes") of Yorkshire Power Finance 2 Limited, a private company with limited liability incorporated under the laws of the Cayman Islands ("Yorkshire Finance"). The Notes are fully and unconditionally guaranteed (the "Guarantee") by Yorkshire Power Group Limited ("Yorkshire Group"). The Interest has been purchased by the Trust with the proceeds of the sale of the Certificates and the Call Option (each as defined herein).
THIS CERTIFIES THAT ____________ is the registered owner of a nonassessable, fully-paid, fractional undivided interest in Yorkshire Power Pass-Through Asset Trust 2000-1 (including its income and assets) formed by Yorkshire Group equal to a Certificate Principal Balance of $_____, as such amount may be adjusted on the records of the Holder and the Trustee. Under the
Trust Agreement, there will be distributed on the ______ day of each February and August, or if such day is not a Business Day, the next succeeding Business Day, commencing August __, 2000 through and including the Settlement Date (each a "Distribution Date"), to the extent of Available Funds (as defined herein), an amount equal to the US Dollar distribution which will be equal to the amount then payable by _________ (the "Swap Counterparty") to the Trustee under the Currency Swap Agreement, dated February __, 2000, between the Trustee and the Swap Counterparty (the "Currency Swap") and any other amounts remaining in the Certificate Account on such Distribution Date. On the Final Distribution Date, there will be distributed, to the extent of Available Funds, all distributions received from or in respect of the Trust Assets.
The Trust was created pursuant to a Trust Agreement dated as of February 1, 2000 (the "Trust Agreement"), among Yorkshire Group, the Administrative Party and The Bank of New York, a New York corporation, not in its individual capacity but solely as Trustee (the "Trustee"). This Certificate does not purport to summarize the Trust Agreement and reference is hereby made to the Trust Agreement for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Trustee with respect hereto. This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the Holder of this Certificate by virtue of the acceptance hereof assents and by which such Holder is bound. A copy of the Trust Agreement may be obtained from the Trustee by written request sent to the Corporate Trust Office or from Yorkshire Group by written request sent to Yorkshire Group. Capitalized terms used but not defined herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as " % Pass-Through Asset Trust Securities Due February __, 2005" (herein called the "Certificates"). Concurrently with the issuance of the Certificates, the Trustee will issue an option (the "Call Option") that represents the right to purchase the Interest in whole but not in part on February __, 2005 at the call price specified in the Call Option. If the holder of the Call Option does not give irrevocable prior written notice of its intent to exercise the Call Option or falls to fulfill its payment obligations thereunder in accordance with the terms of the Call Option, the Trustee shall direct The Bank of New York, as Book-Entry Depositary to exercise the Early Redemption Right (as defined in the Trust Agreement) and Yorkshire Finance shall he obligated to redeem the Notes at a price equal to the unpaid principal amount thereof on February __, 2005. The property of the Trust consists of the Interest, the aggregate amount deposited in the Certificate Account since the last Distribution Date or, in the case of the first Distribution Date, since the date of the initial issuance of the Certificates, and (a) for so long as the Notes are denominated in Pounds Sterling and no Swap Termination Event has occurred, any Dollar Swap Payment or other US Dollar amount paid by the Swap Counterparty to the Trustee under the Currency Swap, (b) if a Swap Termination Event (other than as a result of a Conversion Event or an Optional Tax Redemption) has occurred, the semi-annual interest payments on the Notes and payments on or in respect of the principal of the Notes made by Yorkshire Finance thereunder or, if applicable, Yorkshire Group under the Guarantee and received by the Trustee in respect of the Interest or, if applicable, any Swap Termination Payment (subject to Section 6.13 of the Trust Agreement) or Unpaid Amounts, (c) if a Conversion Event has occurred, the semi-annual interest payments on the Notes and payments on or in respect of the principal of the Notes made by Yorkshire Finance thereunder or, if applicable, Yorkshire Group under the Guarantee and received by the Trustee in respect of the Interest or,
if applicable, any Unpaid Amounts, (d) all Option Proceeds and (e) all Liquidation Proceeds (the "Available Funds").
Subject to the terms and conditions of the Trust Agreement and the Call Option (including the availability of funds for distributions) and until the obligation created by the Trust Agreement shall have terminated in accordance therewith, distributions will be made on each Distribution Date to the Person in whose name this Certificate is registered on the applicable Record Date, in an amount equal to such Certificateholder's fractional undivided interest in the amount required to be distributed to the Holders of the Certificates on such Distribution Date. If any payment by the Swap Counterparty with respect to the Currency Swap or a payment due on any February ___ or August ___ with respect to the Interest is not made to the Trustee by the designated times specified in the Trust Agreement on the date such payment is due, or if such payment is not made on the due date, the Trustee will upon receipt of such funds make such distribution on the next Business Day (and no additional amounts of interest shall accrue on the Certificates or be owed to Certificateholders as a result of any such delay).
Distributions made on this Certificate will be made as provided in the Trust Agreement by the Trustee by wire transfer in immediately available funds, without the presentation or surrender of this Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above, the Final Distribution on this Certificate will be made after due notice by the Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency maintained for that purpose by the Trustee in the Borough of Manhattan, the City of New York.
Reference is hereby made to the further provisions of this Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee, by manual signature, this Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER HEREOF SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly executed as of the date set forth below.
YORKSHIRE POWER
PASS-THROUGH ASSET TRUST
2000-1, by The Bank of New
York, not in its individual
capacity but solely as
Trustee
Dated:__________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates described in the Trust Agreement referred to herein.
THE BANK OF NEW YORK, as Trustee
By:_______________________________
Authorized Signatory
or
as Authenticating Agent for the Trustee
By:_______________________________
Authorized Signatory
(REVERSE OF TRUST CERTIFICATE)
The Certificates are limited in right of distribution to certain payments and collections as provided in the Trust Agreement, all as more specifically set forth herein and in the Trust Agreement. The registered Holder hereof, by its acceptance hereof, agrees that it will look solely to payments under the Interest and the Currency Swap for distributions hereunder.
Subject to the next paragraph and to certain exceptions provided in the Trust Agreement, the Trust Agreement permits the amendment thereof and the modification of the rights and obligations of Yorkshire Group and the Trustee and the rights of the Certificateholders under the Trust Agreement at any time by the Administrative Party and the Trustee with the consent of the Holders of Certificates evidencing not less than 66 2/3% of the aggregate Voting Rights of Outstanding Certificates subject to certain provisions set forth in the Trust Agreement. Any such consent by the Holder of this Certificate (or any predecessor Certificate) shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in an exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate. The Trust Agreement also permits the modification or amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates.
The Certificates are issuable in fully registered form only in minimum original principal amounts of $100,000 and integral multiples of $1,000 in excess thereof. As provided in the Trust Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same principal amount, class, original issue date and maturity, in authorized denominations as requested by the Holder surrendering the same.
As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies of the Certificate Registrar maintained by the Trustee in the Borough of Manhattan, the City of New York, duly endorsed by or accompanied by an assignment in the form below and by such other documents as required by the Trust Agreement, and thereupon one or more new Certificates of the same class in authorized denominations evidencing the same principal amount will be issued to the designated transferee or transferees. The Certificate Registrar appointed under the Trust Agreement is The Bank of New York.
No service charge will be made for any registration of transfer or exchange, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
The Administrative Party, Yorkshire Group and the Trustee and any agent thereof may treat the Person in whose name this Certificate is registered as the owner hereof for all purposes, and neither the Administrative Party, Yorkshire Group, the Trustee, nor any such agent shall be affected by any notice to the contrary.
The Trust and the obligations of Yorkshire Group and the
Trustee created by the Trust Agreement with respect to the Certificates shall
terminate upon the distribution by the Trustee on the Final Distribution Date of
(i) all Option Proceeds following an exercise of the Call Option by the
Callholder or an exercise of the Early Redemption Right (and upon receipt by the
Trust from the Swap Counterparty of US Dollars in an amount equal to the
Certificate Principal Amount as a result of such exercise), as the case may be,
or (ii) all Liquidation Proceeds received by the Trustee following a Trust
Termination Event, as the case may be or (iii) all Dollar Distributions or
Pounds Sterling distributions, as the case may be, received by the Trustee, not
previously distributed pursuant to Section 4.1 of the Trust Agreement, whichever
event described in clause (i), (ii) or (iii) above shall be the first to occur;
provided, however, that in no event shall the Trust continue beyond the
expiration of 2l years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late Ambassador of the United States to the Court of St.
James, living on the date hereof.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar, with full power of substitution in the premises.
Dated:
*Signature Guaranteed;
*
* NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Certificate in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Certificate Registrar, which requirements include membership or participation in STAMP or such other "signature guarantee program" as may be determined by the Certificate Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT 10.81
DATED 27TH SEPTEMBER; 2001
NORTHERN ELECTRIC FINANCE plc
- and -
NORTHERN ELECTRIC plc
- and -
NORTHERN ELECTRIC DISTRIBUTION LIMITED
- and -
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
FIRST SUPPLEMENTAL TRUST DEED
modifying and restating the provisions of the
Master Trust Deed dated 16th October, 1995
constituting the
(pound)100,000,000
8.625 per cent. Guaranteed Bonds due 2005
and the
(pound)100,000,000
8.875 per cent. Guaranteed Bonds due 2020
of Northern Electric Finance plc
ALLEN & OVERY
London
THIS FIRST SUPPLEMENTAL TRUST DEED is made on 27th September, 2001 BETWEEN:
(1) NORTHERN ELECTRIC FINANCE plc whose registered office is at Carliol House, Market Street, Newcastle-Upon-Tyne NEl 6NE (the "Company" or the "Issuer");
(2) NORTHERN ELECTRIC plc whose registered office is at Carliol House, Market Street, Newcastle-Upon-Tyne NE1 6NE ("NE");
(3) NORTHERN ELECTRIC DISTRIBUTION LIMITED whose registered office is at Carliol House, Market Street, Newcastle-Upon-Tyne NEl 6NE ("NEDL" and, together with NE, the "Guarantors" and each a "Guarantor"); and
(4) THE LAW DEBENTURE TRUST CORPORATION p.l.c. whose registered office is at Fifth Floor, 100 Wood Street, London EC2V 7EX (the "Trustee", which expression shall, where the context so admits, include all persons for the time being the trustee or trustees of these presents).
WHEREAS:
(A) This First Supplemental Trust Deed is supplemental to the Master Trust
Deed dated 16th October, 1995 (hereinafter called the "Master Trust
Deed") made between the Issuer, NE and the Trustee and constituting the
(pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005 and the
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020 of the
Issuer (together, the "Bonds").
(B) The Issuer wishes to make certain modifications to the terms and conditions of the Bonds (the "Conditions") and to the Master Trust Deed to reflect:
(i) the requirement of the Utilities Act 2000 that the supply of electricity and distribution of electricity be performed by separate corporate entities; and
(ii) the splitting of the PBS Licence into an electricity supply licence (which will be held by Northern Electric & Gas 2 Limited ("NEAG2L")) and an electricity distribution licence (which will be held by NEDL, a wholly-owned subsidiary of NE), such licences to be issued to NEAG2L and NEDL on 1st October, 2001 or whatever alternative date is notified to the Guarantor by the Secretary of State for Trade and Industry (the "Effective Date");
together with certain other modifications in connection therewith.
(C) By virtue of Clause 15.1 of the Master Trust Deed the Trustee may agree without the consent of the Bondholders or the Couponholders to any modification to these presents (save as provided therein) which in its opinion is not materially prejudicial to the interests of the Bondholders.
(D) NE has requested the Trustee to concur in making the modifications to the Conditions and the provisions of the Master Trust Deed referred to in Recital (B) above.
(E) The Trustee being of the opinion that the modifications referred to in recital (B) above will not be materially prejudicial to the interests of the Bondholders, has concurred with the Issuer and NE that the Conditions and the Master Trust Deed should be modified in the manner hereinafter appearing.
NOW THIS FIRST SUPPLEMENTAL TRUST DEED WITNESSES AND IT IS HEREBY DECLARED AS FOLLOWS:
1. DEFINITIONS
Subject as hereinafter provided and unless there is anything in the subject or context inconsistent therewith all words and expressions defined in the Master Trust Deed shall have the same meanings in this First Supplemental Trust Deed.
2. GUARANTEE
(A) With effect on and from the Effective Date, NEDL hereby irrevocably
and unconditionally guarantees to the Trustee, on a joint and several
basis with NE, the due and punctual payment by the Company of all
moneys payable from time to time in respect of the Original Bonds and
the Original Coupons (including, without prejudice to the generality
of the foregoing, all additional amounts payable pursuant to Condition
8) and all other moneys payable from time to time under or pursuant to
these presents on the terms of Clause 3 of the Master Trust Deed (as
modified as provided in Clause 3 below) and accordingly all the
provisions of Clause 3 of the Master Trust Deed (as so modified) shall
have effect as though such provisions were herein set forth.
(B) NEDL hereby covenants with the Trustee that, with effect on and from the Effective Date, it will comply with and perform and observe all of the provisions of the Master Trust Deed (as modified as provided in Clause 3 below) and these presents which are expressed to be binding on it (including those which may subsequently be determined to be illegal, invalid or unenforceable for any reason).
(C) NE hereby confirms and acknowledges that with effect on and from the Effective Date it is jointly and severally liable with NEDL in respect of its obligations under Clause 3 of the Master Trust Deed.
3. MODIFICATIONS TO THE CONDITIONS AND THE MASTER TRUST DEED
Save for the purposes (where necessary) of construing the provisions of this First Supplemental Trust Deed, with effect on and from the Effective Date:
(i) the Master Trust Deed (including the Conditions) is hereby modified in such manner as would result in the Master Trust Deed being in the form set out in the Schedule hereto; and
(ii) the provisions of the Master Trust Deed shall cease to have effect and in lieu thereof the provisions of the Master Trust Deed (being in the form set out in the Schedule hereto) shall have effect.
4. ORIGINAL BOND CERTIFICATES
With effect on and from the Effective Date, the Certificates and Coupons in respect of the Original Bonds (which shall not be called in for replacement) shall be deemed to be modified in such manner as would result in the Certificates and Coupons in respect of the Original Bonds being in the form set out in Parts I and III of Schedule I (in the case of the Original Bonds 2005) and in Parts I and III of Schedule 3 (in the case of the Original Bonds 2020) to the Master Trust Deed set out in the Schedule hereto.
5. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A Person who is not a party to this First Supplemental Trust Deed has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this First Supplemental Trust Deed, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
6. NOTICE TO BONDHOLDERS
The Company covenants with the Trustee that not later than 14 days after the Effective Date it will give notice to the Bondholders of the modifications contained herein in a form previously approved by the Trustee.
7. GENERAL
(i) The Master Trust Deed and this First Supplemental Trust Deed shall henceforth be read and construed as one Trust Deed.
(ii) A memorandum of this First Supplemental Trust Deed shall be endorsed by the Trustee on the original of the Master Trust Deed and by the Company and NE on their duplicates thereof.
(iii) This First Supplemental Trust Deed may be executed in counterparts, each of which, taken together, shall constitute one and the same First Supplemental Trust Deed and any party may enter into this First Supplemental Trust Deed by executing a counterpart.
(iv) The Company shall procure that for so long as any of the Bonds remains outstanding each of the Agents shall make available at its specified office for inspection by Original Bondholders copies of this First Supplemental Trust Deed.
IN WITNESS whereof this First Supplemental Trust Deed has been executed as a deed by the Company, NE, NEDL and the Trustee and delivered on the date first stated on page 1 above.
SCHEDULE
FORM OF MODIFIED AND RESTATED MASTER TRUST DEED
DATED 16th October, 1995
NORTHERN ELECTRIC FINANCE plc
NORTHERN ELECTRIC plc
NORTHERN ELECTRIC DISTRIBUTION LIMITED
and
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
MASTER TRUST DEED
constituting
(pound)100,000,000 8.625 per cent.
Guaranteed Bonds due 2005
and
(pound)100,000,000 8.875 per cent.
Guaranteed Bonds due 2020
with power to issue further securities
CONTENTS
Clause Page 1. Interpretation............................................................1 2. Amounts of Original Bonds and covenant to pay.............................7 3. Guarantee.................................................................9 4. Forms of Original Bonds and Original Coupons.............................11 5. Stamp duties and ........................................................12 6. Further Bonds............................................................13 7. Application of moneys received by Trustee................................14 8. Covenants to comply with provisions......................................15 9. Covenants................................................................16 10. Remuneration and indemnification of Trustee..............................19 11. Provisions supplemental to Trustee Act 1925..............................21 12. Trustee liable for breach of trust.......................................25 13. Waiver, proof of default, consents and Trustee's power to apply to Court.25 14. Trustee not precluded from entering into contracts.......................26 15. Modification and substitution............................................26 16. Appointment, retirement and removal of Trustee...........................29 17. Couponholders............................................................30 18. Communications...........................................................30 19. Powers in addition.......................................................31 20. Severability.............................................................31 21. Execution................................................................32 22. Counterparts.............................................................32 23. Governing law............................................................32 24. Contracts (Rights of Third Parties) Act 1999.............................32 Schedules 1. Part I - Form of individual Certificate for Original Bonds 2005...........33 Part II - Form of Original Global Bonds 2005..............................35 Part III - Form of Original Coupon 2005...................................42 2. Terms and Conditions of Original Bonds 2005...............................44 3. Part I - Form of individual Certificate for Original Bonds 2020...........62 Part II - Form of Original Global Bond 2020...............................64 Part III - Form of Original Coupon 2020...................................71 Part IV - Form of Original Talon 2020.....................................73 4. Terms and Conditions of Original Bonds 2020...............................75 5. Provisions for Meetings of Bondholders....................................93 |
THIS TRUST DEED is made on 16th October, 1995 BETWEEN:
(1) NORTHERN ELECTRIC FINANCE plc whose registered office is at Carliol House, Market Street, Newcastle-Upon-Tyne NEl 6NE (the "Company" or the "Issuer");
(2) NORTHERN ELECTRIC plc whose registered office is at Carliol House, Market Street, Newcastle-Upon-Tyne NEl 6NE ("NE");
(3) NORTHERN ELECTRIC DISTRIBUTION LIMITED whose registered office is at Carliol House, Market Street, Newcastle-Upon-Tyne NE 1 6NE ("NEDL" and, together with NE, the "Guarantors" and each a "Guarantor"); and
(4) THE LAW DEBENTURE TRUST CORPORATION p.l.c. whose registered office is at Fifth Floor, 100 Wood Street, London EC2V 7EX (the "Trustee", which expression shall, where the context so admits, include all persons for the time being the trustee or trustees of these presents).
WHEREAS:
(A) The Company, incorporated in England and Wales with registered number 3070482, has by resolution of its Board of Directors passed on 9th October, 1995 authorised the issue of (pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005 and (pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020 to be constituted by these presents.
(B) NE, incorporated in England and Wales with registered number 2366942, by resolution of a duly authorised committee of its Board of Directors passed on 9th October, 1995 resolved to give its guarantee in relation to the said Bonds upon and subject to the terms and conditions of these presents.
(C) NEDL, incorporated in England and Wales with registered number 2906593, by a resolution of its Board of Directors passed on 26th September, 2001 resolved to give its guarantee in relation to the said Bonds upon and subject to the terms and conditions of these presents.
(D) The Trustee has agreed to act as trustee of these presents on and subject to the terms and conditions set out in these presents.
NOW THIS DEED WITNESSES AND IT IS HEREBY AGREED AND DECLARED as follows:
1. INTERPRETATION
1.1 Definitions
In these presents, unless the context otherwise requires, the following expressions shall have the following meanings:
"Agency Agreement" means, in relation to the Original Bonds 2005, the Paying Agency Agreement dated 16th October, 1995 between the Company, NE, the Trustee, the Principal Paying Agent and the other Paying Agents whereby the Agents were appointed in respect of the Original Bonds 2005, in relation to the Original Bonds 2020, the Paying Agency Agreement dated 16th October, 1995 between the Company, NE, the Trustee, the Principal Paying Agent and the other Paying Agents whereby the Agents were appointed in respect of the Original Bonds 2020 and, in relation to any Further Bonds, the agreement appointing, on terms previously approved in writing by the Trustee, the Principal Paying Agent and the other Paying Agents and/or any other Agent in respect of such Further Bonds and, in relation to the relevant Bonds, includes any agreement (whether made pursuant to another agreement or otherwise) appointing, on terms previously approved in writing by the Trustee, a further or another Agent and any other agreement for the time being in force, the terms of which shall have been previously approved in writing by the Trustee, relating to the duties of any Agent or amending or modifying any of such agreements;
"Agents" means, in relation to the Original Bonds, the Principal Paying Agent and the other Paying Agents or, as the context requires, any of them and, in relation to any Further Bonds, any Principal Paying Agent and other Paying Agents and other agent approved by the Trustee appointed under the Agency Agreement in respect of such Further Bonds or, as the context requires, any of them;
"Auditors" means the auditors for the time being of the Company or either Guarantor (as the case may require) or, if there shall be joint auditors, any one or more of such auditors or, in the event of their being unable or unwilling to carry out any action requested of them pursuant to these presents, such other chartered accountant or firm of chartered accountants as may be nominated by the Company or the relevant Guarantor (as the case may require) with the prior written approval of the Trustee or, in default of such nomination and approval, nominated by the Trustee after consultation with the Company or the relevant Guarantor (as the case may require) where such consultation is not prejudicial to the interests of the Bondholders for the purpose;
"Bondholder" and, in relation to a Bond, "holder" means the bearer of that Bond;
"Bonds" means the Original Bonds and/or, as the context may require, any Further Bonds;
"Certificate" means a certificate in definitive form representing a Bond including any Global Bond and includes any replacement certificate in definitive form issued pursuant to the relevant Conditions;
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Conditions" means, in relation to the Original Bonds 2005, the terms and conditions set out in Schedule 2 and, in relation to the Original
Bonds 2020, the terms and conditions set out in Schedule 4 or, in either case, the terms and conditions for the time being endorsed on the Original Bonds as the same may from time to time be modified in accordance with these presents and references in these presents to a particular numbered Condition shall, in relation to the Original Bonds, be construed accordingly and, in relation to any Further Bonds, the terms and conditions for the time being endorsed on such Further Bonds and references in these presents to a particular numbered Condition shall, in relation to any Further Bonds, unless either referring specifically to a particular numbered Condition of such Further Bonds or the context otherwise requires, be construed as a reference to the provisions (if any) in the Conditions thereof which corresponds to the provisions of the particular numbered Condition of the Original Bonds;
"Couponholder" and, in relation to a Coupon, "holder" means the bearer of a Coupon;
"Coupons" means the Original Coupons and/or, as the context may require, the bearer interest coupons for the time being relating to any Further Bonds or, as the context may require, a specific number of them and includes any replacement coupons issued pursuant to the relevant Conditions and, where the context so permits, the Talons (if any);
"Couponholder" means, in relation to a Coupon, the bearer of a Coupon;
"Distribution Licence" has the meaning set out in Condition 3;
"Euroclear" means Euroclear Bank S.A./N.V. as operator of the Euroclear System;
"Event of Default" means any of the events described in paragraphs (a) to (i) (inclusive) of Condition 10 which, in the case of the events described in paragraphs (b), (c), (d), (e), (f), (g), (h) and (i) of such Condition, shall have been certified in writing by the Trustee to be in its opinion materially prejudicial to the interests of the Bondholders;
"Extraordinary Resolution" has the meaning set out in paragraph 21 of Schedule 5;
"Further Bonds" means any further bonds or notes or similar securities issued in accordance with the provisions of Clause 6 and constituted by a deed supplemental to this Master Trust Deed or, as the context may require, a specific number of them and includes the Certificates representing the same including any relevant Global Bond;
"Global Bond" means the Original Global Bond 2005 and/or, as the context may require, the Original Global Bond 2020 and/or, as the context may require, any other global Bond Certificate in definitive form representing Further Bonds or any of them;
"issue" includes allot and vice versa;
"London Stock Exchange" means the London Stock Exchange plc;
"Original Bonds" means the Original Bonds 2005 and/or, as the context may require, the Original Bonds 2020;
"Original Bonds 2005" means the Bonds in bearer form comprising the
(pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005
constituted by these presents and for the time being outstanding or, as
the context may require, a specific number of them and includes the
Certificates representing the same including the Original Global Bond
2005;
"Original Bonds 2020" means the Bonds in bearer form comprising the
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020
constituted by these presents and for the time being outstanding or, as
the context may require, a specific number of them and includes the
Certificates representing the same including the Original Global Bond
2020;
"Original Bondholders" means the holders for the time being of the Original Bonds;
"Original Coupons" means the Original Coupons 2005 and/or, as the context may require, the Original Coupons 2020;
"Original Coupons 2005" means the Coupons relating to the Original Bonds 2005;
"Original Coupons 2020" means the Coupons relating to the Original Bonds 2020;
"Original Couponholders" means the holders for the time being of the Original Coupons;
"Original Global Bond" means the Original Global Bond 2005 and/or, as the context may require, the Original Global Bond 2020;
"Original Global Bond 2005" means the single temporary global Bond Certificate in definitive form in respect of the Original Bonds 2005;
"Original Global Bond 2020" means the single temporary global Bond Certificate in definitive form in respect of the Original Bonds 2020;
"Original Talons 2020" means the Talons relating to the Original Bonds 2020;
"outstanding" means, in relation to the Bonds, all the Bonds issued other than:
(a) those which have been redeemed and cancelled in accordance with the Conditions;
(b) those in respect of which the date for redemption in accordance with the Conditions has occurred and the redemption moneys (including all interest accrued on such Bonds to the date for such redemption and any interest payable under Condition 4 after such date) have been duly paid to the relevant Bondholder (or to a person on behalf of such Bondholder) or to the Trustee or to the Principal Paying Agent as provided in the proviso to Clause 2.3 and remain available
for payment against presentation and surrender of Bonds and/or Coupons, as the case may be;
(c) those which have become void or in respect of which claims have become prescribed under Condition 9;
(d) those mutilated or defaced Bonds which have been surrendered and cancelled in exchange for replacement Bonds pursuant to Condition 13;
(e) (for the purpose only of determining how many Bonds are outstanding and without prejudice to their status for any other purpose) those Bonds which are alleged to have been lost, stolen or destroyed and in respect of which replacement Bonds have been issued pursuant to Condition 13;
(f) those which have been purchased and cancelled as provided in Condition 6;
(g) the Global Bond to the extent that it shall have been exchanged for individual Bonds,
provided that for the purposes of:
(i) ascertaining the right to attend and vote at any meeting of the Bondholders;
(ii) the determination of how many Bonds are outstanding for the purposes of Clause 8.2 and Conditions 7(D), 10, 11 and 15 and Schedule 5;
(iii) the exercise of any discretion, power or authority which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Bondholders or, as the case may be, any of them; and
(iv) the determination by the Trustee whether any event, circumstance, matter or thing is, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders,
those Bonds (if any) which are beneficially held by, or are held on behalf of, the Company or either Guarantor or any of the Subsidiaries and not yet cancelled shall (unless and until cancelled or, as the case may be, ceasing to be so held) be deemed not to remain outstanding;
"Paying Agents" means, in relation to the Original Bonds, the several institutions (including the Principal Paying Agent) at their respective specified offices referred to in the Conditions and, in relation to any Further Bonds, such institutions at their respective specified offices as shall be appointed under the Agency Agreement as Paying Agents in respect of such Further Bonds by or on behalf of the Company with the prior written approval of the Trustee or, in any case, such other institutions at their respective specified offices as may from time to time be appointed under the Agency Agreement as Paying Agents in respect of the relevant Bonds by or on behalf of the Company with the prior written approval of the Trustee;
"Potential Event of Default" means an event or circumstance which would with the giving of notice and/or lapse of time and/or the issuing of a certificate and/or the fulfillment of any other requirement provided for in Condition 10 become an Event of Default;
"Principal Paying Agent" means, in relation to the Original Bonds, Barclays Bank PLC at its specified office in its capacity as Principal Paying Agent in respect of the Original Bonds and, in relation to any Further Bonds, such institution at its specified office as shall be appointed under the Agency Agreement as the Principal Paying Agent in respect of such Further Bonds by or on behalf of the Company with the prior written approval of the Trustee or, in any case, such other institution at its specified office as may from time to time be appointed under the Agency Agreement as Principal Paying Agent in
respect of the relevant Bonds by or on behalf of the Company with the prior written approval of the Trustee;
"specified office" means, in relation to any Agent, either the office identified with its name at the end of the Conditions or any other office approved by the Trustee and notified to the Bondholders pursuant to Clause 9.1(k); "Subsidiary" means a subsidiary for the time being of the Company or either Guarantor;
"Talons" means the Original Talons 2020 and/or, as the context may require, the talons relating to, and exchangeable in accordance with the provisions therein contained for further Coupons relating to, any relevant Further Bonds or, as the context may require, a specific number of them and includes any replacement talons issued pursuant to the relevant Conditions;
"these presents" means this Master Trust Deed, including its Schedules, as altered from time to time, and any other document executed in accordance with or pursuant to this Master Trust Deed, as so altered, and expressed to be supplemental to this Master Trust Deed and includes the Bonds, the Coupons and the Conditions; and
"trust corporation" means a corporation entitled by rules made under the Public Trustee Act 1906 or entitled pursuant to any other legislation applicable to a trustee in any jurisdiction other than England to carry out the functions of a custodian trustee.
1.2 Construction of certain references
Unless otherwise provided in these presents, references in these presents to:
(a) costs, charges, remuneration or expenses shall include any value added tax, turnover tax or similar tax charged in respect thereof and legal fees and expenses on a full indemnity basis;
(b) "sterling" and "(pound)" shall be construed as references to the lawful currency for the time being of the United Kingdom;
(c) the expressions "subsidiary" and "holding company" have the respective meanings ascribed thereto by the Companies Act 1985;
(d) any action, remedy or method of judicial proceedings for the enforcement of rights of creditors shall include, in respect of any jurisdiction other than England, references to such action, remedy or method of judicial proceedings for the enforcement of rights of creditors available or appropriate in such jurisdiction as shall most nearly approximate thereto;
(e) words denoting the singular number only shall include the plural number and vice versa;
(f) words denoting one gender only shall include the other genders;
(g) words denoting persons only shall include firms and corporations and vice versa;
(h) any provision of any statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment;
(i) any document shall be deemed also to refer to any amendment thereto;
(j) Schedules and Clauses shall be construed as references to Schedules to, and to Clauses of, this Trust Deed respectively;
(k) the carrying out of the trusts of these presents includes the exercise of the functions of the Trustee under these presents and the exercise of the powers, authorities and discretions vested in the Trustee (or any agent or delegate or sub-delegate) by, under or pursuant to these presents;
(l) taking proceedings against the Company and/or a Guarantor shall be deemed to include references to proving in the winding-up of the Company and/or a Guarantor;
(m) principal or principal amount of and/or interest in respect of the Bonds shall include any premium and other additional amounts which may be payable under Condition 6(B) or 8 or (in the case of Condition 8) under any obligations undertaken in addition thereto or in substitution therefor pursuant to these presents; and
(n) Bonds being "listed" or "having a listing" shall, in relation to the London Stock Exchange, be construed to mean that such Securities have been admitted to the Official List by the UK Listing Authority and to trading on the London Stock
Exchange's market for listed securities and all references in these presents to "listing" or "listed" shall include references to "quotation" and "quoted", respectively.
1.3 Definitions in Conditions
Words and expressions defined in the Conditions and not otherwise defined in the main body of any other document comprised in these presents shall when used in these presents have the meanings given to them in the Conditions.
1.4 Headings
Headings shall be ignored in construing these presents.
1.5 Schedules
The Schedules to any document comprised in these presents form part of these presents and shall have effect accordingly.
1.6 Enforceability
If at any time any provision of these presents is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of these presents nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby.
2. AMOUNTS OF ORIGINAL BONDS AND COVENANT TO PAY
2.1 Amounts of Original Bonds
The aggregate principal amount of the Original Bonds 2005 is limited to
(pound)100,000,000. The aggregate principal amount of the Original
Bonds 2020 is limited to (pound)100,000,000.
2.2 Original Bonds separate series
The Original Bonds 2005 and the Original Bonds 2020 shall be separate series and the provisions of Clauses 1.1 (to the extent applicable), 2.3, 2.4, 2.5, 2.6, 3, 4.3, 4.4, 4.5 and of Clauses 5 to 23 (inclusive) and Schedule 5 shall apply mutatis mutandis separately and independently to the Original Bonds 2005 and the Original Bonds 2020 and shall be construed accordingly.
2.3 Covenant to pay
The Company will by 11.00 a.m. (London time) on any date when the Original Bonds or any of them become due to be redeemed or, if the due
date is not a Business Day in London, on the immediately following Business Day in London unconditionally pay to or to the order of the Trustee in sterling in immediately available funds in London (or such other place as the Trustee and the Company may agree in writing) the principal amount of the Original Bonds becoming due for redemption on that date and will (subject to the Conditions) up to and including the date of such payment (both before and after judgment) unconditionally so pay to or to the order of the Trustee in sterling in immediately available funds in London (or such other place as the Trustee and the Company may agree in writing) interest on the principal amount of the Original Bonds outstanding as set out in the Conditions, provided that:
(a) every payment of any such principal amount and/or interest made to or to the order of the Principal Paying Agent as provided in the Agency Agreement shall, to such extent, satisfy the applicable such obligation except to the extent that there is failure in the subsequent payment of such principal amount and/or interest (as the case may be) to the relevant Original Bondholders or Original Couponholders (as the case may be);
(b) in the case of any payment of principal amount and/or interest made after the due date therefor or following the application of Condition 10, the principal amount in respect of which the payment thereof or of the interest thereon shall have been so made shall continue to bear interest until the day the full amount due has been received by or to the order of the Trustee or by the Principal Paying Agent as provided in the Agency Agreement and notice to that effect has been given to the Original Bondholders if required in accordance with Clause 9.1(i), except to the extent that there is failure in the subsequent payment of such principal amount and/or interest (as the case may be) to the relevant Original Bondholders or Original Couponholders (as the case may be), and so that a full amount due shall be deemed to have been received by or to the order of the Trustee on the day when by 11.00 a.m. (London time) such amount shall have been so received in sterling in immediately available funds in London (or such other place as the Trustee and the Company may agree in writing); and
(c) in the event that on the occasion for redemption or purchase of any Original Bond falling to be redeemed or, as the case may be, purchased payment of any principal amount and/or interest due in respect of that Original Bond is improperly withheld or refused, the principal amount in respect of which the payment thereof or of the interest thereon shall have been so improperly withheld or refused will continue to bear interest as aforesaid up to and including the date on which such payment is deemed to have been received by the Trustee as provided in paragraph (b) of this proviso.
The Trustee will hold the benefit of this covenant on trust for the Original Bondholders and Original Couponholders.
2.4 Discharge
Subject to Clause 2.5, any payment to be made in respect of the Bonds or the Coupons by the Company, either Guarantor or the Trustee may be made as provided in the Conditions and any payment so made will (subject to Clause 2.5) to such extent be a good discharge to the Company, the relevant Guarantor or the Trustee, as the case may be.
2.5 Payment after default
At any time after a Potential Event of Default has occurred and whilst the same is subsisting or after an Event of Default has occurred and is continuing the Trustee may:
(a) by notice in writing to the Company, the Guarantors and the Agents require the Agents, until notified by the Trustee to the contrary, so far as permitted by any applicable law:
(i) to act thereafter as Agents of the Trustee in relation to payments to be made by or on behalf of the Trustee under these presents on the terms of the Agency Agreement (with consequential amendments as necessary and save that the Trustee's liability for the indemnification, remuneration and all other out-of-pocket expenses of the Agents will be limited to the amounts for the time being held by the Trustee in respect of the Bonds on the terms of these presents) and thereafter to hold all Bonds and Coupons and all moneys, documents and records held by them in respect of Bonds and Coupons to the order of the Trustee; and/or
(ii) to deliver all Bonds and Coupons and all moneys, documents and records held by them in respect of the Bonds and Coupons to the Trustee or as the Trustee directs in such notice, provided that such notice shall be deemed not to apply to any documents or records which the relevant Agent is obliged not to release by any law or regulation; and
(b) by notice in writing to the Company and the Guarantors require each of them to make all subsequent payments in respect of the Bonds and the Coupons to or to the order of the Trustee and not to the Principal Paying Agent.
If the Potential Event of Default in respect of which the Trustee has given notice in writing to the Company, the Guarantors and the Agents as aforesaid shall cease to subsist and provided that:
(i) no other Potential Event of Default shall have occurred and be subsisting or be about to occur; or
(ii) no Event of Default shall have occurred and be continuing or be about to occur; or
(iii) the Bonds shall not have been declared immediately due and repayable,
the Trustee shall by notice in writing to the Company, the Guarantors and the Agents require the Agents to cease acting forthwith as the Agents of the Trustee.
The provisions of this Clause 2.5 may apply on any number of occasions.
2.6 Ranking of obligations
The Company hereby covenants with the Trustee that the obligations of the Company in respect of the Bonds and the Coupons constitute direct, unconditional and, subject to Condition 3, unsecured obligations of the Company and that the Bonds and the Coupons rank and will rank pari passu and rateably without any preference or priority among themselves and, subject to Condition 3, rank and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the Company, present and future, but, in the event of the insolvency of the Company, only to the extent permitted by applicable laws relating to creditors' rights.
3. GUARANTEE
3.1 Guarantor's liability
The Guarantors hereby irrevocably and unconditionally guarantee on a joint and several basis to the Trustee the due and punctual payment by the Company of all moneys payable from time to time in respect of the Original Bonds and the Original Coupons (including, without prejudice to the generality of the foregoing, all additional amounts payable pursuant to Condition 8) and all other moneys payable from time to time under or pursuant to these presents as follows:
(a) if and whenever the Company shall make default in the payment of any such moneys, the Guarantors shall forthwith upon written demand therefor by the Trustee irrevocably and unconditionally pay to or to the order of the Trustee in sterling the amount in respect of which such default has been made and any payment so made shall to such extent cure such default by the Company subject as provided in Clauses 2.3, 2.4 and 2.5, the provisions of which Clauses shall apply mutatis mutandis to such payment;
(b) as a separate and independent stipulation each Guarantor agrees that any such moneys which may not be recoverable from the Company by reason of any legal limitation, disability or incapacity on or of the Company or any other fact or circumstance shall nevertheless be recoverable from the Guarantor as though the same had been incurred by the Guarantor and the Guarantor were the sole and principal debtor in respect thereof and shall be paid by the Guarantor forthwith upon written demand therefor by the Trustee. The Guarantors shall not be exonerated or discharged from liability by time being given, or any other indulgence or concession being granted, to the Company by the
Trustee or by the Original Bondholders or the Original Couponholders or any of them or by anything done by the Trustee in exercise of any of the trusts, powers, authorities or discretions vested in it by these presents or by anything which the Original Bondholders or the Original Couponholders or the Trustee or any of them may do or omit or neglect to do or by any other dealing or thing which, but for this provision, might operate to exonerate or discharge the Guarantors from their obligations hereunder. It is further agreed as a separate and independent stipulation that any sums of money which may not be recoverable from a Guarantor on the footing of a guarantee whether by reason of any legal limitation, disability or any other fact or circumstances and whether or not known to the Trustee or the Original Bondholders or the Original Couponholders or any of them shall nevertheless be recoverable from such Guarantor as sole or principal debtor in respect thereof and shall be paid by such Guarantor to the Trustee forthwith upon written demand therefor by the Trustee;
(c) this guarantee shall be a continuing guarantee and accordingly shall remain in operation until all such moneys have been paid or satisfied in full and shall be in addition to and not in substitution for, and shall not be affected by, any other rights which the Trustee or the Original Bondholders or the Original Couponholders or any of them may have under or by virtue of these presents and may be enforced without first having recourse to any such rights and without taking any steps or proceedings against the Company;
(d) the Trustee may from time to time make any arrangement or compromise with either Guarantor in relation to this guarantee which the Trustee may think fit;
(e) prior to the liquidation of the Company, the Guarantors shall not, without the prior written consent of the Trustee, at any time after default has been made by the Company in the payment of any such moneys and so long as any moneys payable from time to time by a Guarantor in respect of such defaulted moneys remain unpaid, exercise in respect of any amounts paid under this guarantee any right of subrogation, indemnity or reimbursement or any other right or remedy which a Guarantor may have in respect of or as a result of such payment;
(f) in the event of the liquidation of the Company, if any moneys shall then be payable by a Guarantor under this guarantee, each Guarantor will, until all such moneys payable from time to time in respect of the Original Bonds and the Original Coupons and all other moneys payable from time to time under or pursuant to these presents have been paid in full hold the benefit of all its claims against the Company upon Trust to pay the same to the Trustee and shall prove for such claims against the Company and each Guarantor hereby irrevocably authorises the Company to pay to the Trustee, to the extent that all such moneys payable from time to time in respect of the Original Bonds and the Original Coupons and all other moneys payable under or pursuant to these presents shall not have been paid in full, all moneys due in respect of such claims;
(g) if any payment received by the Trustee or any Original Bondholder or Original Couponholder pursuant to the provisions hereof shall be avoided under any laws relating to bankruptcy, insolvency, corporate reorganisation or other similar events, such payment shall not be considered as having discharged or diminished the liability of the Guarantors, and this guarantee shall continue to apply as if such payment had at all times remained owing by the Company and the Guarantors shall indemnify the Trustee and the Original Bondholders and Original Couponholders in respect thereof.
3.2 No payments by Company
If any moneys shall become payable by a Guarantor under the guarantee, the Company shall not (save in the event of the liquidation of the Company), so long as such moneys remain unpaid, pay any moneys for the time being due by the Company to either Guarantor.
3.3 Consents and authorisations
If at any time any authorisation or approval becomes necessary to permit either Guarantor to pay any moneys payable from time to time in respect of the Original Bonds or the Original Coupons or under or pursuant to these presents in accordance with the terms of these presents as a result of any change in, any change in the official application of, or any amendment to, the laws or regulations of the United Kingdom, the relevant Guarantor shall forthwith apply for the necessary authorisation and approval and shall provide copies of such application as soon as reasonably practicable to the Trustee. The relevant Guarantor shall provide copies of such authorisation and approval to the Trustee as soon as they are obtained.
3.4 Application of moneys received by Trustee
Any amount from time to time received by the Trustee under this guarantee shall be applied by the Trustee in accordance with the provisions of Clause 7.
3.5 Nature of obligations
Each Guarantor hereby covenants with the Trustee that the obligations of each Guarantor under this guarantee constitute direct, unconditional and, subject to Condition 3, unsecured obligations of such Guarantor and, subject to Condition 3, rank and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of such Guarantor, present and future but, in the event of the insolvency of the relevant Guarantor, only to the extent permitted by applicable laws relating to creditors' rights.
4. FORMS OF ORIGINAL BONDS AND ORIGINAL COUPONS
4.1 Original Global Bond
The Original Bonds 2005 were initially represented by the Original
Global Bond 2005 and the Original Bonds 2020 were initially represented
by the Original Global Bond 2020, each in the principal amount of
(pound)100,000,000 and each of which was exchangeable for relevant
individual Original Bonds (serially numbered) in denominations of
(pound)1,000, (pound)10,000 and (pound)100,000 each with Coupons
attached as set out in the relevant Original Global Bond. The Company
issued each Original Global Bond to a bank depositary common to both
Euroclear and Clearstream, Luxembourg on terms that such depositary
shall hold the same for the account of the persons who would otherwise
be entitled to receive the Original Bonds (as notified to such
depositary by the Principal Paying Agent) and the successors in title
to such persons as appearing in the records of Euroclear and
Clearstream, Luxembourg for the time being. The Company issued the
relevant Original Bonds in exchange for the relevant Original Global
Bond in accordance with the provisions thereof. Pending exchange of an
Original Global Bond, its holder was deemed to be the holder of the
relevant individual Original Bonds and Original Coupons for all
purposes.
4.2 Original Bonds and Original Coupons
The Certificates representing the Original Bonds and the Original Coupons are security printed in accordance with the applicable stock exchange requirements. The individual Certificates representing Original Bonds 2005, the Original Global Bond 2005 and the Original Coupons 2005 are in or substantially in the respective forms set out in Parts I, II and III of Schedule 1 and the Original Bonds 2005 are endorsed with the Conditions set out in Schedule 2. The individual Certificates representing Original Bonds 2020, the Original Global Bond 2020, the Original Coupons 2020 and the Original Talons 2020 are in or substantially in the respective forms set out in Parts I, II, III and IV of Schedule 3 and the Original Bonds 2020 are endorsed with the Conditions set out in Schedule 4. Title to the Original Bonds and the Original Coupons shall pass by delivery.
4.3 Signature
Each Original Global Bond and individual Certificate representing Original Bonds and Original Coupon is or will be signed manually or in facsimile by two Directors of the Company and two Directors of NE and is or will be authenticated by or on behalf of the Principal Paying Agent. The Company and NE may use the facsimile signature of any person who was at the date of this Master Trust Deed a Director of the Company or NE respectively even if at the time of issue of any Original Global Bond, individual Certificate representing Original Bonds or Original Coupon he no longer holds such office. An Original Global Bond, an individual Certificate representing Original Bonds or an Original Coupon which is not so executed and authenticated shall not be valid for any purpose. Each Original Global Bond and individual Certificate representing Original Bonds and Original Coupon which shall be so executed and authenticated shall represent valid binding and enforceable obligations of the Company and of each Guarantor.
4.4 Issue
Issue and delivery of the Original Bonds was complete on the issue and delivery of the relevant Original Global Bond to the depositary referred to in Clause 4.1 (or its representative) by, or at the order of, the Company and NE.
4.5 Bondholder deemed to be absolute owner
The Company, each Guarantor, the Trustee and the Agents may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bond and the holder of any Coupon as the absolute owner of such Bond or such Coupon, as the case may be, for all purposes (whether or not such Bond or such Coupon shall be overdue and notwithstanding any notice of ownership or writing thereon or any notice of previous loss or theft thereof), and the Company, each Guarantor, the Trustee and the Agents shall not be affected by any notice or other matter to the contrary, and shall not be liable to anyone for so treating such holder. All payments made to any such holder shall be valid and, to the extent of the sums so paid, effective to satisfy and discharge the liability for the moneys payable upon such Bond or Coupon, as the case may be.
5. STAMP DUTIES AND TAXES
5.1 Stamp duties
The Company (failing which the Guarantors) will pay any capital, stamp, issue, registration, documentary and other similar taxes and duties and all costs and expenses, including interest and penalties, payable in the United Kingdom, Belgium and Luxembourg in respect of the creation, constitution, issue and original offering of the Bonds and the Coupons, and the execution and delivery of these presents. The Company (failing which the Guarantors) will also indemnify the Trustee, the Bondholders and the Couponholders from and against all stamp, issue, registration, documentary and other taxes and duties paid by any of them in any jurisdiction in relation to which the liability to pay arises directly as a result of any action taken by or on behalf of the Trustee or, as the case may be (where entitled under Condition 11 to do so), the Bondholders or the Couponholders to enforce the obligations of the Company or either Guarantor under these presents.
5.2 Change of taxing jurisdiction
If the Company and/or either Guarantor becomes subject generally to the taxing jurisdiction of any territory or any political sub-division or authority of or in that territory having power to tax other than or in addition to the United Kingdom or any political sub-division or authority of or in the United Kingdom, the Company and each Guarantor will (unless the Trustee otherwise agrees) give to the Trustee an undertaking in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 8 with the substitution for, or, where applicable, the addition to, the references in that Condition to the United Kingdom of references to that other or additional territory or political sub-division or authority to the taxing
jurisdiction of which the Company and/or the relevant Guarantor (as the case may be) has become so subject and in such event these presents will be read accordingly.
6. FURTHER BONDS
6.1 Liberty to create
The Company may from time to time without the consent of the Bondholders or Couponholders create and issue further bonds or notes or similar securities, in bearer or registered form, ranking pari passu with the Original Bonds and either having the same terms and conditions as the Original Bonds in all respects (or in all respects except for the amount of the first payment of interest thereon) or upon such terms and conditions as to interest, conversion, premium, redemption and otherwise as the Directors of the Company may at the time of issue thereof determine. Any such further bonds having the same terms and conditions as the Original Bonds in all respects or which after the first payment of interest will have the same such terms and conditions shall (if applicable, after such first payment of interest) be consolidated and form a single series with the Original Bonds and any Further Bonds forming a single series with the Original Bonds.
6.2 Means of constitution
Any Further Bonds created and issued pursuant to Clause 6.1 so as to form either immediately or after the first payment of interest a single series with the Original Bonds or Further Bonds of any series shall be constituted by a deed supplemental to these presents and any other further bonds, notes or similar securities created and issued pursuant to Clause 6.1 may, with the consent of the Trustee, be so constituted. The Company and each Guarantor shall prior to the issue of Further Bonds execute and deliver to the Trustee a deed supplemental to these presents (if applicable duly stamped or denoted) and containing a covenant by the Company in the form mutatis mutandis of Clause 2.3, and a guarantee by each Guarantor in the form mutatis mutandis of Clause 3, in relation to the principal amount of and interest in respect of such Further Bonds and such other provisions (corresponding to any of the provisions contained in these presents) as the Trustee shall require.
6.3 Noting of supplemental deeds
A memorandum of every such supplemental deed shall be endorsed by the Trustee on this Master Trust Deed and by the Company and each Guarantor on each duplicate of this Master Trust Deed.
6.4 Notice of further issues Whenever it is proposed to create and issue any Further Bonds, the Company shall give to the Trustee not less than seven days' notice in writing of its intention to do so, stating the amount of Further Bonds proposed to be created and issued.
6.5 Separate series
Any Further Bonds not forming a single series with the Original Bonds or Further Bonds of any series shall form a separate series and accordingly, unless for any purpose the Trustee in its absolute discretion shall otherwise determine, the provisions of Clauses 1.1 (to the extent applicable), 2.4, 2.5, 2.6, 4.3, 4.4, 4.5, 5 and 6.2 and of Clauses 7 to 23 (inclusive) and Schedule 5 shall apply (if at all) mutatis mutandis separately and independently to the Bonds of each series and shall be construed accordingly.
7. APPLICATION OF MONEYS RECEIVED BY TRUSTEE
7.1 Declaration of trust
All moneys received by the Trustee under or pursuant to these presents will, regardless of any appropriation of all or part of them by the Company or, in respect of amounts received from a Guarantor, the relevant Guarantor, be held by the Trustee upon trust to apply them (subject to Clause 7.2):
(a) first, in payment or satisfaction of all costs, charges, expenses and liabilities properly incurred in or about the exercise of powers conferred on the Trustee by these presents or otherwise in relation to these presents and payments made by the Trustee under any of the provisions contained in these presents and of all remuneration payable to the Trustee under these presents with interest thereon (as provided in Clause 10.4) and in payment or satisfaction of all amounts payable pursuant to these presents to any attorney, manager, agent, delegate or other person appointed by or under these presents;
(b) secondly, in payment of any principal and interest and all other sums owing in respect of the Bonds and the Coupons pari passu and rateably; and
(c) thirdly, in payment of the balance (if any) to the Company for itself or, in respect of amounts received from a Guarantor, the relevant Guarantor for itself.
Without prejudice to this Clause 7.1, if the Trustee holds any moneys which represent principal or interest or other sums in respect of Bonds or Coupons which have become void or in respect of which claims have become prescribed under Condition 9, the Trustee will hold such moneys upon the above trusts.
7.2 Accumulation
If the amount of the moneys at any time available for payment in respect of the Bonds under Clause 7.1 is less than 10 per cent. of the principal amount of the Bonds then outstanding, the Trustee may, at its discretion, invest such moneys in accordance with the provisions of Clause 7.3. The Trustee may retain such investments and accumulate the resulting income until the investments and the accumulations, together with any other funds for the time being under the control of the Trustee and available for such payment, amount to at least 10 per cent. of the principal amount of the Bonds then outstanding and then such investments, accumulations and funds (after deduction of any applicable
taxes or provisions made therefor) will be applied as specified in Clause 7.1.
7.3 Investment
Any moneys which under the trusts herein contained ought to or may be invested by the Trustee may be invested in the name or under the control of the Trustee in any of the investments for the time being authorised by English law for the investment by trustees of trust moneys or in any other investments, whether similar to the aforesaid or not, which may be selected by the Trustee or by placing the same on deposit in the name or under the control of the Trustee with such bank or other financial institution as the Trustee may, in its absolute discretion, think fit and the Trustee may at any time vary or transpose any of such investments for or into other such investments and shall not be responsible for any loss occasioned thereby whether by depreciation in value or otherwise.
8. COVENANTS TO COMPLY WITH PROVISIONS
8.1 Compliance with these presents
Each of them the Company and the Guarantors hereby covenants with the Trustee that it will comply with and perform and observe all the provisions of these presents which are expressed to be binding on it (including those which may subsequently be determined to be illegal, invalid or unenforceable for any reason). The Trustee shall be entitled to enforce the obligations of the Company and each Guarantor under these presents.
8.2 When Trustee required to act
The Trustee is hereby authorised and it is declared that the Trustee shall be entitled to assume without enquiry (in the absence of express written notice to the Trustee from the Company or a Guarantor, as the case may be, to the contrary) that the Company and the Guarantors are duly performing and observing all covenants and provisions contained in these presents and on their respective parts to be performed and observed. Notwithstanding knowledge by or notice to the Trustee of any breach of any such covenant or provision it shall be in the discretion of the Trustee whether or not to take any action or proceedings to enforce the performance thereof and the Trustee shall not be bound to enforce the same or any of the covenants or provisions of these presents unless and until in any of such cases (but subject to Condition 10) the Trustee is required to do so by an Extraordinary Resolution or in writing by the holders of not less than one-quarter part in principal amount of the Bonds for the time being outstanding, and then only if the Trustee shall be indemnified to its satisfaction against all actions, proceedings, costs, claims and demands to which it may render itself liable and all costs, charges, damages and expenses which it may incur by so doing. Only the Trustee may enforce the provisions of these presents. No Bondholder or Couponholder shall be entitled to proceed directly against the Company unless the Trustee having become bound as aforesaid to take proceedings fails so to do within a reasonable period and such failure shall be continuing.
9. COVENANTS
9.1 So long as any Bond is outstanding, the Company will and each Guarantor will procure that the Company will:
(a) Carry on and conduct its affairs in an efficient manner and keep books of account; at all times carry on and conduct its affairs, and procure that each of the Subsidiaries carries on and conducts its affairs, in a proper and efficient manner and keep, and procure that each of the Subsidiaries keeps, proper books of account and, at any time after the occurrence of an Event of Default or a Potential Event of Default or if the Trustee has reasonable grounds to believe that any such event has occurred, so far as permitted by applicable law, allow, and procure that each of the Subsidiaries will allow, the Trustee and anyone appointed by it to whom the Company and/or the relevant Subsidiary has no reasonable objection access to the books of account of the Company and/or the relevant Subsidiary respectively at all reasonable times during normal business hours;
(b) Notice of security interests: notify the Trustee in writing immediately upon becoming aware that the provisions of Condition 3 shall have become applicable by reason of any encumbrance or security interest referred to therein being created or being permitted to subsist or arising;
(c) Notice of Event of Default: notify the Trustee in writing immediately upon becoming aware of the occurrence of any Event of Default or Potential Event of Default;
(d) Information: so far as permitted by applicable law, give to the Trustee such information and assistance as it requires to carry out the trusts of these presents;
(e) Financial statements etc.: send to the Trustee two copies or translations, in each case in the English language, of:
(i) all accounts, financial statements and reports for or in respect of any annual, half-yearly or other period in respect of which any account, financial statement or report is prepared by the Company for issue to its shareholders, together with any report of the Auditors thereon, as soon as practicable, and in any event within six months, after the last day of such period;
(ii) all notices, statements, circulars and other documents issued, sent or given to holders of the shares or of any other securities of the Company (other than the Bonds) or of any of the Subsidiaries, and which, in the opinion of the Trustee, have a material bearing on the interests of the Bondholders, when such documents are issued, sent or given to such holders; and
(iii) all notices, statements, circulars and other documents issued, sent or given to Bondholders when such documents are issued, sent or given to Bondholders and prior thereto, in the case of any such document addressed to Bondholders, send to the Trustee two copies of the form of such document at least 48 hours prior to publication,
and so that:
(a) if and to the extent that any account, financial statement or report referred to in paragraph (i) of this Clause 9.1(e) shall not be prepared or adjusted on a basis consistent with that used for the relevant preceding period, that fact shall be stated in such account, financial statement or report (as the case may be);
(b) any document referred to in paragraph (iii) in this Clause 9.1(e) addressed to Bondholders shall be issued, sent or given in a form previously approved in writing by the Trustee (such approval, unless so expressed, not to constitute approval for the purposes of section 57 of the Financial Services Act 1986 of any such notice which is an investment advertisement (as therein defined)); and
(c) any notice, statement, circular and other document issued, sent or given to Bondholders shall be so issued, sent or given in accordance with Condition 14;
(f) Certificates of Directors: send to the Trustee, within ten days after a request by the Trustee therefor and also (without the necessity for any such demand) promptly or in any event within 14 days of its annual audited financial statements being issued to its shareholders, a certificate signed by two of its Directors certifying to the effect that, having made all reasonable enquiries, in the opinion of the persons so certifying as at a date (the "Certification Date"), being not more than five days before the date of the certificate, no Event of Default or Potential Event of Default had occurred since the date of this Master Trust Deed or, if later, the Certification Date of the last such certificate (if any) and, if such an event had occurred, giving details of it;
(g) Reports of Auditors: procure that the Auditors furnish to the Trustee such reports and information as the Trustee may request in connection with any calculation or matter arising under these presents;
(h) Further acts: so far as permitted by applicable law, do all such further things as may be necessary in the opinion of the Trustee to give effect to these presents and to enable the Trustee to carry out the trusts of these presents;
(i) Notice of late payment: forthwith after a request by the Trustee give notice to the Bondholders of any unconditional
payment to the Trustee or the Principal Paying Agent of any sum due in respect of the Bonds or Coupons made after the due date for such payment;
(j) Listing of Bonds: use all reasonable endeavours to maintain at its expense a listing or quotation for the Bonds on the London Stock Exchange and/or on any other stock exchange or securities market on which the Bonds shall for the time being be listed or quoted, provided that if, notwithstanding such endeavours, it is unable to do so or if the terms and conditions subject to which such listing or quotation is maintained are agreed by the Trustee in writing to be unduly onerous (whether by reason of expense or otherwise) and the Trustee is satisfied that the interests of the Bondholders would not be thereby materially prejudiced, the Company will instead use all reasonable endeavours to obtain and maintain at its expense a listing or quotation for the Bonds on such other stock exchange or securities market as it may (with the prior written approval of the Trustee) decide and will promptly give notice (in a form previously approved in writing by the Trustee) to the Bondholders of any delisting or listing or grant or loss of quotation for the Bonds occurring hereafter (other than the initial listing on the London Stock Exchange);
(k) Change in Agents: give not less than 14 days' prior notice to the Bondholders of any appointment or resignation or removal of any Agent or of any change by any Agent of its specified office, in each case occurring after the date of this Master Trust Deed, and not make any such appointment or removal without the prior written approval of the Trustee;
(l) Bonds held by the Company etc.: send to the Trustee as soon as practicable after being so requested by the Trustee a certificate signed by two Directors of the Company setting out the total number of Bonds which, at the date of such certificate, were held by or on behalf of the Company and each of its Subsidiaries respectively and which had not been cancelled;
(m) Early redemption: give prior written notice to the Trustee of any proposed redemption pursuant to Condition 6(B) or (C) and, if it gives notice to Bondholders of its intention to redeem any Bonds pursuant to Condition 6(B), make selections by lot (if appropriate) and redeem Bonds accordingly;
(n) Agency Agreement: comply with and perform all its obligations under the Agency Agreement, use all reasonable endeavours to procure that each of the Agents complies with and performs its obligations thereunder, not take any steps to prevent compliance by the Agent in accordance with the terms of the Agency Agreement and not amend or modify the Agency Agreement without the prior written consent of the Trustee;
(o) Availability of information: make available for inspection at the specified offices of the Agents copies of the accounts, financial statements and reports referred to in Clause 9.1(d) as from the date of issue thereof to the Company's shareholders;
(p) Clearstream, Luxembourg and Euroclear: use all reasonable endeavours to provide assistance to Clearstream, Luxembourg and/or Euroclear (as the case may be) in the issuance of any certificate or other document requested by the Trustee under Clause 11(q) as soon as practicable after such request;
(q) Filings: duly and punctually comply with or procure that there is complied with all filing, reporting and similar requirements required in accordance with applicable English law and regulations from time to time relating in any manner whatsoever to the Bonds, and deliver to the Trustee two copies of all orders, directions and notices given or made to the Company by the London Stock Exchange and any other stock exchange or securities market on which the Bonds shall for the time being be listed or quoted (other than of a purely procedural, routine or technical nature) together, if applicable, with English language translations thereof;
(r) Principal Subsidiaries: give to the Trustee within 14 days of its annual audited financial statements being issued to its shareholders and also within 14 days of a request by the Trustee, either a certificate by the Auditors listing the Principal Subsidiaries which, as at the last day of the latest completed financial year of the Company or as at the date specified in such request, were the consolidated Principal Subsidiaries or, if the Company has no such Principal Subsidiaries, a certificate to that effect signed by two Directors of the Company.
9.2 Covenants by the Guarantors
Each Guarantor hereby covenants with the Trustee in the terms of
Clauses 9.1(a), (b), (c), (d), (e), (f), (g), (h), (k), (l), (n), (o),
(p), (q) and (r) as if references to the Company therein were
references to such Guarantor. So long as any Bond is outstanding NEDL
will send to the Trustee a certificate of NEDL signed by two of its
Directors:
(a) specifying details of any modification to the terms and conditions of the Distribution Licence, such certificate to be provided promptly upon any such modification being made; and
(b) specifying any higher figure determined by the Gas and Electricity Markets Authority as is mentioned in Condition 10, such certificate to be provided within five days of the Gas and Electricity Markets Authority determining such figure by notice in writing to the Secretary of State for Trade and Industry (or any successor) and NEDL.
10. REMUMERATION AND INDEMNIFICATION OF TRUSTEE
10.1 Normal remuneration
So long as any Bond is outstanding the Company (failing which the
Guarantors) will pay to the Trustee by way of remuneration for its
services as Trustee such sum as may from time to time be agreed between
them. Such remuneration will accrue from day to day from the date of
this Trust Deed until the trusts of these presents shall be finally
wound up and shall be payable on such dates as shall be agreed between
the Company and the Trustee. Upon the issue of any Further Bonds, the
rate of remuneration in force immediately prior thereto shall be
increased by such amount, and as from such date, as shall be agreed
between the Company and the Trustee.
10.2 Extra remuneration
At any time after the occurrence of an Event of Default or a Potential
Event of Default or if the Trustee finds it expedient in the interests
of Bondholders or necessary, or if the Trustee is requested by the
Company or either Guarantor to undertake duties which the Trustee and
the Company or the Guarantor (as the case may be) agree to be of an
exceptional nature or otherwise outside the scope of the normal duties
of the Trustee under these presents, the Company (failing which the
Guarantors) will pay such additional remuneration as may be agreed
between the Company and the Trustee or, failing agreement as to any of
the matters in this Clause 10.2 (or as to such sums referred to in
Clause 10.1), as determined by a merchant or investment bank in London
of international repute selected by the Trustee and approved by the
Company or, failing such approval, nominated on the application by the
Trustee by the President for the time being of The Law Society of
England and Wales. In making its determination such merchant or
investment bank shall act as an expert and not as an arbitrator and its
determination of such matter shall, in the absence of manifest error,
be conclusive and binding on the Company, the Guarantors, the Trustee,
the Bondholders and the Couponholders. The expenses involved in
appointing such merchant or investment bank and the fees and expenses
of the merchant or investment bank shall be paid by the Company
(failing which by the Guarantors).
10.3 Expenses
The Company (failing which by the Guarantors) will also pay or
discharge on a full indemnity basis (in priority to any payment to the
Bondholders and the Couponholders) all costs, charges, liabilities and
expenses properly incurred by the Trustee in relation to the
preparation and execution of these presents and the carrying out of the
trusts of these presents and the exercise of the powers, authorities
and discretions vested in the Trustee by or pursuant to these presents,
including, but not limited to, legal and travelling expenses and any
stamp, issue, registration, documentary or other taxes or duties paid
by the Trustee in connection with any legal proceedings brought or
contemplated by the Trustee against the Company or either Guarantor for
enforcing any obligation under these presents.
10.4 Payment of expenses
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All such costs, charges, liabilities and expenses incurred by the
Trustee and payments made referred to in Clause 10 will be payable or
reimbursable by the Company (failing which the Guarantors) on a full
indemnity basis within 14 days of demand by the Trustee and:
(i) in the case of payments made by the Trustee prior to such
demand will carry interest from the date on which the demand
is made at the rate of 2 per cent. per annum over the base
rate for the time being of Barclays Bank PLC; and
(ii) in all other cases will carry interest at such rate from 30
days after the date on which the demand is made or where the
demand properly specifies that payment is to be made on an
earlier date from such earlier date.
10.5 Indemnity
The Company (failing which the Guarantors) will indemnify the Trustee
(in priority to any payment to the Bondholders and the Couponholders)
in respect of all liabilities and expenses properly incurred by the
Trustee in the carrying out of the trusts of these presents or by
anyone appointed by the Trustee or to whom any of the functions of the
Trustee may be delegated by the Trustee in such carrying out of the
trusts of these presents and against any loss, liability, cost, claim,
action, demand or expense (including, but not limited to, all costs,
charges and expenses paid or incurred in disputing or defending any of
the foregoing) which the Trustee or any such person may properly incur
or which may be made against the Trustee or any such person, arising
out of or in relation to or in connection with the appointment of the
Trustee or any such person and any thing done or omitted by the Trustee
in such carrying out of the trusts of these presents or by any such
person under or pursuant to such delegation, provided that such
indemnity shall not extend to any such loss, liability, cost, claim,
action, demand or expense incurred or suffered by any agent or delegate
appointed by the Trustee in the event of negligence or willful default
of such agent or delegate. The Trustee may retain and pay out of any
moneys in its hands arising from the carrying out of the trusts of, or
otherwise trusts under, these presents all sums necessary to effect
such indemnity and also the remuneration of the Trustee as herein
before provided.
10.6 Value added tax
The Company (failing which the Guarantors) shall pay to the Trustee (in
priority to any payment to the Bondholders and the Couponholders) an
amount equal to any value added tax or similar tax chargeable in
respect of any payment to be made to the Trustee under these presents.
10.7 Provisions continuing
The provisions of Clauses 10.3 to 10.6 (inclusive) will continue in
full force and effect in relation to the Trustee even if it may have
ceased to be Trustee.
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10.8 Apportionment
The Trustee shall be entitled in its absolute discretion to determine
in respect of which series of Bonds any costs, charges, liabilities and
expenses incurred under or pursuant to these presents have been
incurred or to allocate any such costs, charges, liabilities and
expenses between the Original Bonds and any Further Bonds of any
series.
11. PROVISIONS SUPPLEMENTAL TO TRUSTEE ACT 1925
By way of supplement to the Trustee Act 1925 it is expressly declared
in the terms of the following provisions of this Clause 11:
(a) Advice
The Trustee may in carrying out the trusts of these presents
act on the opinion or advice of, or information obtained from,
any accountant, lawyer, valuer, surveyor, broker, auctioneer
or other expert, whether obtained by the Company, either
Guarantor or the Trustee, and will not be responsible to
anyone for any loss occasioned by so acting. Any such opinion,
advice or information may be sent or obtained by letter,
telephone, telex or facsimile or cable transmission and the
Trustee will not be liable to anyone for acting in good faith
on any opinion, advice or information purporting to be
conveyed by such means even if it contains some error or is
not authentic.
(b) Notification of execution
The Trustee need not notify anyone of the execution of these
presents.
(c) Resolutions of Bondholders
The Trustee will not be responsible for having acted in good
faith upon a resolution purporting to have been passed at a
meeting of Bondholders (in respect of which minutes have been
made and signed) even though it may later be found that there
was a defect in the constitution of such meeting or in the
procedures thereat or in the signing of such resolution or
that such resolution was not valid or binding upon the
Bondholders or Couponholders for any reason whatsoever.
(d) Certificate signed by Directors
The Trustee may call for and may accept as sufficient evidence
of any fact or matter or the expediency of any act a
certificate signed by two Directors of the Company or of
either Guarantor certifying to the effect that, having made
all reasonable enquiries, in the opinion of the persons so
certifying such fact or matter is as stated in the certificate
or such act is expedient and in any such case and in the case
of any certificate given under Clause 9.1(f) or 15.2(a)(iv)
the Trustee may rely absolutely on such certificate and need
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not call for any further evidence and will not be responsible
for any loss that may be occasioned by it not calling for
further evidence or by it acting on any such certificate.
(e) Deposit of documents
The Trustee may deposit these presents and any other documents
in any part of the world with any banker or banking company or
entity the business of which includes undertaking the safe
custody of documents or with any lawyer or firm of lawyers
believed by it to be of good repute, may at its discretion
make any such arrangements as it thinks fit for allowing the
Company or the Guarantors access to, or its solicitors or
auditors access to or possession of, such documents and the
Trustee shall not be responsible for or required to insure
against loss, liability, claim, action, demand or expense
incurred in connection with any such deposit, access or
provision and may pay all sums to be paid on account of or in
respect of any such deposit, provided that, unless in the
opinion of the Trustee it is required in connection with the
enforcement of any obligation of the Company or a Guarantor
under these presents or otherwise in connection with the
carrying out of the trusts of these presents or unless it
comprises the holding or placing of such documents in the
United Kingdom, the Trustee may not take any such action if a
liability to stamp duty or other duties or taxes would thereby
arise.
(f) Discretion of Trustee
Save as otherwise expressly provided in these presents, the
Trustee will have absolute and uncontrolled discretion as to
the exercise of the powers, authorities and discretions
conferred on, and the functions of, the Trustee under these
presents, will not be responsible to anyone for any loss,
liability, cost, claim, action, demand, expenses or
inconvenience which may result from their exercise or
non-exercise and any such exercise or non-exercise shall, as
between the Trustee and the Bondholders and the Couponholders,
be conclusive and binding on the Bondholders and the
Couponholders.
(g) Agents
The Trustee may, in the carrying out of the trusts of these
presents, instead of acting personally, employ and pay an
agent believed by it to be of good repute, whether or not a
lawyer or other professional person, to transact or conduct,
or concur in transacting or conducting, any business and to do
or concur in doing any acts required to be done by the Trustee
in carrying out of the trusts of these presents (including the
receipt and payment of money) and any Trustee being a lawyer,
accountant, broker or other person engaged in any profession
or business shall be entitled to charge and be paid all usual
professional and other charges for business transacted and
acts done by him or his firm in connection with the trusts of
these presents (including matters which ought to or should
have been attended to in person by a trustee not being engaged
in any trade or profession) and also his reasonable charges in
addition to disbursements for all other work and business done
and all time spent by him or his firm in connection with
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matters arising in connection with these presents. The Trustee
shall not be responsible to anyone for any misconduct or
omission or default on the part of any such agent so employed
by it or be bound to supervise the proceedings or acts of any
such agent.
(h) Delegation
The Trustee may, in the execution and exercise of all or any
of the trusts, powers, authorities and discretions vested in
it by these presents and the Conditions, act by responsible
officers or a responsible officer for the time being of the
Trustee, and the Trustee may also whenever it thinks it
expedient in the interests of the Bondholders, whether by
power of attorney or otherwise, and after such consultation
(if any) with the Company and the Guarantors as the Trustee
may consider to be practicable, delegate to any person or
fluctuating body of persons all or any of the trusts, powers,
authorities and discretions vested in it by these presents and
the Conditions and any such delegation may be made upon such
terms and conditions and subject to such regulations
(including power to sub-delegate) as the Trustee may think fit
and provided that the Trustee shall have exercised reasonable
care in the selection of such delegate, it shall not be bound
to supervise the proceedings and shall not in any way or to
any extent be responsible for any loss incurred by any
misconduct or default on the part of such delegate or
sub-delegate. The Trustee shall give prompt notice to the
Company and the Guarantors of the appointment (and termination
thereof) of any delegate as aforesaid and shall procure that
any delegate shall also give prompt notice to the Company and
the Guarantors of any sub-delegate. Notwithstanding the above,
the Trustee may not delegate the right to give written notice
to the Company that the Bonds are immediately due and
repayable unless prior to such delegation the Trustee provides
to the Company and the Guarantors confirmation in writing that
the Trustee has been advised by its legal advisers that it
should delegate the right (with or without any other rights,
trusts, powers, authorities and discretions) to another person
or fluctuating body of persons because of a conflict of
interest or possible conflict of interest and/or other similar
circumstances which the Trustee might face, or be subjected
to, as the trustee of these presents if it were not to
delegate that right.
(i) Forged Bonds
The Trustee will not be liable to the Company, either
Guarantor or any Bondholder or Couponholder by reason of
having accepted as valid or not having rejected any
Certificate, Coupon or other document relating to any Bond
purporting to be such and later found to be forged or not
authentic.
(j) Confidentiality
Unless ordered to do so by a court of competent jurisdiction,
the Trustee shall not be required to disclose to any
Bondholder or Couponholder any confidential, financial, price
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sensitive or other information made available to the Trustee
by the Company or either Guarantor or any of the Subsidiaries
and no Bondholder or Couponholder shall be entitled to take
any action to obtain from the Trustee any such information
(and for this purpose any unpublished accounts and other
unpublished financial information of or concerning the
Company, either Guarantor or any of the Subsidiaries shall be
considered to be confidential).
(k) Determinations conclusive
As between itself and the Bondholders and Couponholders, the
Trustee shall have power to determine all questions and doubts
arising in relation to any of the provisions of these
presents. Every such determination, whether made upon such a
question actually raised or implied in the acts or proceedings
of the Trustee, shall be conclusive in the absence of manifest
error and shall bind the Trustee, the Bondholders, the
Couponholders and all other persons interested under these
presents.
(1) Currency conversion
Where it is necessary or desirable to convert any sum from one
currency to another, it shall (unless otherwise provided under
these presents or required by law) be converted at such rate
or rates, in accordance with such method and as at such date
as may be specified by the Trustee but having regard to
current rates of exchange, if available. Any rate, method and
date so specified will be binding on the Company, the
Guarantors, the Bondholders and the Couponholders.
(m) Events of Default and other events
The Trustee may determine whether or not a default in the
performance or observance by the Company or either Guarantor
of any of their respective obligations is in its opinion
capable of remedy and/or whether or not any event is in its
opinion materially prejudicial to the interests of the
Bondholders or has a material adverse effect on the Company's
or either Guarantor's ability to perform or to comply with any
of its obligations under these presents. Any such
determination will be conclusive and binding upon the Company,
the Guarantors, the Bondholders and the Couponholders.
Notwithstanding the foregoing provisions of this Clause
11.1(m) or any other provisions of these presents, the Trustee
shall not be bound to take any steps to ascertain whether or
not any Event of Default or Potential Event of Default,
Negative Rating Event, Restructuring Event or any event which
could lead to the occurrence of or could constitute a
Restructuring Event has occurred and, until it shall have
actual knowledge or express notice pursuant to these presents
to the contrary, the Trustee shall be entitled to assume that
no Event of Default, Potential Event of Default, Negative
Rating Event, Restructuring Event or any other such event has
occurred and that each of the Company and each Guarantor is
observing and performing all its obligations under these
presents.
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(n) Payment for and delivery of Bonds
The Trustee will not be responsible for the receipt or application by the Company of the proceeds of the issue of the Bonds, the exchange of interests in the Global Bond for individual Bonds or the delivery of individual Bonds to the persons entitled to them.
(o) Bonds held by the Company etc.
In the absence of knowledge or express notice to the contrary, the Trustee may assume without enquiry that no Bonds or Coupons are for the time being held by or on behalf of the Company, either Guarantor or any of the Subsidiaries and that none of such companies has any beneficial interest therein.
(p) Interests of Bondholders
In connection with the carrying out of the trusts of these presents (including, but not limited to, those in relation to any proposed modification, waiver or authorisation of any breach or proposed breach of any of the Conditions or any of the provisions of these presents or any proposed substitution in accordance with Clause 15), the Trustee shall have regard to the interests of the Bondholders as a class and in particular, but without prejudice to the generality of the foregoing, shall not have regard to the consequences of such exercise for individual Bondholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub- division thereof or otherwise to the tax consequences thereof and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Company, either Guarantor, the Trustee or any other person any indemnification or payment of or in respect of any tax arising in consequence of any such exercise upon individual Bondholders or Couponholders except to the extent provided for in Condition 8 and/or in any undertaking given in addition thereto or in substitution therefor pursuant to these presents.
(q) Clearstream, Luxembourg and Euroclear
The Trustee may call for any certificate or other document to be issued by Clearstream, Luxembourg or Euroclear as to the principal amount of Bonds represented by a Global Bond standing to the account of any person. Any such certificate or other document shall be conclusive and binding for all purposes. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any certificate or other document to such effect purporting to be issued by Clearstream, Luxembourg or Euroclear and subsequently found to be forged or not authentic.
12. TRUSTEE LIABLE FOR BREACH OF TRUST
Nothing in these presents shall, in any case in which the Trustee has failed to show the degree of care and diligence required of it as Trustee having regard to the provisions of these presents conferring on the Trustee any powers, authorities or discretions, exempt the Trustee from, or indemnify it against, any liability which by virtue of any rule of law would otherwise attach to it in respect of any breach of trust of which it may be guilty.
13. WAIVER, PROOF OF DEFAULT, CONSENTS AND TRUSTEE'S POWER TO APPLY TO COURT
13.1 Waiver
The Trustee may, without the consent of the Bondholders or
Couponholders and without prejudice to its rights in respect of any
subsequent breach, Potential Event of Default or Event of Default, from
time to time and at any time, if in its opinion the interests of the
Bondholders will not be materially prejudiced thereby, waive or
authorise, on such terms and conditions as seem expedient to it
(including with retrospective effect) any breach or proposed breach by
the Company or either Guarantor of any of the provisions of these
presents or determine that any Event of Default or Potential Event of
Default will not be treated as such, provided that the Trustee will not
exercise any of the powers conferred on it by this Clause 13.1 in
contravention of any express direction given by an Extraordinary
Resolution or by a request made pursuant to Condition 11, but no such
direction or request will affect any previous waiver, authorisation or
determination. Any such waiver, authorisation or determination will be
binding on the Bondholders and the Couponholders and, if, but only if,
the Trustee so requires, will be notified to the Bondholders in
accordance with Condition 14 by the Company or the relevant Guarantor
as soon as practicable.
13.2 Proof of default
If it is proved that as regards any specified Bond or Coupon the
Company or a Guarantor has made default in paying any sum due to the
relevant Bondholder or Couponholder, such proof will (unless the
contrary be proved) be sufficient evidence that the same default has
been made as regards all other Bonds or (as the case may be) Coupons
which are then payable.
13.3 Consents
Where under these presents provision is made for the giving of any
consent or the exercise of any discretion by the Trustee, any such
consent may be given and any such discretion may be exercised on such
terms and conditions (if any) as the Trustee may think fit and may be
given or exercised with retrospective effect. The Company and each
Guarantor, as applicable, shall observe and perform any such terms and
conditions and the Trustee may at any time waive or agree a variation
in such terms and conditions.
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13.4 Trustees' power to apply to Court
The Trustee may at any time apply to the Court for an order that the
powers and the carrying out of the trusts of these presents be
exercised or carried into execution under the direction of the Court
and for any other order in relation to the execution and administration
of the powers and the carrying out of the trusts of these presents as
the Trustee shall deem expedient and it may assent to or approve any
application to the Court made at the instance of any of the Bondholders
and shall be indemnified by the Company or, failing which, the
Guarantors against all the costs, charges and expenses incurred by and
in relation to any such application or proceedings.
14. TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
Neither the Trustee nor any director, officer or employee of a
corporation acting as a Trustee, whether acting for itself or in any
other capacity, will be precluded in any way from becoming the owner
of, or acquiring any interest in, or holding, or disposing of, any Bond
or Coupon or any shares or securities of the Company, either Guarantor,
any Subsidiary or any associated companies thereof with the same rights
as it would have had if the Trustee or such person were not the Trustee
or connected with the Trustee or from entering into or being interested
in any contracts or transactions or arrangements with the Company,
either Guarantor, any Subsidiary or any associated companies thereof or
from acting on, or as depositary or agent for, any committee or body of
holders of any securities of the Company, either Guarantor, any
Subsidiary or any associated companies thereof and the Trustee will be
entitled to retain, and will not be liable to anyone to account for,
any profit, share of brokerage, commission, remuneration or other
benefit made or received in connection therewith.
15. MODIIFICATION AND SUBSTITUTION
15.1 Modification
The Trustee may agree, without the consent of the Bondholders or the
Couponholders, to any modification to these presents which in its
opinion is of a formal, minor or technical nature or which is made to
correct a manifest error. The Trustee may also so agree to any
modification to these presents which in its opinion is not materially
prejudicial to the interests of the Bondholders, but so that such power
shall not extend to any such modification as is mentioned in the
proviso to paragraph 19 of Schedule 5. Any such modification as is
permitted by this Clause 15.1 shall be binding upon the Bondholders and
the Couponholders and, unless the Trustee otherwise agrees, will be
notified by the Company to the Bondholders in accordance with Condition
14 as soon as practicable.
15.2 Substitution
(a) The Trustee may, without the consent of the Bondholders or the
Couponholders, but so as to bind the Bondholders and the Couponholders,
agree with the Company and the Guarantors to the substitution of NEDL
or any Subsidiary or holding company of NEDL or any subsidiary of such
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holding company (the "Substituted Obligor") in place of the Company (or
of any previous substitute under this Clause 15.2, 15.3) as the
principal debtor under these presents, provided that:
(i) the Trustee is satisfied that such substitution is not
materially prejudicial to the interests of the Bondholders;
(ii) a trust deed is executed or some other form of undertaking
is given by the Substituted Obligor and each Guarantor
(other than a Guarantor which is the Substituted Obligor) to
the Trustee, in a form and manner satisfactory to the
Trustee, agreeing to be bound or, as the case may be, to
continue to be bound by the provisions of these presents
binding on the Company or, as the case may be, the
Guarantors with any consequential amendments which the
Trustee may deem appropriate as fully as if the Substituted
Obligor had been named in these presents as the principal
debtor in place of the Company (or of any previous
substitute under this Clause 15.2) and the guarantee of the
Guarantors in these presents had been given accordingly
(other than by a Guarantor which is the Substituted Obligor
or by NEDL if NEDL has transferred the Distribution Licence
to the Substituted Obligor);
(iii) where the Substituted Obligor is subject generally to the
taxing jurisdiction of any territory or any political
sub-division or any authority of or in that territory having
power to tax (for the purpose of this Clause 15.2, the
"Substituted Territory") other than or in addition to any
territory to the taxing jurisdiction of which (or to any
such political sub-division or authority of or in which) the
Company (or any previous substitute under this Clause 15.2)
is subject generally (for the purpose of this Clause 15.2,
the "Existing Territory"), the Substituted Obligor will
(unless the Trustee otherwise agrees) give to the Trustee an
undertaking in form and manner satisfactory to the Trustee
in terms corresponding to the terms of Condition 8 with the
substitution for or, where applicable, the addition to, the
references in that Condition to the Existing Territory of
references to the Substituted Territory and in such event
these presents will be read accordingly;
(iv) if any two of the directors or other officers acceptable to
the Trustee of the Substituted Obligor certify to the Trustee
to the effect that, having made all reasonable enquiries, in
the opinion of the persons so certifying the Substituted
Obligor will be solvent immediately after such substitution,
the Trustee may rely absolutely on such certificate and need
not have regard to the financial condition, profits or
prospects of the Substituted Obligor or compare them with
those of the Company (or any previous substitute under this
Clause 15.2) or call for any further evidence and the
provisions of Clause 11(d) shall apply; and
(v) the Company, the Guarantors (and any previous substitute under
Clause 15.3) and the Substituted Obligor (and any previous
substitute under this Clause 15.2) comply with such other
requirements as the Trustee may direct in the interests of the
Bondholders.
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In the case of such substitution, the Trustee may agree, without the
consent of the Bondholders or the Couponholders, to a change of law
governing these presents provided that such change would not, in the
opinion of the Trustee, be materially prejudicial to the interests of
the Bondholders. Any such substitution as is permitted by this Clause
15.2 shall be binding upon the Bondholders and the Couponholders.
(b) Release of existing obligor
Any such agreement by the Trustee pursuant to this Clause 15.2 will, if
so expressed but subject to Clause 15.2(a)(v), operate to release the
Company (or any such previous substitute) from any or all of its
obligations under these presents. Not later than 14 days after the
execution of any such documents and after compliance with such
requirements, notice of the substitution will be given by the
Substituted Obligor to the Bondholders in accordance with Condition 14
as soon as practicable.
(c) Completion of substitution
Up on the execution of such documents and compliance with such
requirements, the Substituted Obligor will be deemed to be named in
these presents as the principal debtor in place of the Company (or of
any previous substitute under this Clause 15.2) and these presents will
be deemed to be modified in such manner as shall be necessary to give
effect to the substitution.
15.3 Substitution:
(a) The Trustee may, without the consent of the Bondholders or the
Couponholders, but so as to bind the Bondholders and the Couponholders,
agree with the Company and the Guarantors to the substitution of any
Subsidiary or holding company of NEDL or any subsidiary of such holding
company (the "Substituted Guarantor") in place of NEDL (or of any
previous substitute under this Clause 15.2, 15.3) as guarantor of the
obligations of the Company (or any previous substitute under Clause
15.2) under these presents guaranteed by the Guarantors (or if any
previous substitute under this Clause 15.3) under these presents,
provided that:
(i) the Trustee is satisfied that such substitution is not
materially prejudicial to the interests of the Bondholders;
(ii) the Distribution Licence is transferred to the Substituted
Guarantor;
(iii) a trust deed is executed or some other form of undertaking is
given by the Substituted Guarantor to the Trustee, in a form
and manner satisfactory to the Trustee, agreeing to be bound
by the provisions of these presents binding on the Guarantors
with any consequential amendments which the Trustee may deem
appropriate as fully as if the Substituted Guarantor had been
named in these presents as guarantor of such obligations of
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the Company (or of any previous substitute under Clause 15.2)
in place of NEDL (or of any previous substitute under this
Clause 15.3);
(iv) where the Substituted Guarantor is subject generally to the
taxing jurisdiction of any territory or any political
sub-division or any authority of or in that territory having
power to tax (for the purpose of this Clause 15.3, the
"Substituted Territory") other than or in addition to any
territory to the taxing jurisdiction of which (or to any
such political sub-division or authority of or in which)
NEDL (or any previous substitute under this Clause 15.3) is
subject generally (for the purpose of this Clause 15.3, the
"Existing Territory"), the Substituted Guarantor will
(unless the Trustee otherwise agrees) give to the Trustee an
undertaking in form and manner satisfactory to the Trustee
in terms corresponding to the terms of Condition 8 with the
substitution for or, where applicable, the addition to, the
references in that Condition to the Existing Territory of
references to the Substituted Territory and in such event
these presents will be read accordingly;
(v) if any two of the directors or other officers acceptable to
the Trustee of the Substituted Guarantor certify to the
Trustee to the effect that, having made all reasonable
enquiries, in the opinion of the persons so certifying the
Substituted Guarantor will be solvent immediately after such
substitution, the Trustee may rely absolutely on such
certificate and need not have regard to the financial
condition, profits or prospects of the Substituted Guarantor
or compare them with those of NEDL (or of any previous
substitute under this Clause 15.3) or call for any further
evidence and the provisions of Clause 11.1(d) shall apply; and
(vi) the Company (and any previous substitute under Clause 15.2),
the Guarantors and the Substituted Guarantor (and any previous
substitute under this Clause 15.3) comply with such other
requirements as the Trustee may direct in the interests of the
Bondholders.
In the case of such substitution, the Trustee may agree, without the
consent of the Bondholders or the Couponholders, to a change of law
governing these presents provided that such change would not, in the
opinion of the Trustee, be materially prejudicial to the interests of
the Bondholders. Any such substitution as is permitted by this Clause
15.3 shall be binding upon the Bondholders and the Couponholders.
(b) Release of existing obligor
Any such agreement by the Trustee pursuant to this Clause 15.3 will, if
so expressed but subject to Clause 15.3(a)(vi), operate to release NEDL
(or any such previous substitute) from any or all of its obligations
under these presents. Not later than 14 days after the execution of any
such documents and after compliance with such requirements, notice of
the substitution will be given by the Substituted Guarantor to the
Bondholders in accordance with Condition 14 as soon as practicable.
(c) Completion of substitution
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Upon the execution of such documents and compliance with such
requirements, the Substituted Guarantor will be deemed to be named in
these presents as a guarantor of the obligations aforesaid of the
Company (or of any previous substitute under Clause 15.2) in place of
NEDL (or of any previous substitute under this Clause 15.3) and these
presents will be deemed to be modified in such manner as shall be
necessary to give effect to the substitution.
16. APPOINTMENT, RETIREMENT AND REMOVAL OF TRUSTEE
16.1 Appointment
The Company will have the power of appointing a new Trustee but no
person will be so appointed unless previously approved by an
Extraordinary Resolution. A trust corporation will at all times be a
Trustee and may be the sole Trustee. Any appointment of a new Trustee
will be notified by the Company to the Bondholders and to the Agents as
soon as practicable.
16.2 Retirement and removal
Any Trustee may retire at any time on giving not less than three
months' notice in writing to the Company without giving any reason and
without being responsible for any costs occasioned by such retirement
and the Bondholders may by Extraordinary Resolution remove any Trustee
provided that the retirement or removal of any sole Trustee or sole
trust corporation will not become effective until a trust corporation
is appointed as successor Trustee. If a sole Trustee or sole trust
corporation gives notice of retirement or an Extraordinary Resolution
is passed for its removal under this Clause 16.2, it will use all
reasonable endeavours to procure that another trust corporation be
appointed as Trustee. Any replacement or retirement of a Trustee will
be notified by the Company to the Bondholders and to the Agents as soon
as practicable.
16.3 Co-Trustees
The Trustee may, notwithstanding the provisions of Clause 16.1, by
notice in writing to the Company and the Guarantors (but without the
need for the consent of the Company, the Guarantors, the Bondholders or
the Couponholders) appoint any person to act as an additional Trustee
jointly with the Trustee:
(a) if the Trustee considers such appointment to be in the
interests of the Bondholders;
(b) for the purpose of conforming with any legal requirement,
restriction or condition in any jurisdiction in which any
particular act is to be performed; or
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(c) for the purpose of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of these presents
against the Company or either Guarantor.
Subject to the provisions of these presents the Trustee may confer on
any person so appointed such functions as it thinks fit. The Trustee
may by notice in writing to the Company, the Guarantors and such person
remove any person so appointed. At the request of the Trustee, the
Company and the Guarantors will forthwith execute and do all such
documents, acts and things as may be required to perfect such
appointment or removal and the Company and each Guarantor hereby
irrevocably appoints the Trustee to be its attorney in its name and on
its behalf to do so. Any appointment or removal of any such additional
Trustee shall be notified by the Company or the Guarantors to the
Bondholders and to the Agents as soon as practicable.
16.4 Competence of a majority of Trustees
If there are more than two Trustees, the majority of such Trustees will
(provided such majority includes a trust corporation) be competent to
carry out all or any of the Trustee's functions.
17. COUPONHOLDERS
17.1 Notices
Neither the Trustee, the Company nor either Guarantor need give any
notice to the Couponholders for any purpose under these presents and
the Couponbolders will be deemed to have notice of the contents of any
notice given to the Bondholders.
17.2 Bondholders assumed to hold Coupons
Even if it has express notice to the contrary, whenever the Trustee is
required to exercise any of its functions, powers, authorities or
discretions by reference to the interests of the Bondholders, the
Trustee shall assume that each Bondholder is the holder of all Coupons
relating to each Bond of which he is the bearer.
18. COMMUNICATIONS
Any notice, confirmation, demand, certificate or other document given,
made or served, or required to be given, made or served, under these
presents shall be in the English language and shall be given, made or
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served by letter delivered personally or by facsimile transmission:
(a) in the case of the Company, to it at:
Carliol House
Market Street
Newcastle-Upon-Tyne NEl 6NE
Fax no: 0191 210 2081
Attention: The Finance Director
(b) in the case of NE, to it at:
Carliol House
Market Street
Newcastle-Upon-Tyne NEl 6NE
Fax no: 0191 210 2081
Attention: The Finance Director
(c) in the case of NEDL, to it at:
Carliol House
Market Street
Newcastle-Upon-Tyne NEl 6NE
Fax no: 0191 210 2081
Attention: The Finance Director
(d) in the case of the Trustee, to it at:
Fifth Floor
100 Wood Street
London EC2V 7EX
Fax no: 020 7606 0643
Attention: The Secretary
or, in each case, to such other address or facsimile number as shall have been notified (in accordance with this Clause 18) to the other parties.
Any such communication will take effect, in the case of delivery, at the time of delivery or, in the case of facsimile transmission, at the time of dispatch.
Any communication not by letter shall be confirmed by letter but failure to send or receive the letter of confirmation shall not invalidate the original communication.
19. POWERS IN ADDITION
The powers conferred upon the Trustee by these presents shall be in addition to any powers which may from time to time be vested in the Trustee by the general law or as a holder of any of the Bonds or Coupons.
20. SEVERABILITY
Notwithstanding that any provision of these presents may prove to be illegal or unenforceable, the remaining provisions of these presents shall continue in full force and effect.
21. EXECUTION
Each of the parties to this Master Trust Deed intends it to be a deed, and agrees to execute and deliver it as a deed. The signature or sealing of this Master Trust Deed by or on behalf of a party shall constitute an authority to the solicitors, or an agent or employee of the solicitors, acting for that party in connection with this Master Trust Deed to deliver it as a deed on behalf of that party.
22. COUNTERPARTS
These presents may be executed in counterparts, and the counterparts together shall constitute one deed.
23. GOVERNING LAW
These presents shall be governed by and construed in accordance with English law.
24. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to these presents has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these presents, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
IN WITNESS whereof this Master Trust Deed has been executed as a deed the day and year first above written.
SCHEDULE 1
PART I
FORM OF INDIVIDUAL CERTIFICATE FOR ORIGINAL BONDS 2005
On the front:
ISIN: Serial No: Cert No:
NORTHERN ELECTRIC FINANCE plc
(Incorporated with limited liability in England and Wales - No. 3070482)
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(pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005
guaranteed as to principal and interest on a joint and several basis by
NORTHERN ELECTRIC plc
(Incorporated with limited liability in England and Wales - No. 2366942)
and
NORTHERN ELECTRIC DISTRIBUTION LIMITED
(Incorporated with limited liability in England and Wales - No. 2906593)
The Bonds in respect of which this Certificate is issued are in bearer form and form part of the series designated as specified in the title (the "Bonds") of Northern Electric Finance plc (the "Issuer") constituted by a Master Trust Deed dated 16th October, 1995 between the Issuer, Northern Electric plc ("NE" and, together with Northern Electric Distribution Limited, the "Guarantors") and The Law Debenture Trust Corporation p.l.c. as the Trustee (the "Trust Deed", which expression includes all deeds supplemental to such Trust Deed). The Bonds are subject to, and have the benefit of, the Trust Deed and the Terms and Conditions (the "Conditions") set out on the reverse hereof.
The Issuer for value received hereby promises to pay to the bearer of this Certificate the principal amount of (pound)[l,000/10,000/100,000] [(One/Ten/One Hundred)] Thousand pounds sterling on 16th October, 2005 or on such earlier date as such principal amount may become payable in accordance with the Conditions and the Trust Deed together with interest thereon and any other moneys payable in respect of the Bonds in accordance with the Conditions and the Trust Deed.
The Bonds are guaranteed as to principal and interest by the Guarantors on the terms of the Trust Deed.
This Certificate shall not be valid or become obligatory for any purpose until signed on behalf of the Issuer and the Guarantor and authenticated by or on behalf of the Principal Paying Agent.
Dated
In witness whereof the Issuer and NE have caused this Certificate to be signed in facsimile on their respective behalves.
Northern Electric Finance plc Northern Electric plc
By: By:
Director Director
By: By:
Director Director
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Certificate of Authentication
This Certificate is authenticated by or on behalf of the Principal Paying Agent.
By:
Authorised Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
[NEITHER THE ISSUER NOR THE GUARANTORS HAVE BEEN OR WILL BE REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940.]
On the back:
Terms and Conditions
Details of Agents
SCHEDULE 1
PART II
FORM OF ORIGINAL GLOBAL BOND 2005
ISIN:
NORTHERN ELECTRIC FINANCE plc
(Incorporated with limited liability in England and Wales - No. 3070482)
(pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005
guaranteed as to principal and interest by
NORTHERN ELECTRIC plc
(Incorporated with limited liability in England and Wales - No. 2366942)
TEMPORARY GLOBAL BOND CERTIFICATE
The Bonds in respect of which this temporary Global Bond Certificate is issued
are in bearer form and comprise the series of Bonds designated as specified in
the title (the "Bonds") of Northern Electric Finance plc (the "Issuer")
constituted by a Master Trust Deed dated 16th October, 1995 between the Issuer,
Northern Electric plc (the "Guarantor") and The Law Debenture Trust Corporation
p.l.c. as the Trustee (the "Trust Deed", which expression includes all deeds
supplemental to such Trust Deed). The Bonds are subject to, and have the benefit
of, the Trust Deed including the Terms and Conditions set out on the reverse
hereof.
The Issuer for value received hereby promises to pay to the bearer of this Certificate the principal amount of (pound)100,000,000 (or such lesser or greater amount as is duly endorsed in the third column of Schedule A to this Certificate) on 16th October, 2005 or on such earlier date as such principal amount may become payable in accordance with the Trust Deed together with interest thereon and any other moneys payable in respect of the Bonds in accordance with the Trust Deed.
The Bonds are guaranteed as to principal and interest by the Guarantor on the terms of the Trust Deed.
This temporary Global Bond Certificate is exchangeable for individual Certificates representing Bonds in bearer form with Coupons attached. The Issuer hereby irrevocably undertakes to deliver individual Certificates representing Bonds in exchange for this temporary Global Bond Certificate on and after 26th November, 1995 (the "Exchange Date").
On or after the Exchange Date this temporary Global Bond Certificate may be exchanged in whole or in part for individual Certificates representing Bonds in an aggregate principal amount not exceeding the principal amount of this temporary Global Bond by the submission of this temporary Global Bond Certificate to the Principal Paying Agent together with a certificate from Cedel Bank, societe anonyme ("Cedel") or Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System ("Euroclear") substantially to the following effect:
CERTIFICATE OF CLEARING SYSTEM
NORTHERN ELECTRIC FINANCE plc
(pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005 (the "Bonds")
Common Code: ISIN:
This is to certify that, based solely on certificates we have received in
writing, by tested telex or by electronic transmission, from member
organisations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organisations") substantially
in the form set out in the temporary Global Bond Certificate representing Bonds
(the form of which is set out in Part II of Schedule 1 to the Master Trust Deed
constituting the Bonds) as of the date hereof [ ] principal amount of the Bonds
(i) is owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) United States persons who
acquired the Bonds through foreign branches of United States financial
institutions and who hold the Bonds through such United States financial
institutions on the date hereof (and, in either case (a) or (b), each such
United States financial institution has agreed, on its own behalf or through its
agent, that we may advise the Issuer or the Issuer's agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
l.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign
financial institutions described in (iii) above (whether or not also described
in (i) or (ii) above) have certified that they have not acquired the Bonds for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the Bonds represented by the temporary Global Bond Certificate excepted in such certificates and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisation with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceedings.
Dated: *
Yours faithfully,
[Cedel Bank, societe anonyme]
or
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels office,
as operator of the Euroclear System]
By:
*To be dated no earlier than the Exchange Date.
Any person appearing in the records maintained by Cedel or Euroclear as entitled to any interest in Bonds represented by this temporary Global Bond Certificate shall be entitled to require the exchange of this temporary Global Bond Certificate for (an) individual Certificate(s) representing such Bonds in bearer form by delivering or causing to be delivered to Cedel or Euroclear a certificate in substantially the following form (copies of which certificate will be available at the office of Cedel in Luxembourg and Euroclear in Brussels and at the specified office of each of the Paying Agents):
"CERTIFICATE OF CLEARING SYSTEM PARTICIPANT
NORTHERN ELECTRIC FINANCE plc
(pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005 (the "Bonds")
Common Code: ISIN:
To: [Cedel Bank, societe anonyme] [Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System]
This is to certify that, as of the date hereof, and except as set forth below,
the Bonds held by you for our account (i) are owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States persons that are (a) foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) United States persons who acquired the Bonds
through foreign branches of United States financial institutions and who hold
the Bonds through such United States financial institutions on the date hereof
(and, in either case (a) or (b), each such United States financial institution
hereby agrees, on its own behalf or through its agent, that you may advise the
Issuer or the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and in addition, if an owner of Bonds is a United States or foreign financial
institution described in (iii) above (whether or not also described in (i) or
(ii) above), this is to certify further that such financial institution has not
acquired the Bonds for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to that date on which you intend to submit your certificate relating to the Bonds held by you for our account in accordance with your documented procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certificate applies as of such date.
This certificate excepts and does not relate to [ ] principal amount of the Bonds in respect of which we are not able to certify and as to which we understand exchange and delivery of individual Certificates representing Bonds (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
We understand that this certificate is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding.
Dated: *
By:
[Name of person giving certificate] as, or as
agent for, the beneficial owner(s) of the
Bonds in respect of which this certificate is issued.
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* To be dated no earlier than the fifteenth day prior to the Exchange Date."
Until the exchange of this temporary Global Bond Certificate for individual Certificates representing Bonds pursuant to the foregoing provisions, no person as aforesaid shall (except as stated herein) be entitled to receive any payment by way of principal or interest in respect of the Bonds represented by this temporary Global Bond Certificate (unless, upon due presentation of this temporary Global Bond Certificate for exchange, delivery of any individual Certificate representing Bonds shall be improperly withheld or refused) or to receive (an) individual Certificate(s) representing Bonds which he would otherwise be entitled to receive.
Upon any exchange of this temporary Global Bond Certificate for individual Certificates representing Bonds the portion of the principal amount represented by this temporary Global Bond Certificate in respect of which such exchange shall be effected shall be endorsed by the Principal Paying Agent on the Schedule of exchanges for individual Certificates hereon, whereupon the
principal amount represented by this temporary Global Bond Certificate shall be reduced for all purposes by the amount of such portion.
Subject to the second preceding paragraph, no provisions of this temporary Global Bond Certificate shall alter or impair the obligation of the Issuer to pay the principal and interest in respect of the Bonds when due in accordance with the Trust Deed or the obligations of the Guarantor under the Trust Deed.
This temporary Global Bond Certificate is governed by and shall be construed in accordance with English law.
This temporary Global Bond Certificate shall not be valid or become obligatory for any purpose until signed on behalf of the Issuer and the Guarantor and authenticated by or on behalf of the Principal Paying Agent.
Dated:
In witness whereof the Issuer and the Guarantor have caused this temporary Global Bond Certificate to be signed in facsimile on their respective behalves.
Northern Electric Finance plc Northern Electric plc
By: By:
Director Director
By: By:
Director Director
|
Certificate of Authentication
This temporary Global Bond Certificate is authenticated by or on behalf of the Principal Paying Agent.
By:
Authorized Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE CODE.
[NEITHER THE ISSUER NOR THE GUARANTOR HAS BEEN OR WILL BE REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940.]
Schedule of exchanges for individual Certificates
The principal amount of the Bonds represented by this temporary Global Bond Certificate has been reduced as a result of the issue of individual Certificates representing Bonds in respect of a portion of such principal amount in exchange as follows:
Amount of decrease Principal amount of
in principal amount Bonds represented by
of Bonds represented Global Bond Notation made by or
by Global Bond Certificate following on behalf of Principal
Date of exchange Certificate such decrease Paying Agent
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Schedule of interest paid
Date of payment Amount of interest Notation made
SCHEDULE 1
PART III
FORM OF ORIGINAL COUPON 2005
On the front:
ISIN: Serial No: Coupon No:
NORTHERN ELECTRIC FINANCE plc
(Incorporated with limited liability in England and Wales - No. 3070482)
|
(pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005 guaranteed as to principal and interest on a joint and several basis by
NORTHERN ELECTRIC plc
(Incorporated with limited liability in England and Wales - No. 2366942)
and
NORTHERN ELECTRIC DISTRIBUTION LIMITED
(Incorporated with limited liability in England and Wales - No. 2906593)
Coupon for [ ] due on 199[6/7/8/9/2000/1/2/3/4/5].
This Coupon relates to interest payable on (pound)[l,000/l0,000/l00,000]
[(One/Ten/One Hundred Thousand)] principal amount of the Bonds designated as
specified in the title (the "Bonds") of Northern Electric Finance plc (the
"Issuer") constituted by a Master Trust Deed dated 16th October, 1995 between
the Issuer, Northern Electric plc ("NE" and, together with Northern Electric
Distribution Limited, the "Guarantors") and The Law Debenture Trust Corporation
p.l.c. as the Trustee (the "Trust Deed", which expression includes all deeds
supplemental to such Trust Deed).
This Coupon is payable to bearer (subject to the Trust Deed, including the Conditions endorsed on the Certificate representing the Bonds to which this Coupon relates, which shall be binding upon the holder of this Coupon whether or not it is for the time being attached to such Certificate) at the specified offices of the Paying Agents set out on the reverse hereof (or any further or other Paying Agents or specified offices duly appointed or nominated from time to time and notified to the Bondholders).
Such interest is guaranteed by the Guarantors.
This Coupon is negotiable separately from the Bonds to which this Coupon relates.
This Coupon shall not be valid or become obligatory for any purpose until signed on behalf of the Company and authenticated by or on behalf of the Principal Paying Agent.
Dated:
In witness whereof the Company and NE have caused this Coupon to be signed in facsimile on their respective behalves.
Northern Electric Finance plc Northern Electric plc
By: By:
Director Director
By: By:
Director Director
|
Certificate of Authentication
This Coupon is authenticated by or on behalf of the Principal Paying Agent
By:
Authorized Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE CODE.
[NEITHER THE ISSUER NOR THE GUARANTORS HAVE BEEN OR WILL BE REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940.]
On the back:
Details of Paying Agents
SCHEDULE 2
TERMS AND CONDITIONS OF THE BONDS
The (pound)100,000,000 8.625 per cent. Guaranteed Bonds due 2005 (the "Bonds", which expression shall in these Terms and Conditions, unless the context otherwise requires, include any further bonds issued pursuant to Condition 17 and forming a single series with the Bonds) of Northern Electric Finance plc (the "Issuer") are constituted by a master trust deed dated 16th October, 1995 made between the Issuer, Northern Electric plc ("NE") and The Law Debenture Trust Corporation p.l.c. (the "Trustee", which expression shall include all persons for the time being the trustee or trustees under the Trust Deed (as defined below)) as trustee for the holders of the Bonds (the "Bondholders") as modified and restated by a first supplemental trust deed dated 27th September, 2001 made between the Issuer, NE, Northern Electric Distribution Limited ("NEDL" and, together with NE, the "Guarantors" and each a "Guarantor") and the Trustee (together, the "Trust Deed", which expression shall wherever the context so admits include any other deed supplemental thereto). The issue of the Bonds was authorised by a resolution of the board of directors of the Issuer passed on 9th October, 1995. The giving of the guarantee by NE was authorised by a written resolution of the board of directors of NE passed on 14th September, 1995 appointing a committee of the board for the purposes of the giving of the guarantee and by a resolution of such duly appointed committee of the board of directors of NE passed on 9th October, 1995. The giving of the guarantee by NEDL was authorised by a resolution of the board of directors of NEDL passed on 26th September, 2001. The Bonds are listed on the London Stock Exchange plc (the "London Stock Exchange"). The statements in these Terms and Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. Copies of the Trust Deed and of an agency agreement dated 16th October, 1995 (the "Agency Agreement") made between the Issuer, NE, Barclays Bank PLC, as principal paying agent (the "Principal Paying Agent", which expression shall include any successor), the other paying agents named therein (together with the Principal Paying Agent, the "Paying Agents", which expression shall include any additional or successor paying agents) and the Trustee are available for inspection during normal business hours by the Bondholders and the holders of the interest coupons appertaining to the Bonds (respectively, the "Couponholders" and the "Coupons") at the registered office for the time being of the Trustee, being at Fifth Floor, 100 Wood Street, London EC2V 7EX and at the specified office of each of the Paying Agents. The Bondholders and the Couponholders are entitled to the benefit of, and are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement.
1. Form, Denominations and Title
The Bonds are in bearer form, serially numbered, in the denominations of (pound)1,000, (pound)10,000 and (pound)100,000 each with Coupons attached on issue. Title to the Bonds and to the Coupons will pass by delivery. Bonds of one denomination may not be exchanged for Bonds of another denomination.
The Issuer, each Guarantor, any Paying Agent and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bond and the holder of any Coupon as the absolute owner thereof for all
purposes (whether or not the Bond or Coupon shall be overdue and notwithstanding any notice of ownership or writing on the Bond or Coupon or any notice of previous loss or theft of the Bond or Coupon).
2. Status and Guarantee
The Bonds and the Coupons are direct, unconditional and, subject to the provisions of Condition 3, unsecured obligations of the Issuer and, subject as aforesaid, rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency of the Issuer, only to the extent permitted by applicable laws relating to creditors' rights.
The Guarantors have, in the Trust Deed, unconditionally and irrevocably guaranteed on a joint and several basis the due and punctual payment of the principal of and interest on the Bonds as and when the same shall become due and payable together with any additional amounts payable pursuant to Condition 8 and all other moneys payable under the Trust Deed. The obligations of each Guarantor under the terms of its guarantee constitute direct, unconditional and, subject to the provisions of Condition 3, unsecured obligations of such Guarantor and such obligations rank and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the relevant Guarantor, present and future, but, in the event of insolvency of the relevant Guarantor, only to the extent permitted by applicable laws relating to creditors' rights.
3. Negative Pledge
So long as any of the Bonds remains outstanding (as defined in the Trust Deed) each of the Issuer and each Guarantor will ensure that no Relevant Indebtedness of the Issuer, either Guarantor or any Distribution Subsidiary (as defined below) or of any other person and no guarantee by the Issuer, either Guarantor or any Distribution Subsidiary of any Relevant Indebtedness of any other person will be secured by a mortgage, charge, lien, pledge or other security interest (each a "Security Interest") upon, or with respect to, any of the present or future business, undertaking, assets or revenues (including any uncalled capital) of the Issuer, either Guarantor or any Distribution Subsidiary unless the Issuer or the relevant Guarantor, as the case may be, shall, before or at the same time as the creation of the Security Interest, take any and all action necessary to ensure that:
(a) all amounts payable by the Issuer under the Bonds, the Coupons and the Trust Deed or, as the case may be, the obligations of the relevant Guarantor under its guarantee referred to in Condition 2 are secured to the satisfaction of the Trustee equally and rateably with the Relevant Indebtedness or guarantee of Relevant Indebtedness, as the case may be, by such Security Interest; or
(b) such other Security Interest or guarantee or other arrangement
(whether or not including the giving of a Security Interest)
is provided in respect of all amounts payable by the Issuer
under the Bonds, the Coupons and the Trust Deed or, as the
case may be, in respect of the obligations of the relevant
Guarantor under its guarantee referred to in Condition 2
either (i) as the Trustee shall in its absolute discretion deem not materially less beneficial to the interests of the Bondholders or (ii) as shall be approved by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders,
save that the Issuer, either Guarantor or any Distribution Subsidiary may create
or have outstanding a Security Interest in respect of any of its Relevant
Indebtedness and/or any guarantees given by the Issuer, either Guarantor or any
Distribution Subsidiary in respect of any Relevant Indebtedness of any other
person (without the obligation to provide a Security Interest or guarantee or
other arrangement in respect in respect of the Bonds, the Coupons and the Trust
Deed or, as the case may be, the obligations of the relevant Guarantor under the
said guarantee as aforesaid) where such Relevant Indebtedness has an initial
maturity falling not earlier than 31st December, 2005 and is of a maximum
aggregate amount outstanding at any time not exceeding the greater of
(pound)20,000,000 and 20 per cent. of the Consolidated Tangible Net Worth (as
defined below).
For the purposes of these Terms and Conditions:
(a) "Consolidated Tangible Net Worth" at any particular time the aggregate of the amount paid up on NE's issued share capital and the consolidated distributable and non-distributable reserves of the Group (as shown in the most recently published audited consolidated financial statements of the Group), after:
(i) deducting the total of any debit balance on the profit and loss account and the book value of any intangible assets including but not limited to goodwill; and
(ii) excluding any minority interests in Subsidiary Undertakings;
but adjusted as may be necessary in respect of any variation in the paid-up share capital or share premium account of the Group since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiary Undertakings comprising the Group.
A report by the Auditors (as defined in the Trust Deed) as to the amount of the Consolidated Tangible Net Worth at any given time shall, in the absence of manifest error, be conclusive and binding on all parties.
(b) "Distribution License" means either the distribution licence granted to NEDL under section 6(l)(c) of the Electricity Act 1989 as amended by section 30 of the Utilities Act 2000 or the public electricity supply licence of NE having effect as if it were a distribution licence granted to NEDL under section 6(l)(c) of the Electricity Act 1989 as amended by section 30 of the Utilities Act 2000, as appropriate.
(c) "Distribution Subsidiary" means any Subsidiary of NE which holds a Distribution License granted under Section 6(l)(c) of the Electricity Act 1989 as amended by the Utilities Act 2000;
(d) "Excluded Subsidiary" means any Subsidiary of the Issuer or either Guarantor (other than a Distribution Subsidiary):
(i) which is a single purpose company whose principal assets and business are constituted by the ownership, acquisition, development and/or operation of an asset;
(ii) none of whose indebtedness for borrowed money in respect of the financing of such ownership, acquisition, development and/or operation of an asset is subject to any recourse whatsoever to any member of the Group (other than another Excluded Subsidiary) in respect of the repayment thereof and
(iii) which has been designated as such by the Issuer or either Guarantor by written notice to the Trustee, provided that the Issuer or either Guarantor, as the case may be, may give written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary, whereupon it shall cease to be an Excluded Subsidiary;
(e) "Group" means NE, NEDL, the Issuer and the Subsidiary Undertakings of NE;
(f) "Project Finance Indebtedness" means any present or future indebtedness (whether being principal, premium, interest or other amounts) to finance a project:
(i) which is incurred by an Excluded Subsidiary; or
(ii) in respect of which recourse to any member of the Group for the repayment or payment of any sum relating to such indebtedness is limited to:
(1) the assets of a single purpose company (other than a Distribution Subsidiary) the principal assets and business of which are constituted by such project and which was established for the purpose of incurring such indebtedness; or
(2) the assets of the project and the rights, revenues and insurance proceeds derived therefrom or related thereto,
with no recourse to any other assets of the Group (other than those of an Excluded Subsidiary);
(g) "Relevant Indebtedness" means any present or future indebtedness (whether being principal, premium, interest or other amounts) in the form of or represented by notes, bonds, debentures, debenture stock, loan stock or other securities, whether issued for cash or in whole or in part for a consideration other than cash, and which, with the agreement
of the person issuing the same are quoted, listed or ordinarily dealt in on any stock exchange or recognized over-the-counter or other securities market, but shall not in any event include Project Finance Indebtedness;
(h) "Subsidiary" means a subsidiary within the meaning of Section 736 of the Companies Act 1985;
(i) "Subsidiary Undertaking" shall have the meaning given to it by
Section 258 of the Companies Act 1985 (but shall exclude any
undertakings (as defined in the Companies Act 1985) whose
accounts are not included in the then latest published audited
consolidated accounts of NE, nor (in the case of an
undertaking which has first become a subsidiary undertaking of
a member of the Group since the date as at which any such
audited accounts were prepared) would its accounts have been
so included or consolidated if it had become so on or before
that date); and
(j) any reference to an obligation being guaranteed shall include a reference to an indemnity being given in respect of the obligation.
4. Interest
The Bonds bear interest from (and including) 16th October, 1995 at the rate of 8.625 per cent. per annum, payable annually in arrear on 16th October in each year (each an "Interest Payment Date").
Each Bond will cease to bear interest from its due date for redemption unless, upon due presentation, payment of the principal in respect of the Bond is improperly withheld or refused or unless default is otherwise made in respect of such payment, in which event interest shall continue to accrue as provided in the Trust Deed.
When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of a 360-day year consisting of 12 months of 30 days each and, in the case of an incomplete month, the number of days elapsed.
5. Payments
Payments of principal in respect of each Bond will only be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Bond at the specified office of any of the Paying Agents. Payments of interest due on the Bonds on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupons at the specified office of any of the Paying Agents. Each such payment will be made at the specified office of any Paying Agent, at the option of the holder, by sterling cheque drawn on a branch of, or by transfer to a sterling account maintained by the payee with, a bank in the City of London, subject in all cases to any applicable fiscal or other laws and regulations, but without prejudice to the provisions of Condition 8.
Each Bond must be presented for payment together with all unmatured Coupons appertaining thereto failing which the full amount of any missing
unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupons which the amount so paid bears to the total amount due) appertaining thereto will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner mentioned above against presentation and surrender (or, in the case of part payment only, endorsement) of such missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 8) in respect of the relevant Bond (whether or not such Coupon would otherwise have become void pursuant to Condition 9), or, if later, five years after the date on which such Coupon would have become due, but not thereafter.
A holder shall be entitled to present a Bond or Coupon for payment only on a Presentation Date and shall not be entitled to any further interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 9):
(a) is or falls after the relevant due date but, if the due date is not or was not a Business Day in the City of London, is or falls after the next following such Business Day; and
(b) is a Business Day in the place of the specified office of the Paying Agent at which the Bond or Coupon is presented for payment and, in the case of payment by transfer to a sterling account in the City of London as referred to above, in the City of London.
"Business Day" means, in relation to any place, a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in that place.
When making payments to Bondholders or Couponholders, fractions of one penny will be rounded down to the nearest whole penny.
The names of the initial Paying Agents and their initial specified offices are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that it will at all times maintain at least two Paying Agents having specified offices in separate European cities previously approved in writing by the Trustee, one of which, so long as the Bonds are listed on the London Stock Exchange, shall be London or such other place as the London Stock Exchange may approve and one of which shall be outside the United Kingdom. Notice of any such termination or appointment and of any changes in the specified offices of the Paying Agents will be given to the Bondholders promptly by the Issuer in accordance with Condition 14.
6. Redemption and Purchase
(A) Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Bonds at their principal amount on 16th October, 2005.
(B) The Issuer may, at any time, having given notice to the Bondholders in accordance with this Condition 6(B) (which notice shall be irrevocable), redeem the Bonds in whole or in
part (but if in part, in integral multiples of
(pound)1,000,000 in principal amount thereof), at the price
which shall be the higher of the following, together with
interest accrued up to the date of redemption:
(i) their principal amount; and
(ii) that price (the "Redemption Price"), expressed as a percentage rounded to three decimal places (0.0005 being rounded down), at which the Gross Redemption Yield on the Bonds, if they were to be purchased at such price on the third dealing day prior to the publication of the notice of redemption (or, in the case of a partial redemption, the first notice of redemption referred to below), would be equal to the Gross Redemption Yield on such dealing day of the 8 1/2 per cent. Treasury Stock 2005 or of such other United Kingdom Government Stock as the Trustee, with the advice of three leading brokers operating in the gilt-edged market and/or gilt-edged market makers, shall determine to be appropriate (the "Reference Stock") on the basis of the middle market price of the Reference Stock prevailing on such dealing day, as determined by Barclays Bank PLC (or such other person(s) as the Trustee may approve).
The Gross Redemption Yield on the Bonds and the Reference Stock will be expressed as a percentage and will be calculated on the basis indicated by the Joint Index and Classification Committee of the Institute and Faculty of Actuaries as reported in the Journal of the Institute of Actuaries, Vol. 105, Part 1, 1978, page 18 or on such other basis as the Trustee may previously approve in writing.
In the case of a redemption of all of the Bonds pursuant to this Condition 6(B), notice will be given to the Bondholders by the Issuer in accordance with Condition 14 once not less than 30 nor more than 60 days before the date fixed for redemption and will specify the date fixed for redemption and the redemption price.
In the case of a partial redemption of Bonds, Bonds to be redeemed will be selected individually by lot in such place as the Trustee may previously approve in writing and in such manner as the Trustee shall deem to be appropriate and fair without involving any part of a Bond, not more than 65 days before the date fixed for redemption. In the case of a partial redemption of the Bonds pursuant to this Condition 6(B), notice will be so given to the Bondholders by the Issuer in accordance with Condition 14 twice, first not less than 80 nor more than 95 days, and secondly not less than 30 nor more than 60 days, before the date fixed for redemption. Each notice will specify the date fixed for redemption and the redemption price, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of Bonds previously called (in whole or in part) for redemption and not presented for payment and the aggregate principal amount of Bonds which will be outstanding after the partial redemption. In addition the second such notice will specify the serial numbers of the Bonds called for redemption.
Upon the expiry of any such notice as is referred to in this Condition
6(B), the Issuer shall be bound to redeem the Bonds to which the notice refers
at the relevant redemption price at the date of such redemption together with
interest accrued to but excluding such date.
(C) If as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 10th October, 1995, the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 8 (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall, in the absence of manifest error, accept such certificate and opinion as sufficient evidence thereof) of (i) a certificate signed by two directors of the Issuer on behalf of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer taking reasonable measures available to it and (ii) an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to whom the Trustee shall have no reasonable objection to the effect that such amendment or change has occurred (irrespective of whether such amendment or change is then effective)), the Issuer may at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 14 (which notice shall be irrevocable), redeem all the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 6(B) prior to any notice being given under this Condition 6(C)) but not some only, at their principal amount together with interest (if any) accrued to (but excluding) the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer would be required to pay such additional amounts were a payment in respect of the Bonds then due.
Upon expiry of any such notice as is referred to in this Condition 6(C) (and subject as provided above), the Issuer shall be bound to redeem all the Bonds at their principal amount together with interest accrued to (but excluding) the redemption date.
(D) The Issuer, either Guarantor or any of their respective Subsidiaries may at any time purchase Bonds together with unmatured Coupons in any manner and at any price in the open market or by private treaty. If purchases are made by tender, tenders must be available to all Bondholders alike. Bonds purchased by the Issuer, either Guarantor or any of their respective Subsidiaries may be held or reissued or resold or surrendered for cancellation.
(E) All Bonds which are redeemed will forthwith be cancelled (together with all relative unmatured Coupons attached to or surrendered with the Bonds) and may not be reissued or resold.
(F) While any Bonds are held by the Issuer, either Guarantor or any of their respective Subsidiaries, such Bonds shall not entitle the holder to vote at, or to be counted in the quorum for, any meeting of Bondholders and, for the purposes of the provisions of the Trust Deed concerning meetings of Bondholders, will not be regarded as being in issue.
7. Redemption at the Option of Bondholders
(A) For the purposes of these Terms and Conditions:
(i) "independent financial adviser" means a financial adviser appointed by NEDL and previously approved in writing by the Trustee (such approval not to be unreasonably withheld or delayed) or, if NEDL shall not have appointed such an adviser within 21 days of becoming aware of the occurrence of a Restructuring Event and the Trustee is indemnified to its satisfaction against the costs of such adviser, appointed by the Trustee following consultation with NEDL;
(ii) "Investment Grade Rating" means a rating of at least investment grade BBB- in the case of Standard & Poor's Rating Services, a division of the McGraw-Hill Companies Inc. and Baa3 in the case of Moody's Investors Services Limited or their respective equivalents for the time being;
(iii) "Negative Certification" means a certificate given in writing to the Trustee by an independent financial adviser that a Restructuring Event will be or is, in its opinion, materially prejudicial to the interests of the Bondholders;
(iv) A "Negative Rating Event" shall be deemed to have occurred if (X) NEDL does not, either prior to or not later than 14 days after the date of a Negative Certification in respect of the relevant Restructuring Event, seek, and thereupon use all reasonable endeavours to obtain, a rating of the Bonds or any other unsecured and unsubordinated debt of NEDL (or of any Subsidiary of NEDL (including, without limitation, the Issuer) and which is guaranteed on an unsecured and unsubordinated basis by NEDL) having an initial maturity of five years or more from a Rating Agency or (Y) if NEDL does so seek and use such endeavours but it is unable, as a result of such Restructuring Event, to obtain the Investment Grade Rating (and, in this definition, "seek" shall include procuring the relevant Subsidiary to seek);
(v) A "Put Event" occurs on the date of the last to occur
of all of the following (aa) a Restructuring Event,
(bb) either a Rating Downgrade or, as the case may
be, a Negative Rating Event and (cc) the relevant
Negative Certification;
(vi) "Rating Agency" means Standard & Poor's Rating Services, a Division of the McGraw-Hill Companies Inc. or any of its subsidiaries and their successors or Moody's Investors Service Limited or any of its subsidiaries and their successors or any rating agency substituted for either of them (or any permitted substitute of them) by NEDL from time to time with the prior written approval of the Trustee (such approval not to be unreasonably withheld or delayed);
(vii) Following a Restructuring Event, a "Rating Downgrade" shall be deemed to have occurred in respect of that Restructuring Event if the then current rating
assigned to the Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of NEDL or by its own volition) is withdrawn or reduced from the Investment Grade Rating or, if the Rating Agency shall then have already rated the Rated Securities below the Investment Grade Rating, the rating is lowered one full rating category;
(viii) "Rated Securities" means the Bonds, if at any time
and for so long as they shall have a rating from a
Rating Agency, and otherwise any other unsecured and
unsubordinated debt of NEDL (or of any Subsidiary of
NEDL (including, without limitation, the Issuer) and
which is guaranteed on an unsecured and
unsubordinated basis by NEDL) having an initial
maturity of five years or more which is rated by a
Rating Agency;
(ix) "Restructuring Event" means the occurrence of any one
or more of the following events:
(A) (aa) The Gas and Electricity Markets
Authority (which expression shall in these
Terms and Conditions include any other
competent authority) (or any successor)
giving the Issuer written notice of
revocation of the Distribution Licence (bb)
NEDL agreeing in writing with the Secretary
of State for Trade and Industry (or any
successor) to any revocation or
surrender of the Distribution Licence or
(cc) any legislation (whether primary or
subordinate) being enacted terminating or
revoking the Distribution Licence, except
in any such case in circumstances where a
licence or licences on substantially no
less favourable terms is or are
granted to NEDL or a wholly-owned
Subsidiary of NEDL (the "Relevant
Subsidiary") and in the case of such
Relevant Subsidiary at the time of such
grant it either executes in favour of the
Trustee an unconditional and irrevocable
guarantee in respect of the Bonds in such
form as the Trustee may previously approve
in writing (such approval not to be
unreasonably withheld or delayed) or
becomes the principal debtor under the
|
Bonds in accordance with Condition 12; or
(B) any modification (other than a modification which is of a formal, minor or technical nature) being made to the terms and conditions of the Distribution Licence on or after the Effective Date (as defined in the First Supplemental Trust Deed) unless the modified terms and conditions are certified by two directors of NEDL to be not materially less favourable to the business of NEDL; or
(C) any legislation (whether primary or subordinate) is enacted which removes, qualifies or amends (other than an amendment which is of a formal, minor or technical nature) the duties of the Secretary of
State for Trade and Industry (or any
successor) and/or the Gas and Electricity
Markets Authority (or any successor) under
Section 3A of the Electricity Act 1989 (as
amended) as in force on the Effective Date,
unless two directors of NEDL certify that
such removal, qualification or amendment
does not have a materially adverse effect
on the financial condition of NEDL.
(x) "Restructuring Period" means:
(A) if at the time a Restructuring Event occurs there are Rated Securities, the period of 90 days starting from and including the day on which that Restructuring Event occurs; or
(B) if at the time a Restructuring Event occurs
there are no Rated Securities, the period
starting from and including the day on which
that Restructuring Event occurs and ending
on the day 90 days following the later of
(aa) the date on which NEDL shall seek to
obtain a rating pursuant to Condition
7(A)(iv) prior to the expiry of the 14 days
referred to in the definition of Negative
Rating Event and (bb) the date on which a
Negative Certification shall have been given
to NEDL in respect of that Restructuring
Event; and
(xi) A Rating Downgrade or a Negative Rating Event or a non-Investment Grade Rating shall be deemed not to have occurred as a result or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating or, where applicable, declining to assign a rating of at least investment made as provided in Condition 7 does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstances comprised in or arising as a result of the applicable Restructuring Event.
The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and until it shall have actual knowledge or express notice in accordance with the Trust Deed to the contrary the Trustee may assume that no Restructuring Event, Negative Rating Event or other such event has occurred.
(B) If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and prior to the commencement of or during the Restructuring Period an independent financial adviser shall have certified in writing to the Trustee that such Restructuring Event will not be or is not, in its opinion, materially prejudicial to the interests of the Bondholders, the following provisions of this Condition 7 shall cease to have any further effect in relation to such Restructuring Event.
(C) If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and (subject to Condition 7(B)):
(X) within the Restructuring Period, either:
(i) if at the time such Restructuring Event occurs there are Rated Securities a Rating Downgrade in respect of such Restructuring Event also occurs; or
(ii) if at such time there are no Rated Securities, a Negative Rating Event also occurs; and
(Y) an independent financial adviser shall have given a Negative Certification,
then, unless at any time the Issuer shall have given a notice in respect of his Bond under Condition 6(B) or under Condition 6(C), in each case expiring prior to the Put Date (as defined below) each Bondholder shall have the option (the "Put Option") to require the Issuer or, failing the Issuer, either Guarantor, to redeem or, at the option of the Issuer or the relevant Guarantor, as applicable, purchase (or procure the purchase of) that Bond on the Put Date at its principal amount together with (or, where purchased, together with an amount equal to) interest (if any) accrued to (but excluding) the Put Date.
A Restructuring Event shall be deemed not to be materially prejudicial to the interests of the Bondholders if, notwithstanding the occurrence of the Rating Downgrade, the rating assigned to the Rated Securities by any Rating Agency (as defined below) is subsequently increased to the Investment Grade Rating prior to any Negative Certification being given.
Any certification by an independent financial adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event will be or is materially prejudicial to the interests of the Bondholders shall, in the absence of manifest error, be conclusive and binding on the Trustee, the Issuer, the Guarantors, the Bondholders and the Couponholders.
(D) Promptly upon the Issuer or either Guarantor becoming aware that a Put Event has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer or the relevant Guarantor shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 14 specifying the nature of the Put Event, and the procedure for exercising the Put Option.
(E) To exercise the Put Option in respect of his Bond the Bondholder must deliver such Bond to the specified office of any Paying Agent, on a day which is a Business Day (as defined in Condition 5) in the City of London and in the place of such specified office falling within the period (the "Put Period") commencing on the date the Put Event Notice is given and expiring 45 days thereafter accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any
Paying Agent (a "Put Notice") and in which the Bondholder may specify a bank account complying with the requirements of Condition 5 to which payment is to be made under this Condition 7. Each Bond must be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being, the fifteenth day after the date of expiry of the Put Period failing which the full amount of any such missing Coupon will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner provided in Condition 5 against presentation and surrender (or, in the case of part payment only, endorsement) of such missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 8) in respect of the relevant Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9) or, if later, five years after the date on which such Coupon would have become due, but not thereafter. The Paying Agent to which such Bond and Put Notice are delivered shall issue to the Bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly specifies a bank account in the Put Notice to which payment is to be made, on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date, but in each case against presentation and surrender (or, as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 5. A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 1, 9, 10, 11, 13, and 15 and for certain other purposes specified in the Trust Deed, receipts issued pursuant to this Condition 7 shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date, unless such Bond has been previously redeemed or purchased in accordance with these Terms and Conditions.
8. Taxation
All payments in respect of the Bonds and the Coupons by the Issuer or, as the case may be, either Guarantor shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of the United Kingdom, or any political sub-division of, or any authority in, or of the United Kingdom having power to tax, unless the withholding or deduction of the Taxes is required by law. In that event, the Issuer or, as the case may be, the Guarantors will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Bonds or, as the case may be, the Coupons in the absence of the withholding or deduction except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
(a) to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of his having some connection with the United Kingdom other than the mere holding of the Bond or Coupon; or
(b) presented for payment in the United Kingdom; or
(c) presented for payment more than 30 days after the Relevant Date except to the extent that a holder would have been entitled to additional amounts on presenting the same for payment on the last day of such period of 30 days; or
(d) to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority.
As used herein, "Relevant Date" means the date on which the payment first becomes due but, if the amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 14.
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall be deemed also to refer to any additional amounts which may be payable under this Condition 8 or under any undertakings given in addition to, or in substitution for, this Condition 8 pursuant to the Trust Deed.
9. Prescription
Bonds and Coupons will become void unless presented for payment within periods of 10 years and five years respectively from the Relevant Date in respect of the Bonds or, as the case may be, the Coupons, subject to the provisions of Condition 5.
10. Events of Default
The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding or if so directed by an Extraordinary Resolution of the Bondholders shall, (but in the case of the happening of any of the events mentioned in sub-paragraphs (b), (c), (d), (e), (f), (g), (h) and (i) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Bondholders and subject in each case to the Trustee being indemnified by, or on behalf of, Bondholders to its satisfaction), give notice to the Issuer and the Guarantors that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed) if any of the following events (each an "Event of Default") shall have occurred (unless such Event of Default has been remedied to the satisfaction of the Trustee):
(a) if default is made for a period of 7 days or more in the payment of any principal or the purchase price due in respect of any Bond pursuant to Condition 7 or 14 days or more in the payment of any interest due in respect of the Bonds or any of them; or
(b) if the Issuer or NEDL fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation as is hereinafter mentioned will be required) such failure continues for the period of 30 days (or such longer period as the Trustee may in its absolute discretion permit) next following the service by the Trustee on the Issuer or NEDL, as the case may be, of notice requiring the same to be remedied; or
(c) if (i) any other indebtedness for borrowed money of the Issuer, NEDL or any Principal Subsidiary becomes due and repayable prior to its stated maturity by reason of an event of default (howsoever described) or (ii) any such indebtedness for borrowed money is not paid when due or, as the case may be, within any applicable grace period (as originally provided) or (iii) the Issuer, NEDL or any Principal Subsidiary falls to pay when due (or, as the case may be, within any originally applicable grace period) any amount payable by it under any present or future guarantee for, or indemnity in respect of, any indebtedness for borrowed money of any person or (iv) any security given by the Issuer, NEDL or any Principal Subsidiary for any indebtedness for borrowed money of any person or any guarantee or indemnity of indebtedness for borrowed money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case where there is a bona fide dispute as to whether the relevant indebtedness for borrowed money or any such guarantee or indemnity as aforesaid shall be due and payable, provided that the aggregate amount of the relevant indebtedness for borrowed money in respect of which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds whichever is the greater of(pound)20,000,000 or its equivalent in other currencies (as determined by the Trustee) or two per cent. of the Consolidated Tangible Net Worth, and for the purposes of this sub-paragraph (c), "indebtedness for borrowed money" shall exclude Project Finance Indebtedness; or
(d) if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer or NEDL, save for the purposes of amalgamation, merger, consolidation. reorganisation, reconstruction or other similar arrangement on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or
(e) if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of a Principal Subsidiary, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of such Principal Subsidiary and under which all the surplus assets of such Principal Subsidiary are transferred to NEDL or any of its other Subsidiaries or (ii) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or
(f) if the Issuer, NEDL or any Principal Subsidiary shall cease to carry on the whole or substantially the whole of its business, save in each case for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of the Issuer, NEDL or such Principal Subsidiary and under which all or substantially all of its assets are transferred to NEDL or any of its other Subsidiaries or (ii) under which all or substantially all of its assets are transferred to a third party or parties (whether associates or not) for full consideration by the Issuer, NEDL or a Principal Subsidiary on an arm's length basis or (iii) where the transferee is or immediately upon such transfer becomes a Principal Subsidiary or (iv) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders, provided that if NEDL shall transfer the Distribution Licence it shall be deemed to have ceased to carry on the whole or substantially the whole of its business (and none of exceptions (i) to (iii) shall apply) unless the transferee assumes all the Issuer's obligations under the Bonds and the Trust Deed as primary obligor or gives a guarantee in substitution for NEDL in form and substance acceptable to the Trustee in respect of the obligations of the Issuer under the Bonds and the Trust Deed; or
(g) if the Issuer, NEDL or any Principal Subsidiary shall suspend or shall threaten to suspend payment of its debts generally or shall be declared or adjudicated by a competent court to be unable or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Section 1 of the Insolvency Act 1986; or
(h) if a receiver, administrative receiver, administrator or other similar official shall be appointed in relation to the Issuer, NEDL or any Principal Subsidiary or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or an encumbrancer shall take possession of, the whole or a substantial part of the assets of any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 60 days (or such longer period as the Trustee may in its absolute discretion permit); or
(i) if the Issuer ceases to be a wholly-owned Subsidiary of NEDL or if NEDL ceases to have the right to appoint or remove a majority of the board of directors of the Issuer.
For the purposes of sub-paragraph (g) above, Section 123(l)(a) of the Insolvency Act 1986 shall have effect as if for "(pound)750" there was substituted "(pound)250,000" or such higher figure as the Gas and Electricity Markets Authority may from time to time determine by notice in writing to NEDL.
Neither the Issuer, NEDL nor any Principal Subsidiary shall be deemed to be unable to pay its debts for the purposes of sub-paragraph (g) above if any such demand as is mentioned in Section 123(1)(a) of the Insolvency Act 1986 is being contested in good faith by the Issuer, NEDL or the relevant Principal Subsidiary, as the case may be, with recourse to all appropriate measures and procedures or if any such demand is satisfied before the expiration of such period as may be stated in any notice given by the Trustee under the first paragraph of this Condition 10.
For the purposes of these Terms and Conditions
(a) a "Principal Subsidiary" at any time shall mean a Subsidiary of the Issuer or NEDL (not being any Subsidiary of the Issuer or NEDL whose only indebtedness for borrowed money is Project Finance Indebtedness):
(A) whose (i) net profits before tax or (ii) gross assets represent 15 per cent. or more of the consolidated net profits before tax of NEDL and its Subsidiaries (the "NEDL Group") or consolidated gross assets of the NEDL Group respectively in each case as calculated by reference to the then latest audited financial statements of such Subsidiary (consolidated in the case of a company which itself has Subsidiaries and which, in the normal course, prepares consolidated accounts) and the then latest audited consolidated financial statements of the NEDL Group; or
(B) to which is transferred all or substantially all of the business, undertaking and assets of a Subsidiary of the Issuer or NEDL which immediately prior to such transfer is a Principal Subsidiary, whereupon the transferor Subsidiary shall immediately cease to be a Principal Subsidiary and the transferee Subsidiary shall immediately become a Principal Subsidiary under the provisions of this sub-paragraph (B) (but without prejudice to the provisions of sub-paragraph (A) above);
all as more fully defined in the Trust Deed.
A report by the Auditors that in their opinion a Subsidiary of the Issuer or NEDL is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary shall, in the absence of manifest error, be conclusive and binding on the Guarantors, the Issuer, the Trustee, the Bondholders and the Couponholders; and
(b) "indebtedness for borrowed money" means any present or future
indebtedness (whether being principal, premium, interest or
other amounts) for or in respect of (i) money borrowed, (ii)
liabilities under or in respect of any acceptance credit, or
(iii) any notes, bonds, debentures, debenture stock, loan
stock or other securities offered, issued or distributed
whether by way of public offer, private placing, acquisition
consideration or otherwise and whether issued for cash or in
whole or in part for a consideration other than cash.
11. Enforcement
The Trustee may at any time, at its discretion and without notice, take such proceedings against the Issuer or either Guarantor as it may think fit to enforce the provisions of the Trust Deed, the Bonds and the Coupons but it shall not be bound to take any proceedings or any other action in relation to the Trust Deed, the Bonds or the Coupons unless (a) it shall have been so directed by an Extraordinary Resolution of the Bondholders or so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding, and (b) it shall have been indemnified to its satisfaction. No Bondholder or Couponholder shall be entitled to proceed directly against the Issuer or either Guarantor unless the Trustee, having become bound so to proceed, fails so to do within a reasonable period and such failure shall be continuing.
12. Substitution
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer and the Guarantors to the substitution in place of the Issuer (or of any previous substitute under this Condition) as the principal debtor under the Bonds, the Coupons and the Trust Deed of NEDL or any Subsidiary or holding company (as defined in section 736 of the Companies Act 1985) of NEDL or any Subsidiary of such holding company, subject to (a) the Bonds continuing to be unconditionally and irrevocably guaranteed by the Guarantors (save where NE or, as the case may be, NEDL itself has been substituted for the Issuer (or any previous substitute) or where NEDL has transferred the Distribution Licence to the substituted party), (b) the Trustee being satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution, and (c) certain other conditions set out in the Trust Deed being complied with.
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer and the Guarantors to the substitution in place of NEDL (or of any previous substitute under this Condition) as guarantor of the obligations of the Issuer (or of any previous substitute under this Condition) guaranteed by NEDL under the Bonds, the Coupons and the Trust Deed of any Subsidiary or holding company (as defined in section 736 of the Companies Act 1985) of NEDL or any subsidiary of such holding company, subject to (a) the Distribution Licence having been previously transferred to the substituted party; (b) the Trustee bring satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution; and (c) certain other conditions set out in the Trust Deed being complied with.
13. Replacement of Bonds and Coupons
If any Bond or Coupon is lost, stolen, mutilated, defaced or destroyed it may be replaced at the specified office of the Paying Agent in London, upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence, indemnity and security as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must be surrendered before replacements will be issued.
14. Notices
Notices to the Bondholders will be valid if published in a leading English language daily newspaper published in London or such other English language daily newspaper with general circulation in Europe as the Trustee may previously approving in writing. Any notice shall be deemed to have been given on the date of publication or, if so published more than once, on the date of the first publication. It is expected that publication will normally be made in the Financial Times. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may previously approve in writing.
Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Bondholders in accordance with this Condition 14.
15. Meetings of Bondholders, Modification, Waiver and Authorisation
(a) The Trust Deed contains provisions for convening meetings of the Bondholders to consider any matter affecting their interests, including the modification by Extraordinary Resolution of these Terms and Conditions or the provisions of the Trust Deed. The quorum at any meeting for passing an Extraordinary Resolution will be one or more persons present holding or representing a clear majority in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting one or more persons present whatever the principal amount of the Bonds held or represented by him or them, except that at any meeting, the business of which includes the modification of certain of the provisions of these Terms and Conditions and certain of the provisions of the Trust Deed, the necessary quorum for passing an Extraordinary Resolution will be one or more persons present holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, of the principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of the Bondholders will be binding on all Bondholders, whether or not they are present at the meeting or voted thereat, and on all Couponholders.
(b) The Trustee may agree, without the consent of the Bondholders or Couponholders, to any modification (subject to certain exceptions) of, or to the waiver or authorisation of any breach or proposed breach of, any of these Terms and Conditions or any of the provisions of the Trust Deed which is not, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders or to any modification which is of a formal, minor or technical nature or to correct a manifest error.
(c) In connection with the exercise by it of any of its trusts, powers, authorities or discretions (including, without limitation, any modification, waiver, authorisation or substitution), the Trustee shall have regard to the interests of the Bondholders as a class and, in particular but without limitation, shall not have regard to the consequences of the exercise of its trusts, powers, authorities or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer, either Guarantor, the Trustee or any other person any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders
or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition to, or in substitution for, Condition 8 pursuant to the Trust Deed.
(d) Any modification, waiver or authorisation shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 14.
16. Indemnification of the Trustee
The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified to its satisfaction.
17. Further Issues
The Issuer is at liberty from time to time without the consent of the Bondholders or Couponholders to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may determine at the time of the issue. Any further bonds or notes which are to form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed shall, and any other further bonds or notes may (with the prior written consent of the Trustee), be constituted by a deed supplemental to the Trust Deed. The Trust Deed contains provisions for convening a single meeting of the Bondholders and the holders of bonds or notes of other series in certain circumstances where the Trustee so decides.
18. Governing Law
The Trust Deed, the Bonds and the Coupons are governed by, and will be construed in accordance with, English law.
PRINCIPAL PAYING AGENT
Barclays Bank PLC
BGSS Depositary Services
8 Angel Court
Throgmorton Street
London EC2R 7HT
OTHER PAYING AGENT
Banque Internationale a Luxembourg S.A.
69 route d'Esch
L-1470 Luxembourg
SCHEDULE 3
PART I
FORM OF INDIVIDUAL CERTIFICATE FOR ORIGINAL BONDS 2020
On the front: Serial No: Cert No:
ISIN:
NORTHERN ELECTRIC FINANCE plc
(Incorporated with limited liability in England and Wales - No. 3070482)
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020
guaranteed as to principal and interest on a joint and several basis by
NORTHERN ELECTRIC plc
(Incorporated with limited liability in England and Wales - No.2366942)
and
NORTHERN ELECTRIC DISTRIBUTION LIMITED
(Incorporated with limited liability in England and Wales - No. 2906593)
The Bonds in respect of which this Certificate is issued are in bearer form and form part of the series designated as specified in the title (the "Bonds") of Northern Electric Finance plc (the "Issuer") constituted by a Master Trust Deed dated 16th October, 1995 between the Issuer, Northern Electric plc ("NE" and, together with Northern Electric Distribution Limited, the "Guarantors") and The Law Debenture Trust Corporation p.l.c. as the Trustee (the "Trust Deed", which expression includes all deeds supplemental to such Trust Deed). The Bonds are subject to, and have the benefit of, the Trust Deed and the Terms and Conditions (the "Conditions") set out on the reverse hereof.
The Issuer for value received hereby promises to pay to the bearer of this Certificate the principal amount of (pound)[l,000/10,000/l00,000] [(One/Ten/One Hundred)] Thousand pounds sterling on 16th October, 2005 or on such earlier date as such principal amount may become payable in accordance with the Conditions and the Trust Deed together with interest thereon and any other moneys payable in respect of the Bonds in accordance with the Conditions and the Trust Deed.
The Bonds are guaranteed as to principal and interest by the Guarantors on the terms of the Trust Deed.
This Certificate shall not be valid or become obligatory for any purpose until signed on behalf of the Issuer and the Guarantor and authenticated by or on behalf of the Principal Paying Agent.
Dated:
In witness whereof the Issuer and NE have caused this Certificate to be signed in facsimile on their respective behalves.
Northern Electric Finance plc Northern Electric plc
By: By:
Director Director
By: By:
Director Director
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This Certificate is authenticated by or on behalf of the Principal Paying Agent.
By:
Authorised Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
[NEITHER THE ISSUER NOR THE GUARANTORS HAVE BEEN OR WILL BE REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940.]
On the back:
Terms and Conditions
Details of Agents
SCHEDULE 3
PART II
FORM OF ORIGINAL GLOBAL BOND 2020
ISIN:
NORTHERN ELECTRIC FINANCE plc
(Incorporated with limited liability in England and Wales - No. 3070482)
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020
guaranteed as to principal and interest by
NORTHERN ELECTRIC plc
(Incorporated with limited liability in England and Wales - No. 2366942)
TEMPORARY GLOBAL BOND CERTIFICATE
The Bonds in respect of which this temporary Global Bond Certificate is issued
are in bearer form and comprise the series of Bonds designated as specified in
the title (the "Bonds") of Northern Electric Finance plc (the "Issuer")
constituted by a Master Trust Deed dated 16th October, 1995 between the Issuer,
Northern Electric plc (the "Guarantor") and The Law Debenture Trust Corporation
p.l.c. as the Trustee (the "Trust Deed", which expression includes all deeds
supplemental to such Trust Deed). The Bonds are subject to, and have the benefit
of, the Trust Deed including the Terms and Conditions set out on the reverse
hereof.
The Issuer for value received hereby promises to pay to the bearer of this Certificate the principal amount of (pound)100,000,000 (or such lesser or greater amount as is duly endorsed in the third column of Schedule A to this Certificate) on 16th October, 2005 or on such earlier date as such principal amount may become payable in accordance with the Trust Deed together with interest thereon and any other moneys payable in respect of the Bonds in accordance with the Trust Deed.
The Bonds are guaranteed as to principal and interest by the Guarantor on the terms of the Trust Deed.
This temporary Global Bond Certificate is exchangeable for individual Certificates representing Bonds in bearer form with Coupons attached. The Issuer hereby irrevocably undertakes to deliver individual Certificates representing Bonds in exchange for this temporary Global Bond Certificate on and after 26th November, 1995 (the "Exchange Date").
On or after the Exchange Date this temporary Global Bond Certificate may be exchanged in whole or in part for individual Certificates representing Bonds in an aggregate principal amount not exceeding the principal amount of this temporary Global Bond Certificate by the submission of this temporary Global Bond Certificate to the Principal Paying Agent together with a Certificate from Cedel Bank, societe anonyme ("Cedel") or Morgan Guaranty Trust Company of New York, Brussels office as operator of the Euroclear System ("Euroclear") substantially to the following effect:
CERTIFICATE OF CLEARING SYSTEM
NORTHERN ELECTRIC FINANCE plc
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020 (the "Bonds")
Common Code: ISIN:
This is to certify that, based solely on certificates we have received in
writing, by tested telex or by electronic transmission, from member
organisations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organisations") substantially
in the form set out in the temporary Global Bond Certificate representing Bonds
(the form of which is set out in Part II of Schedule 3 to the Master Trust Deed
constituting the Bonds), as of the date hereof [ ] principal amount of the Bonds
(i) is owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(l)(v) ("financial institutions")
purchasing for their own account or for resale, or (b) United States persons who
acquired the Bonds through foreign branches of United States financial
institutions and who hold the Bonds through such United States financial
institutions on the date hereof (and, in either case (a) or (b), each such
United States financial institution has agreed, on its own behalf or through its
agent, that we may advise the Issuer or the Issuer's agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign
financial institutions described in (iii) above (whether or not also described
in (i) or (ii) above) have certified that they have not acquired the Bonds for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the Bonds represented by the temporary Global Bond Certificate excepted in such certificates and (ii) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisation with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorise you to produce this certificate to any interested party in such proceedings.
Dated: *
Yours faithfully,
[Cedel Bank, societe anonyme]
or
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels office,
as operator of the Euroclear System]
By:
* To be dated no earlier than the Exchange Date.
Any person appearing in the records maintained by Cedel or Euroclear as entitled to any interest in Bonds represented by this temporary Global Bond Certificate shall be entitled to require the exchange of this temporary Global Bond Certificate for (an) individual Certificate(s) representing such Bonds in bearer form by delivering or causing to be delivered to Cedel or Euroclear a certificate in substantially the following form (copies of which certificate will be available at the office of Cedel in Luxembourg and Euroclear in Brussels and at the specified office of each of the Paying Agents):
"CERTIFICATE OF CLEARING SYSTEM PARTICIPANT
NORTHERN ELECTRIC FINANCE plc
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020 (the "Bonds")
Common Code: ISIN:
To: [Cedel Bank, societe anonyme] [Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System]
This is to certify that, as of the date hereof, and except as set forth below,
the Bonds held by you for our account (i) are owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States persons that are (a) foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section l.165-12(c)(l)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) United States persons who acquired the Bonds
through foreign branches of United States financial institutions and who hold
the Bonds through such United States financial institutions on the date hereof
(and, in either case (a) or (b), each such United States financial institution
hereby agrees, on its own behalf or through its agent, that you may advise the
Issuer or the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and in addition, if an owner of Bonds is a United States or foreign financial
institution described in (iii) above (whether or not also described in (i) or
(ii) above), this is to certify further that such financial institution has not
acquired the Bonds for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to that date on which you intend to submit your certificate relating to the Bonds held by you for our account in accordance with your documented procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certificate applies as of such date.
This certificate excepts and does not relate to [ ] principal amount of the Bonds in respect of which we are not able to certify and as to which we understand exchange and delivery of individual Certificates representing Bonds (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.
We understand that this certificate is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorise you to produce this certificate to any interested party in such proceeding.
Dated: *
By:
[Name of person giving certificate] as, or as
agent for, the beneficial owner(s) of the
Bonds in respect of which this certificate is issued.
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* To be dated no earlier than the fifteenth day prior to the Exchange Date."
Until the exchange of this temporary Global Bond Certificate for individual Certificates representing Bonds pursuant to the foregoing provisions, no person as aforesaid shall (except as stated herein) be entitled to receive any payment by way of principal or interest in respect of the Bonds represented by this temporary Global Bond Certificate (unless, upon due presentation of this temporary Global Bond Certificate for exchange, delivery of any individual
Certificate representing Bonds shall be improperly withheld or refused) or to receive (an) individual Certificate(s) representing Bonds which he would otherwise be entitled to receive.
Upon any exchange of this temporary Global Bond Certificate for individual Certificates representing Bonds the portion of the principal amount represented by this temporary Global Bond Certificate in respect of which such exchange shall be effected shall be endorsed by the Principal Paying Agent on the Schedule of exchanges for individual Certificates hereon, whereupon the principal amount represented by this temporary Global Bond Certificate shall be reduced for all purposes by the amount of such portion.
Subject to the second preceding paragraph, no provisions of this temporary Global Bond Certificate shall alter or impair the obligation of the Issuer to pay the principal and interest in respect of the Bonds when due in accordance with the Trust Deed or the obligations of the Guarantor under the Trust Deed.
This temporary Global Bond Certificate is governed by and shall be construed in accordance with English law.
This temporary Global Bond Certificate shall not be valid or become obligatory for any purpose until signed on behalf of the Issuer and the Guarantor and authenticated by or on behalf of the Principal Paying Agent.
Dated:
In witness whereof the Issuer and the Guarantor have caused this temporary Global Bond Certificate to be signed in facsimile on their respective behalves.
Northern Electric Finance plc Northern Electric plc
By: By:
Director Director
By: By:
Director Director
|
Certificate of Authentication
This temporary Global Bond Certificate is authenticated by or on behalf of the Principal Paying Agent.
By:
Authorised Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE CODE.
[NEITHER THE ISSUER NOR THE GUARANTOR HAS BEEN OR WILL BE REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940.]
Schedule of exchanges for individual Certificates
The principal amount of the Bonds represented by this temporary Global Bond Certificate has been reduced as a result of the issue of individual Certificates representing Bonds in respect of a portion of such principal amount in exchange as follows:
Amount of decrease Principal amount of
in principal amount Bonds represented by
of Bond represented Global Bond Notation made by or
Date of by Global Bond Certificate following on behalf of Principal
exchange Certificate such decrease Paying Agent
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Schedule of interest paid
Date of payment Amount of interest Notation made
SCHEDULE 3
PART III
FORM OF ORIGINAL COUPON 2020
On the front:
ISIN: Serial No: Coupon No:
NORTHERN ELECTRIC FINANCE plc
(Incorporated with limited liability in England and Wales - No. 3070482)
|
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020
guaranteed as to principal and interest on a joint and several basis by
NORTHERN ELECTRIC plc
(Incorporated with limited liability in England and Wales - No. 2366942)
and
NORTHERN ELECTRIC DISTRIBUTION LIMITED
(Incorporated with limited liability in England and Wales - No. 2906593)
Coupon for [ ]due on 199[6/7/8/9/2000/1/2/3/4/5/6/7/8/9/10/1l/ 12/13/14/15/16/17/18/19/20].
This Coupon relates to interest payable on (pound)[1,000/l0,000/l00,000]
[(One/Ten/One Hundred Thousand)] principal amount of the Bonds designated as
specified in the title (the "Bonds") of Northern Electric Finance plc (the
"Issuer") constituted by a Master Trust Deed dated 16th October, 1995 between
the Issuer, Northern Electric plc ("NE" and, together with Northern Electric
Distribution Limited, the "Guarantors") and The Law Debenture Trust Corporation
p.l.c. as the Trustee (the "Trust Deed", which expression includes all deeds
supplemental to such Trust Deed).
This Coupon is payable to bearer (subject to the Trust Deed, including the Conditions endorsed on the Certificate representing the Bonds to which this Coupon relates, which shall be binding upon the holder of this Coupon whether or not it is for the time being attached to such Certificate) at the specified offices of the Paying Agents set out on the reverse hereof (or any further or other Paying Agents or specified offices duly appointed or nominated from time to time and notified to the Bondholders).
Such interest is guaranteed by the Guarantors.
This Coupon is negotiable separately from the Bonds to which this Coupon relates.
This Coupon shall not be valid or become obligatory for any purpose until signed on behalf of the Company and authenticated by or on behalf of the Principal Paying Agent.
Dated:
In witness whereof the Company and NE have caused this Coupon to be signed in facsimile on their respective behalves.
Northern Electric Finance plc Northern Electric plc
By: By:
Director Director
By: By:
Director Director
|
Certificate of Authentication
This Coupon is authenticated by or on behalf of the Principal Paying Agent
By:
Authorised Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE CODE.
[NEITHER THE ISSUER NOR THE GUARANTORS HAVE BEEN OR WILL BE REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940.]
On the back:
Details of Paying Agents
SCHEDULE 3
PART IV
FORM OF ORIGINAL TALON 2020
On the front:
NORTHERN ELECTRIC FINANCE plc
(Incorporated with limited liability in England and Wales - No. 3070482)
(pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020
guaranteed as to principal and interest on a joint and several basis by
NORTHERN ELECTRIC plc
(Incorporated with limited liability in England and Wales - No. 2366942)
and
NORTHERN ELECTRIC DISTRIBUTION LIMITED
(Incorporated with limited liability in England and Wales - No. 2906593)
Talon relating to(pound)[1,000/10,000/100,000] principal amount of Bonds
On and after ____________, 200_ further Coupons will be issued at the specified office of any of the Paying Agents set out on the reverse hereof (and/or any other or further Paying Agents and/or specified offices as may from time to time be duly appointed and notified to the Bondholders) upon production and surrender of this Talon.
If the Bond to which this Talon appertains shall become due and payable or shall have been redeemed or cancelled before the date for presentation of this Talon, this Talon shall be void and no further Coupons will be issued in respect thereof.
This Talon shall not be valid or become obligatory for any purpose until signed on behalf of the Company and the Guarantors and authenticated by or on behalf of the Principal Paying Agent.
Dated:
In witness whereof the Company and NE have caused this Talon to be signed in facsimile on their respective behalves.
Northern Electric Finance plc Northern Electric plc
By: By:
Director Director
By: By:
Director Director
|
Certificate of Authentication
This Talon is authenticated by or on behalf of the Principal Paying Agent
By:
Authorised Signatory
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(A) OF THE UNITED STATES INTERNAL REVENUE CODE.
[NEITHER THE ISSUER NOR THE GUARANTORS HAVE BEEN OR WILL BE REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940.]
On the back:
Details of Paying Agents
SCHEDULE 4
TERMS AND CONDITIONS OF THE BONDS
The (pound)100,000,000 8.875 per cent. Guaranteed Bonds due 2020 (the "Bonds", which expression shall in these Terms and Conditions, unless the context otherwise requires, include any further bonds issued pursuant to Condition 17 and forming a single series with the Bonds) of Northern Electric Finance plc (the "Issuer") are constituted by a master trust deed dated 16th October, 1995 made between the Issuer, Northern Electric plc ("NE") and The Law Debenture Trust Corporation plc (the "Trustee", which expression shall include all persons for the time being the trustee or trustees under the Trust Deed (as defined below)) as trustee for the holders of the Bonds (the "Bondholders") as modified and restated by a first supplemental trust deed dated 27th September, 2001 made between the Issuer, NE, Northern Electric Distribution Limited ("NEDL" and, together with NE, the "Guarantors" and each a "Guarantor") and the Trustee (together, the "Trust Deed", which expression shall wherever the context so admits include any other deed supplemental thereto). The issue of the Bonds was authorised by a resolution of the board of directors of the Issuer passed on 9th October, 1995. The giving of the guarantee by NE was authorised by a written resolution of the board of directors of NE passed on 14th September, 1995 appointing a committee of the board for the purposes of the giving of the guarantee and by a resolution of such duly appointed committee of the board of directors of NE passed on 9th October, 1995. The giving of the guarantee by NEDL was authorised by a written resolution of the board of directors of NEDL passed on 26th September, 2001. The Bonds are listed on the London Stock Exchange plc (the "London Stock Exchange"). The statements in these Terms and Conditions include summaries of, and are subject to, the detailed provisions of and definitions in the Trust Deed. Copies of the Trust Deed and of an agency agreement dated 16th October, 1995 (the "Agency Agreement") made between the Issuer, NE, Barclays Bank PLC, as principal paying agent (the "Principal Paying Agent", which expression shall include any successor), the other paying agents named therein (together with the Principal Paying Agent, the "Paying Agents", which expression shall include any additional or successor paying agents) and the Trustee are available for inspection during normal business hours by the Bondholders and the holders of the interest coupons appertaining to the Bonds (respectively, the "Couponholders" and the "Coupons") at the registered office for the time being of the Trustee, being at Fifth Floor, 100 Wood Street, London EC2V 7EX and at the specified office of each of the Paying Agents. The Bondholders and the Couponholders are entitled to the benefit of, and are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the Agency Agreement.
1. Form, Denominations and Title
The Bonds are in bearer form, serially numbered, in the denominations of (pound)1,000, (pound)10,000and (pound)100,000 each with Coupons and one Talon for further Coupons (a "Talon") attached on issue. Title to the Bonds and to the Coupons will pass by delivery. Bonds of one denomination may not be exchanged for Bonds of another denomination.
The Issuer, each Guarantor, any Paying Agent and the Trustee may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Bond and the holder of any Coupon as the absolute owner thereof for all purposes (whether or not the Bond or Coupon shall be overdue and notwithstanding
any notice of ownership or writing on the Bond or Coupon or any notice of previous loss or theft of the Bond or Coupon).
2. Status and Guarantee
The Bonds and the Coupons are direct, unconditional and, subject to the provisions of Condition 3, unsecured obligations of the Issuer and, subject as aforesaid, rank and will rank pari passu, without any preference among themselves, with all other outstanding unsecured and unsubordinated obligations of the Issuer, present and future, but, in the event of insolvency of the Issuer, only to the extent permitted by applicable laws relating to creditors' rights.
The Guarantors have, in the Trust Deed, unconditionally and irrevocably guaranteed on a joint and several basis the due and punctual payment of the principal of and interest on the Bonds as and when the same shall become due and payable together with any additional amounts payable pursuant to Condition 8 and all other moneys payable under the Trust Deed. The obligations of each Guarantor under the terms of its guarantee constitute direct, unconditional and, subject to the provisions of Condition 3, unsecured obligations of such Guarantor and such obligations rank and will rank pari passu with all other outstanding unsecured and unsubordinated obligations of the relevant Guarantor, present and future, but, in the event of insolvency of the relevant Guarantor, only to the extent permitted by applicable laws relating to creditors' rights.
3. Negative Pledge
So long as any of the Bonds remains outstanding (as defined in the Trust Deed) each of the Issuer and each Guarantor will ensure that no Relevant Indebtedness of the Issuer, either Guarantor or any Distribution Subsidiary (as defined below) or of any other person and no guarantee by the Issuer, either Guarantor or any Distribution Subsidiary of any Relevant Indebtedness of any other person will be secured by a mortgage, charge, lien, pledge or other security interest (each a "Security Interest") upon, or with respect to, any of the present or future business, undertaking, assets or revenues (including any uncalled capital) of the Issuer, either Guarantor or any Distribution Subsidiary unless the Issuer or the relevant Guarantor, as the case may be, shall, before or at the same time as the creation of the Security Interest, take any and all action necessary to ensure that:
(a) all amounts payable by the Issuer under the Bonds, the Coupons and the Trust Deed or, as the case may be, the obligations of the relevant Guarantor under its guarantee referred to in Condition 2 are secured to the satisfaction of the Trustee equally and rateably with the Relevant Indebtedness or guarantee of Relevant Indebtedness, as the case may be, by such Security Interest; or
(b) such other Security Interest or guarantee or other arrangement
(whether or not including the giving of a Security Interest)
is provided in respect of all amounts payable by the Issuer
under the Bonds, the Coupons and the Trust Deed or, as the
case may be, in respect of the obligations of the relevant
Guarantor under its guarantee referred to in Condition 2
either (i) as the Trustee shall in its absolute discretion
deem not materially less beneficial to the interests of the Bondholders or (ii) as shall be approved by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders,
save that the Issuer, either Guarantor or any Distribution Subsidiary may create
or have outstanding a Security Interest in respect of any of its Relevant
Indebtedness and/or any guarantees given by the Issuer, either Guarantor or any
Distribution Subsidiary in respect of any Relevant Indebtedness of any other
person (without the obligation to provide a Security Interest or guarantee or
other arrangement in respect in respect of the Bonds, the Coupons and the Trust
Deed or, as the case may be, the obligations of the relevant Guarantor under the
said guarantee as aforesaid) where such Relevant Indebtedness has an initial
maturity falling not earlier than 31st December, 2005 and is of a maximum
aggregate amount outstanding at any time not exceeding the greater of
(pound)20,000,000 and 20 per cent. of the Consolidated Tangible Net Worth (as
defined below).
For the purposes of these Terms and Conditions:
(a) "Consolidated Tangible Net Worth" at any particular time the aggregate of the amount paid up on NE's issued share capital and the consolidated distributable and non-distributable reserves of the Group (as shown in the most recently published audited consolidated financial statements of the Group), after:
(i) deducting the total of any debit balance on the profit and loss account and the book value of any intangible assets including but not limited to goodwill; and
(ii) excluding any minority interests in Subsidiary Undertakings;
but adjusted as may be necessary in respect of any variation in the paid-up share capital or share premium account of the Group since the date of that balance sheet and further adjusted as may be necessary to reflect any change since the date of that balance sheet in the Subsidiary Undertakings comprising the Group.
A report by the Auditors (as defined in the Trust Deed) as to the amount of the Consolidated Tangible Net Worth at any given time shall, in the absence of manifest error, be conclusive and binding on all parties.
(b) "Distribution Licence" means either the distribution licence granted to NEDL under section 6(l)(c) of the Electricity Act 1989 as amended by section 30 of the Utilities Act 2000 or the public electricity supply licence of NE having effect as if it were a distribution licence granted to NEDL under section 6(1)(c) of the Electricity Act 1989 as amended by section 30 of the Utilities Act 2000, as appropriate.
(c) "Distribution Subsidiary" means any Subsidiary of NE which holds a Distribution Licence granted under Section 6(1)(c) of the Electricity Act 1989 as amended by the Utilities Act 2000;
(d) "Excluded Subsidiary" means any Subsidiary of the Issuer or either Guarantor (other than a Distribution Subsidiary):
(i) which is a single purpose company whose principal assets and business are constituted by the ownership, acquisition, development and/or operation of an asset;
(ii) none of whose indebtedness for borrowed money in respect of the financing of such ownership, acquisition, development and/or operation of an asset is subject to any recourse whatsoever to any member of the Group (other than another Excluded Subsidiary) in respect of the repayment thereof; and
(iii) which has been designated as such by the Issuer or either Guarantor by written notice to the Trustee, provided that the Issuer or either Guarantor, as the case may be, may give written notice to the Trustee at any time that any Excluded Subsidiary is no longer an Excluded Subsidiary, whereupon it shall cease to be an Excluded Subsidiary;
(e) "Group" means NE, NEDL, the Issuer and the Subsidiary Undertakings of NE;
(f) "Project Finance Indebtedness" means any present or future indebtedness (whether being principal, premium, interest or other amounts) to finance a project:
(i) which is incurred by an Excluded Subsidiary; or
(ii) in respect of which recourse to any member of the Group for the repayment or payment of any sum relating to such indebtedness is limited to:
(1) the assets of a single purpose company (other than a Distribution Subsidiary) the principal assets and business of which are constituted by such project and which was established for the purpose of incurring such indebtedness; or
(2) the assets of the project and the rights, revenues and insurance proceeds derived therefrom or related thereto,
with no recourse to any other assets of the Group (other than those of an Excluded Subsidiary);
(g) "Relevant Indebtedness" means any present or future indebtedness (whether being principal, premium, interest or other amounts) in the form of or represented by notes, bonds, debentures, debenture stock, loan stock or other securities, whether issued for cash or in whole or in part for a consideration other than cash, and which, with the agreement of the person issuing the same are quoted, listed or ordinarily dealt in on any stock exchange or recognised over-the-counter or other securities market, but shall not in any event include Project Finance Indebtedness;
(h) "Subsidiary" means a subsidiary within the meaning of Section 736 of the Companies Act 1985;
(i) "Subsidiary Undertaking" shall have the meaning given to it by
Section 258 of the Companies Act 1985 (but shall exclude any
undertakings (as defined in the Companies Act 1985) whose
accounts are not included in the then latest published audited
consolidated accounts of NE, nor (in the case of an
undertaking which has first become a subsidiary undertaking of
a member of the Group since the date as at which any such
audited accounts were prepared) would its accounts have been
so included or consolidated if it had become so on or before
that date); and
(j) any reference to an obligation being guaranteed shall include a reference to an indemnity being given in respect of the obligation.
4. Interest
The Bonds bear interest from (and including) 16th October, 1995 at the rate of 8.875 per cent. per annum, payable annually in arrear on 16th October in each year (each an "Interest Payment Date").
Each Bond will cease to bear interest from its due date for redemption unless, upon due presentation, payment of the principal in respect of the Bond is improperly withheld or refused or unless default is otherwise made in respect of such payment, in which event interest shall continue to accrue as provided in the Trust Deed.
When interest is required to be calculated in respect of a period of less than a full year, it shall be calculated on the basis of a 360-day year consisting of 12 months of 30 days each and, in the case of an incomplete month, the number of days elapsed.
5. Payments and exchange of Talons
Payments of principal in respect of each Bond will only be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Bond at the specified office of any of the Paying Agents. Payments of interest due on the Bonds on an Interest Payment Date will be made against presentation and surrender (or, in the case of part payment only, endorsement) of the relevant Coupons at the specified office of any of the Paying Agents. Each such payment will be made at the specified office of any Paying Agent, at the option of the holder, by sterling cheque drawn on a branch
of, or by transfer to a sterling account maintained by the payee with, a bank in the City of London, subject in all cases to any applicable fiscal or other laws and regulations, but without prejudice to the provisions of Condition 8.
Each Bond must be presented for payment together with all unmatured Coupons appertaining thereto failing which the full amount of any missing unmatured Coupon (or, in the case of payment not being made in full, that proportion of the full amount of the missing unmatured Coupons which the amount so paid bears to the total amount due) appertaining thereto will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner mentioned above against presentation and surrender (or, in the case of part payment only, endorsement) of such missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 8) in respect of the relevant Bond (whether or not such Coupon would otherwise have become void pursuant to Condition 9), or, if later, five years after the date on which such Coupon would have become due, but not thereafter.
A holder shall be entitled to present a Bond or Coupon for payment only on a Presentation Date and shall not be entitled to any further interest or other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 9):
(a) is or falls after the relevant due date but, if the due date is not or was not a Business Day in the City of London, is or falls after the next following such Business Day; and
(b) is a Business Day in the place of the specified office of the Paying Agent at which the Bond or Coupon is presented for payment and, in the case of payment by transfer to a sterling account in the City of London as referred to above, in the City of London.
"Business Day" means, in relation to any place, a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in that place.
When making payments to Bondholders or Couponholders, fractions of one penny will be rounded down to the nearest whole penny.
On and after the Interest Payment Date on which the final Coupon comprised in any Coupon sheet relating to a Bond matures, the Talon comprised in the Coupon Sheet relating to a Bond may be surrendered at the specified office of any Paying Agent in exchange for a further Coupon sheet (including any appropriate further Talon), subject to the provisions of Condition 9. Each Talon shall, for the purposes of these Terms and Conditions, be deemed to mature on the Interest Payment Date on which the final Coupon comprised in the relative Coupon sheet relating to the relevant Bond matures.
The names of the initial Paying Agents and their initial specified offices are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint
additional or other Paying Agents provided that it will at all times maintain at least two Paying Agents having specified offices in separate European cities previously approved in writing by the Trustee, one of which, so long as the Bonds are listed on the London Stock Exchange, shall be London or such other place as the London Stock Exchange may approve and one of which shall be outside the United Kingdom. Notice of any such termination or appointment and of any changes in the specified offices of the Paying Agents will be given to the Bondholders promptly by the Issuer in accordance with Condition 14.
6. Redemption and Purchase
(A) Unless previously redeemed or purchased and cancelled as provided below, the Issuer will redeem the Bonds at their principal amount on 16th October, 2020.
(B) The Issuer may, at any time, having given notice to the Bondholders in accordance with this Condition 6(B) (which notice shall be irrevocable), redeem the Bonds in whole or in part (but if in part, in integral multiples of (pound)l,000,000 in principal amount thereof), at the price which shall be the higher of the following, together with interest accrued up to the date of redemption:
(i) their principal amount; and
(ii) that price (the "Redemption Price"), expressed as a percentage rounded to three decimal places (0.0005 being rounded down), at which the Gross Redemption Yield on the Bonds, if they were to be purchased at such price on the third dealing day prior to the publication of the notice of redemption (or, in the case of a partial redemption, the first notice of redemption referred to below), would be equal to the Gross Redemption Yield on such dealing day of the 8 3/4
per cent. Treasury Stock 2017 or of such other United Kingdom Government Stock as the Trustee, with the advice of three leading brokers operating in the gilt-edged market and/or gilt-edged market makers, |
shall determine to be appropriate (the "Reference Stock") on the basis of the middle market price of the Reference Stock prevailing on such dealing day, as determined by Barclays Bank PLC (or such other person(s) as the Trustee may approve).
The Gross Redemption Yield on the Bonds and the Reference Stock will be expressed as a percentage and will be calculated on the basis indicated by the Joint Index and Classification Committee of the Institute and Faculty of Actuaries as reported in the Journal of the Institute of Actuaries, Vol. 105, Part 1, 1978, page 18 or on such other basis as the Trustee may previously approve in writing.
In the case of a redemption of all of the Bonds pursuant to this Condition 6(B), notice will be given to the Bondholders by the Issuer in accordance with Condition 14 once not less than 30 nor more than 60 days before the date fixed for redemption and will specify the date fixed for redemption and the redemption price.
In the case of a partial redemption of Bonds, Bonds to be redeemed will be selected individually by lot in such place as the Trustee may previously approve in writing and in such manner as the Trustee shall deem to be appropriate and fair without involving any part of a Bond, not more than 65 days before the date fixed for redemption. In the case of a partial redemption of the Bonds pursuant to this Condition 6(B), notice will be so given to the Bondholders by the Issuer in accordance with Condition 14 twice, first not less than 80 nor more than 95 days, and secondly not less than 30 nor more than 60 days, before the date fixed for redemption. Each notice will specify the date fixed for redemption and the redemption price, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of Bonds previously called (in whole or in part) for redemption and not presented for payment and the aggregate principal amount of Bonds which will be outstanding after the partial redemption. In addition the second such notice will specify the serial numbers of the Bonds called for redemption.
Upon the expiry of any such notice as is referred to in this Condition
6(B), the Issuer shall be bound to redeem the Bonds to which the notice refers
at the relevant redemption price at the date of such redemption together with
interest accrued to but excluding such date.
(C) If as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 10th October, 1995, the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 8 (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall, in the absence of manifest error, accept such certificate and opinion as sufficient evidence thereof) of (i) a certificate signed by two directors of the Issuer on behalf of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer taking reasonable measures available to it and (ii) an opinion in a form satisfactory to the Trustee of independent legal advisers of recognised standing to whom the Trustee shall have no reasonable objection to the effect that such amendment or change has occurred (irrespective of whether such amendment or change is then effective)), the Issuer may at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 14 (which notice shall be irrevocable), redeem all the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 6(B) prior to any notice being given under this Condition 6(C)) but not some only, at their principal amount together with interest (if any) accrued to (but excluding) the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer would be required to pay such additional amounts were a payment in respect of the Bonds then due.
Upon expiry of any such notice as is referred to in this Condition 6(C) (and subject as provided above), the Issuer shall be bound to redeem all the Bonds at their principal amount together with interest accrued to (but excluding) the redemption date.
(D) The Issuer, either Guarantor or any of their respective Subsidiaries may at any time purchase Bonds together with unmatured Coupons and
Talons in any manner and at any price in the open market or by private treaty. If purchases are made by tender, tenders must be available to all Bondholders alike. Bonds purchased by the Issuer, either Guarantor or any of their respective Subsidiaries may be held or reissued or resold or surrendered for cancellation.
(E) All Bonds which are redeemed will forthwith be cancelled (together with all relative unmatured Coupons and Talons attached to or surrendered with the Bonds) and may not be reissued or resold.
(F) While any Bonds are held by the Issuer, either Guarantor or any of their respective Subsidiaries, such Bonds shall not entitle the holder to vote at, or to be counted in the quorum for, any meeting of Bondholders and, for the purposes of the provisions of the Trust Deed concerning meetings of Bondholders, will not be regarded as being in issue.
7. Redemption at the Option of Bondholders
(A) For the purposes of these Terms and Conditions:
(i) "independent financial adviser" means a financial adviser appointed by NEDL and previously approved in writing by the Trustee (such approval not to be unreasonably withheld or delayed) or, if NEDL shall not have appointed such an adviser within 21 days of becoming aware of the occurrence of a Restructuring Event and the Trustee is indemnified to its satisfaction against the costs of such adviser, appointed by the Trustee following consultation with NEDL;
(ii) "Investment Grade Rating" means a rating of at least investment grade BBB- in the case of Standard & Poor's Rating Services, a division of the McGraw-Hill Companies Inc. and Baa3 in the case of Moody's Investors Services Limited or their respective equivalents for the time being;
(iii) "Negative Certification" means a certificate given in writing to the Trustee by an independent financial adviser that a Restructuring Event will be or is, in its opinion, materially prejudicial to the interests of the Bondholders;
(iv) A "Negative Rating Event" shall be deemed to have occurred if (X) NEDL does not, either prior to or not later than 14 days after the date of a Negative Certification in respect of the relevant Restructuring Event, seek, and thereupon use all reasonable endeavours to obtain, a rating of the Bonds or any other unsecured and unsubordinated debt of NEDL (or of any Subsidiary of NEDL (including, without limitation, the Issuer) and which is guaranteed on an unsecured and unsubordinated basis by NEDL) having an initial maturity of five years or more from a Rating Agency or (Y) if NEDL does so seek and use such endeavours but it is unable, as a result of such Restructuring Event, to obtain the Investment Grade Rating (and, in this definition, "seek" shall include procuring the relevant Subsidiary to seek);
(v) A "Put Event" occurs on the date of the last to occur
of all of the following (aa) a Restructuring Event,
(bb) either a Rating Downgrade or, as the case may
be, a Negative Rating Event and (cc) the relevant
Negative Certification;
(vi) "Rating Agency" means Standard & Poor's Rating Services, a Division of the McGraw-Hill Companies Inc. or any of its subsidiaries and their successors or Moody's Investors Service Limited or any of its subsidiaries and their successors or any rating agency substituted for either of them (or any permitted substitute of them) by NEDL from time to time with the prior written approval of the Trustee (such approval not to be unreasonably withheld or delayed);
(vii) Following a Restructuring Event, a "Rating Downgrade" shall be deemed to have occurred in respect of that Restructuring Event if the then current rating assigned to the Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of NEDL or by its own volition) is withdrawn or reduced from the Investment Grade Rating or, if the Rating Agency shall then have already rated the Rated Securities below the Investment Grade Rating, the rating is lowered one full rating category;
(viii) "Rated Securities" means the Bonds, if at any time and for so long as they shall have a rating from a Rating Agency, and otherwise any other unsecured and unsubordinated debt of NEDL (or of any Subsidiary of NEDL (including, without limitation, the Issuer) and which is guaranteed on an unsecured and unsubordinated basis by NEDL) having an initial maturity of five years or more which is rated by a Rating Agency;
(ix) "Restructuring Event" means the occurrence of any one or more of the following events:
(A) (aa) The Gas and Electricity Markets
Authority which expression shall in these
Terms and Conditions include any other
competent authority) (or any successor)
giving the Issuer written notice of
revocation of the Distribution Licence (bb)
NEDL agreeing in writing with the Secretary
of State for Trade and Industry (or any
successor) to any revocation or
surrender of the Distribution Licence or
(cc) any legislation (whether primary
or subordinate) being enacted terminating
or revoking the Distribution Licence,
except in any such case in circumstances
where a licence or licences on
substantially no less favourable terms
is or are granted to NEDL or a
wholly-owned Subsidiary of NEDL (the
"Relevant Subsidiary") and in the case of
such Relevant Subsidiary at the time of such
grant it either executes in favour of the
Trustee an unconditional and irrevocable guarantee in respect of the Bonds in such form as the Trustee may previously approve in writing (such approval not to be unreasonably withheld or delayed) or becomes the principal debtor under the Bonds in accordance with Condition 12; or
(B) any modification (other than a modification which is of a formal, minor or technical nature) being made to the terms and conditions of the Distribution Licence on or after the Effective Date (as defined in the First Supplemental Trust Deed) unless the modified terms and conditions are certified by two directors of NEDL to be not materially less favourable to the business of NEDL; or
(C) any legislation (whether primary or
subordinate) is enacted which removes,
qualifies or amends (other than an amendment
which is of a formal, minor or technical
nature) the duties of the Secretary of
State for Trade and Industry (or any
successor) and/or the Gas and Electricity
Markets Authority (or any successor) under
Section 3Aof the Electricity Act 1989 (as
amended) as in force on the Effective Date,
unless two directors of NEDL certify that
such removal, qualification or amendment
does not have a materially adverse effect
on the financial condition of NEDL.
(x) "Restructuring Period" means:
(A) if at the time a Restructuring Event occurs there are Rated Securities, the period of 90 days starting from and including the day on which that Restructuring Event occurs; or
(B) if at the time a Restructuring Event occurs
there are no Rated Securities, the period
starting from and including the day on which
that Restructuring Event occurs and ending
on the day 90 days following the later of
(aa) the date on which NEDL shall seek to
obtain a rating pursuant to Condition
7(A)(iv) prior to the expiry of the 14 days
referred to in the definition of Negative
Rating Event and (bb) the date on which a
Negative Certification shall have been given
to NEDL in respect of that Restructuring
Event; and
(xi) A Rating Downgrade or a Negative Rating Event or a non-Investment Grade Rating shall be deemed not to have occurred as a result or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating or, where applicable, declining to assign a rating of at least investment made as provided in Condition 7 does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstances comprised in
or arising as a result of the applicable Restructuring Event.
The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and until it shall have actual knowledge or express notice in accordance with the Trust Deed to the contrary the Trustee may assume that no Restructuring Event, Negative Rating Event or other such event has occurred.
(B) If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and prior to the commencement of or during the Restructuring Period an independent financial adviser shall have certified in writing to the Trustee that such Restructuring Event will not be or is not, in its opinion, materially prejudicial to the interests of the Bondholders, the following provisions of this Condition 7 shall cease to have any further effect in relation to such Restructuring Event.
(C) If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and (subject to Condition 7(B)):
(X) within the Restructuring Period, either:
(i) if at the time such Restructuring Event occurs there are Rated Securities a Rating Downgrade in respect of such Restructuring Event also occurs; or
(ii) if at such time there are no Rated Securities, a Negative Rating Event also occurs; and
(Y) an independent financial adviser shall have given a Negative Certification,
then, unless at any time the Issuer shall have given a notice in respect of his Bond under Condition 6(B) or under Condition 6(C), in each case expiring prior to the Put Date (as defined below) each Bondholder shall have the option (the "Put Option") to require the Issuer or, failing the Issuer, either Guarantor, to redeem or, at the option of the Issuer or the relevant Guarantor, as applicable, purchase (or procure the purchase of) that Bond on the Put Date at its principal amount together with (or, where purchased, together with an amount equal to) interest (if any) accrued to (but excluding) the Put Date.
A Restructuring Event shall be deemed not to be materially prejudicial to the interests of the Bondholders if, notwithstanding the occurrence of the Rating Downgrade, the rating assigned to the Rated Securities by any Rating Agency (as defined below) is subsequently increased to the Investment Grade Rating prior to any Negative Certification being given.
Any certification by an independent financial adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event will be or is materially prejudicial to the interests of the Bondholders shall, in the absence
of manifest error, be conclusive and binding on the Trustee, the Issuer, the Guarantors, the Bondholders and the Couponholders.
(D) Promptly upon the Issuer or either Guarantor becoming aware that a Put Event has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer or the relevant Guarantor shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 14 specifying the nature of the Put Event, and the procedure for exercising the Put Option.
(E) To exercise the Put Option in respect of his Bond the Bondholder must deliver such Bond to the specified office of any Paying Agent, on a day which is a Business Day (as defined in Condition 5) in the City of London and in the place of such specified office falling within the period (the "Put Period") commencing on the date the Put Event Notice is given and expiring 45 days thereafter accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any Paying Agent (a "Put Notice") and in which the Bondholder may specify a bank account complying with the requirements of Condition 5 to which payment is to be made under this Condition 7. Each Bond must be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being, the fifteenth day after the date of expiry of the Put Period failing which the full amount of any such missing Coupon will be deducted from the amount due for payment. Each amount so deducted will be paid in the manner provided in Condition 5 against presentation and surrender (or, in the case of part payment only, endorsement) of such missing Coupon at any time before the expiry of 10 years after the Relevant Date (as defined in Condition 8) in respect of the relevant Bond (whether or not the Coupon would otherwise have become void pursuant to Condition 9) or, if later, five years after the date on which such Coupon would have become due, but not thereafter. The Paying Agent to which such Bond and Put Notice are delivered shall issue to the Bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly specifies a bank account in the Put Notice to which payment is to be made, on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date, but in each case against presentation and surrender (or, as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 5. A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 1, 9, 10, 11, 13, and 15 and for certain other purposes specified in the Trust Deed, receipts issued pursuant to this Condition 7 shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date, unless such Bond has been previously redeemed or purchased in accordance with these Terms and Conditions.
8. Taxation
All payments in respect of the Bonds and the Coupons by the Issuer or, as the case may be, either Guarantor shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or
levied by or on behalf of the United Kingdom, or any political sub-division of, or any authority in, or of the United Kingdom having power to tax, unless the withholding or deduction of the Taxes is required by law. In that event, the Issuer or, as the case may be, the Guarantors will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Bonds or, as the case may be, the Coupons in the absence of the withholding or deduction except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
(a) to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of his having some connection with the United Kingdom other than the mere holding of the Bond or Coupon; or
(b) presented for payment in the United Kingdom; or
(c) presented for payment more than 30 days after the Relevant Date except to the extent that a holder would have been entitled to additional amounts on presenting the same for payment on the last day of such period of 30 days; or
(d) to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority.
As used herein, "Relevant Date" means the date on which the payment first becomes due but, if the amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 14.
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall be deemed also to refer to any additional amounts which may be payable under this Condition 8 or under any undertakings given in addition to, or in substitution for, this Condition 8 pursuant to the Trust Deed.
9. Prescription
Bonds and Coupons (which for this purpose shall not include Talons) will become void unless presented for payment within periods of 10 years and five years respectively from the Relevant Date in respect of the Bonds or, as the case may be, the Coupons, subject to the provisions of Condition 5. There shall not be included in any Coupon sheet issued upon exchange of a Talon any Coupon which would be void upon issue under this Condition or Condition 5.
10. Events of Default
The Trustee at its discretion may, and if so requested in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding or if so directed by an Extraordinary Resolution of the Bondholders shall, (but in the case of the happening of any of the events mentioned in sub-paragraphs (b), (c), (d), (e), (f), (g), (h) and (i) below, only if the Trustee shall have certified in writing to the Issuer that such event is, in its opinion, materially prejudicial to the interests of the Bondholders and subject in each case to the Trustee being indemnified by, or on behalf of, Bondholders to its satisfaction), give notice to the Issuer and the Guarantors that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed) if any of the following events (each an "Event of Default") shall have occurred (unless such Event of Default has been remedied to the satisfaction of the Trustee):
(a) if default is made for a period of 7 days or more in the payment of any principal or the purchase price due in respect of any Bond pursuant to Condition 7 or 14 days or more in the payment of any interest due in respect of the Bonds or any of them; or
(b) if the Issuer or NEDL fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation as is hereinafter mentioned will be required) such failure continues for the period of 30 days (or such longer period as the Trustee may in its absolute discretion permit) next following the service by the Trustee on the Issuer or NEDL, as the case may be, of notice requiring the same to be remedied; or
(c) if (i) any other indebtedness for borrowed money of the Issuer, NEDL or any Principal Subsidiary becomes due and repayable prior to its stated maturity by reason of an event of default (howsoever described) or (ii) any such indebtedness for borrowed money is not paid when due or, as the case may be, within any applicable grace period (as originally provided) or (iii) the Issuer, NEDL or any Principal Subsidiary falls to pay when due (or, as the case may be, within any originally applicable grace period) any amount payable by it under any present or future guarantee for, or indemnity in respect of, any indebtedness for borrowed money of any person or (iv) any security given by the Issuer, NIEDL or any Principal Subsidiary for any indebtedness for borrowed money of any person or any guarantee or indemnity of indebtedness for borrowed money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case where there is a bona fide dispute as to whether the relevant indebtedness for borrowed money or any such guarantee or indemnity as aforesaid shall be due and payable, provided that the aggregate amount of the relevant indebtedness for borrowed money in respect of which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds whichever is the greater of(pound)20,000,000 or its equivalent in other currencies (as determined by the
Trustee) or two per cent. of the Consolidated Tangible Net Worth, and for the purposes of this sub-paragraph (c), "indebtedness for borrowed money" shall exclude Project Finance Indebtedness; or
(d) if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer or NEDL, save for the purposes of amalgamation, merger, consolidation. reorganisation, reconstruction or other similar arrangement on terms previously approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or
(e) if any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of a Principal Subsidiary, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of such Principal Subsidiary and under which all the surplus assets of such Principal Subsidiary are transferred to NIEDL or any of its other Subsidiaries or (ii) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders; or
(f) if the Issuer, NEDL or any Principal Subsidiary shall cease to carry on the whole or substantially the whole of its business, save in each case for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement (i) not involving or arising out of the insolvency of the Issuer, NEDL or such Principal Subsidiary and under which all or substantially all of its assets are transferred to NEDL or any of its other Subsidiaries or (ii) under which all or substantially all of its assets are transferred to a third party or parties (whether associates or not) for full consideration by the Issuer, NEDL or a Principal Subsidiary on an arm's length basis or (iii) where the transferee is or immediately upon such transfer becomes a Principal Subsidiary or (iv) the terms of which have previously been approved in writing by the Trustee or by an Extraordinary Resolution of the Bondholders, provided that if NEDL shall transfer the Distribution Licence it shall be deemed to have ceased to carry on the whole or substantially the whole of its business (and none of exceptions (i) to (iii) shall apply) unless the transferee assumes all the Issuer's obligations under the Bonds and the Trust Deed as primary obligor or gives a guarantee in substitution for NEDE in form and substance acceptable to the Trustee in respect of the obligations of the Issuer under the Bonds and the Trust Deed; or
(g) if the Issuer, NEDL or any Principal Subsidiary shall suspend or shall threaten to suspend payment of its debts generally or shall be declared or adjudicated by a competent court to be unable or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Section 1 of the Insolvency Act 1986; or
(h) if a receiver, administrative receiver, administrator or other similar official shall be appointed in relation to the Issuer, NEDL or any Principal Subsidiary or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or an encumbrancer shall take possession of, the whole or a substantial part of the assets of any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 60 days (or such longer period as the Trustee may in its absolute discretion permit); or
(i) if the Issuer ceases to be a wholly-owned Subsidiary of NEDL or if NEDL ceases to have the right to appoint or remove a majority of the board of directors of the Issuer.
For the purposes of sub-paragraph (g) above, Section 123(l)(a) of the Insolvency Act 1986 shall have effect as if for "(pound)750" there was substituted "(pound)250,000" or such higher figure as the Gas and Electricity Markets Authority may from time to time determine by notice in writing to NEDL.
Neither the Issuer, NEDL nor any Principal Subsidiary shall be deemed to be unable to pay its debts for the purposes of sub-paragraph (g) above if any such demand as is mentioned in Section 123(1)(a) of the Insolvency Act 1986 is being contested in good faith by the Issuer, NEDL or the relevant Principal Subsidiary, as the case may be, with recourse to all appropriate measures and procedures or if any such demand is satisfied before the expiration of such period as may be stated in any notice given by the Trustee under the first paragraph of this Condition 10.
For the purposes of these Terms and Conditions:
(a) a "Principal Subsidiary" at any time shall mean a Subsidiary of the Issuer or NEDL (not being any Subsidiary of the Issuer or NEDL whose only indebtedness for borrowed money is Project Finance Indebtedness):
(A) whose (i) net profits before tax or (ii) gross assets represent 15 per cent. or more of the consolidated net profits before tax of NEDL and its Subsidiaries (the "NEDL Group") or consolidated gross assets of the NEDL Group respectively in each case as calculated by reference to the then latest audited financial statements of such Subsidiary (consolidated in the case of a company which itself has Subsidiaries and which, in the normal course, prepares consolidated accounts) and the then latest audited consolidated financial statements of the NEDL Group; or
(B) to which is transferred all or substantially all of the business, undertaking and assets of a Subsidiary of the Issuer or NEDL which immediately prior to such transfer is a Principal Subsidiary, whereupon the transferor Subsidiary shall immediately cease to be a Principal Subsidiary and the transferee Subsidiary shall immediately become a Principal Subsidiary under
the provisions of this sub-paragraph (B) (but without prejudice to the provisions of sub-paragraph (A) above);
all as more fully defined in the Trust Deed.
A report by the Auditors that in their opinion a Subsidiary of the Issuer or NEDL is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary shall, in the absence of manifest error, be conclusive and binding on the Guarantors, the Issuer, the Trustee, the Bondholders and the Couponholders; and
(b) "indebtedness for borrowed money" means any present or future
indebtedness (whether being principal, premium, interest or
other amounts) for or in respect of (i) money borrowed, (ii)
liabilities under or in respect of any acceptance credit, or
(iii) any notes, bonds, debentures, debenture stock, loan
stock or other securities offered, issued or distributed
whether by way of public offer, private placing, acquisition
consideration or otherwise and whether issued for cash or in
whole or in part for a consideration other than cash.
11. Enforcement
The Trustee may at any time, at its discretion and without notice, take such proceedings against the Issuer or either Guarantor as it may think fit to enforce the provisions of the Trust Deed, the Bonds and the Coupons but it shall not be bound to take any proceedings or any other action in relation to the Trust Deed, the Bonds or the Coupons unless (a) it shall have been so directed by an Extraordinary Resolution of the Bondholders or so requested in writing by the holders of at least one- quarter in principal amount of the Bonds then outstanding, and (b) it shall have been indemnified to its satisfaction. No Bondholder or Couponholder shall be entitled to proceed directly against the Issuer or either Guarantor unless the Trustee, having become bound so to proceed, fails so to do within a reasonable period and such failure shall be continuing.
12. Substitution
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer and the Guarantors to the substitution in place of the Issuer (or of any previous substitute under this Condition) as the principal debtor under the Bonds, the Coupons and the Trust Deed of NEDL or any Subsidiary or holding company (as defined in section 736 of the Companies Act 1985) of NEDL or any Subsidiary of such holding company, subject to (a) the Bonds continuing to be unconditionally and irrevocably guaranteed by the Guarantors (save where NE or, as the case may be, NEDL itself has been substituted for the Issuer (or any previous substitute) or where NEDL has transferred the Distribution Licence to the substituted party), (b) the Trustee being satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution, and (c) certain other conditions set out in the Trust Deed being complied with.
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer and the Guarantors to the substitution in place of NEDL (or of any previous substitute under this Condition) as guarantor of the obligations of the Issuer (or of any previous substitute under this Condition) guaranteed by NEDL under the Bonds, the Coupons and the Trust Deed of any Subsidiary or holding company (as defined in section 736 of the Companies Act 1985) of NEDL or any subsidiary of such holding company, subject to (a) the Distribution Licence having been previously transferred to the substituted party; (b) the Trustee bring satisfied that the interests of the Bondholders will not be materially prejudiced by the substitution; and (c) certain other conditions set out in the Trust Deed being complied with.
13. Replacement of Bonds and Coupons
If any Bond or Coupon is lost, stolen, mutilated, defaced or destroyed it may be replaced at the specified office of the Paying Agent in London, upon payment by the claimant of the expenses incurred in connection with the replacement and on such terms as to evidence, indemnity and security as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must be surrendered before replacements will be issued.
14. Notices
Notices to the Bondholders will be valid if published in a leading English language daily newspaper published in London or such other English language daily newspaper with general circulation in Europe as the Trustee may previously approve in writing. Any notice shall be deemed to have been given on the date of publication or, if so published more than once, on the date of the first publication. It is expected that publication will normally be made in the Financial Times. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may previously approve in writing.
Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Bondholders in accordance with this Condition 14.
15. Meetings of Bondholders, Modification, Waiver and Authorisation
(a) The Trust Deed contains provisions for convening meetings of the Bondholders to consider any matter affecting their interests, including the modification by Extraordinary Resolution of these Terms and Conditions or the provisions of the Trust Deed. The quorum at any meeting for passing an Extraordinary Resolution will be one or more persons present holding or representing a clear majority in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting one or more persons present whatever the principal amount of the Bonds held or represented by him or them, except that at any meeting, the business of which includes the modification of certain of the provisions of these Terms and Conditions and certain of the provisions of the Trust Deed, the necessary quorum for passing an Extraordinary Resolution will be one or more persons present holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, of the principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of the Bondholders will be
binding on all Bondholders, whether or not they are present at the meeting or voted thereat, and on all Couponholders.
(b) The Trustee may agree, without the consent of the Bondholders or Couponholders, to any modification (subject to certain exceptions) of, or to the waiver or authorisation of any breach or proposed breach of, any of these Terms and Conditions or any of the provisions of the Trust Deed which is not, in the opinion of the Trustee, materially prejudicial to the interests of the Bondholders or to any modification which is of a formal, minor or technical nature or to correct a manifest error.
(c) In connection with the exercise by it of any of its trusts, powers, authorities or discretions (including, without limitation, any modification, waiver, authorisation or substitution), the Trustee shall have regard to the interests of the Bondholders as a class and, in particular but without limitation, shall not have regard to the consequences of the exercise of its trusts, powers, authorities or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer, either Guarantor, the Trustee or any other person any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders or Couponholders except to the extent already provided for in Condition 8 and/or any undertaking given in addition to, or in substitution for, Condition 8 pursuant to the Trust Deed.
(d) Any modification, waiver or authorisation shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 14.
16. Indemnification of the Trustee
The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility, including provisions relieving it from taking action unless indemnified to its satisfaction.
17. Further Issues
The Issuer is at liberty from time to time without the consent of the Bondholders or Couponholders to create and issue further bonds or notes (whether in bearer or registered form) either (a) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon) and so that the same shall be consolidated and form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed or (b) upon such terms as to ranking, interest, conversion, redemption and otherwise as the Issuer may determine at the time of the issue. Any further bonds or notes which are to form a single series with the outstanding bonds or notes of any series (including the Bonds) constituted by the Trust Deed or any supplemental deed shall, and any other further bonds or notes may (with the prior written consent of the Trustee), be constituted by a
deed supplemental to the Trust Deed. The Trust Deed contains provisions for convening a single meeting of the Bondholders and the holders of bonds or notes of other series in certain circumstances where the Trustee so decides.
18. Governing Law
The Trust Deed, the Bonds and the Coupons are governed by, and will be construed in accordance with, English law.
PRINCIPAL PAYING AGENT
Barclays Bank PLC
BGSS Depositary Services
8 Angel Court
Throgmorton Street
London EC2R 7HT
OTHER PAYING AGENT
Banque Internationale a Luxembourg S.A.
69 route d'Esch
L-1470 Luxembourg
SCHEDULE 5
PROVISIONS FOR MEETINGS OF BONDHOLDERS
1. The following expressions shall have the following meanings:
"voting certificate" means a certificate in the English language issued by a Paying Agent and dated in which it is stated:
(a) that on that date Bonds (not being Bonds in respect of which a block voting instruction has been issued and is outstanding in respect of the meeting specified in such voting certificate or any adjournment of such meeting) bearing specified serial numbers were deposited with such Paying Agent (or to its order at a bank or other depositary) and that such Bonds will not be released until the earlier of:
(i) the conclusion of the meeting specified in such certificate or any adjournment of it whichever is the later; and
(ii) the surrender of the certificate to the Paying Agent which issued it; and
(b) that its bearer is entitled to attend and vote at such meeting or any adjournment of it in respect of the Bonds represented by such certificate;
"block voting instruction" means a document in the English language issued by a Paying Agent and dated in which:
(a) it is certified that Bonds (not being Bonds in respect of which a voting certificate has been issued and is outstanding in respect of the meeting specified in such block voting instruction or any adjournment of it) have been deposited with such Paying Agent (or to its order at a bank or other depositary) and that such Bonds will not be released until the earlier of:
(i) the conclusion of the meeting specified in such document or any adjournment of it whichever is the later; and
(ii) the surrender, not less than 48 hours before the time fixed for such meeting or adjournment, of the receipt for each such deposited Bond which is to be released to the Paying Agent which issued it and the notification of such surrender by such Paying Agent to the Company;
(b) it is certified that each depositor of such Bonds or a duly authorised agent on his behalf has instructed such Paying Agent that the votes attributable to his Bonds so deposited should be cast in a particular way in relation to each resolution to be put to such meeting or any adjournment of it
and that all such instructions are, during the period of 48 hours before the time fixed for such meeting or adjourned meeting, neither revocable nor subject to amendment;
(c) the total number and the serial numbers of the Bonds so deposited are listed, distinguishing with regard to each such resolution between those in respect of which instructions have been so given (i) to vote for, and (ii) to vote against, the resolution; and
(d) any person named in such document (a "proxy") is authorised and instructed by such Paying Agent to vote in respect of the Bonds so listed in accordance with the instructions referred to in sub-paragraph (c) above as set out in such document.
2. A holder of a Bond may obtain a voting certificate from a Paying Agent or require a Paying Agent to issue a block voting instruction by depositing his Bond with such Paying Agent not later than 48 hours before the time fixed for any meeting. Voting certificates and block voting instructions shall be valid until the relevant Bonds are released pursuant to paragraph 1 of this Schedule and until then the holder of any such voting certificate or (as the case may be) the proxy named in any such block voting instruction shall, for all purposes in connection with any meeting or proposed meeting of Bondholders, be deemed to be the holder of the Bonds to which such voting certificate or block voting instruction relates and the Paying Agent with which (or to the order of which) such Bonds have been deposited shall be deemed for such purposes not to be the holder of those Bonds.
3. Each of the Company and the Trustee at any time may, and the Trustee (subject to its being indemnified to its satisfaction against all costs and expenses thereby occasioned) upon a request in writing of Bondholders holding not less than one-tenth in principal amount of the Bonds for the time being outstanding shall, convene a meeting of Bondholders. Whenever any such party is about to convene any such meeting it shall forthwith give notice in writing to the other parties of the day, time and place of the meeting and of the nature of the business to be transacted at it. Every such meeting shall be held at such time and place as the Trustee may previously approve in writing.
4. At least 21 days' notice (exclusive of the day on which the notice is given and of the day on which the meeting is held) specifying the day, time and place of meeting shall be given to the Bondholders. A copy of the notice shall in all cases be given by the party convening the meeting to the other parties. Such notice shall also specify, unless in any particular case the Trustee otherwise agrees, the nature of the resolutions to be proposed and shall include a statement to the effect that Bonds may be deposited with (or to the order of) any Paying Agent for the purpose of obtaining voting certificates or appointing proxies not later than 48 hours before the time fixed for the meeting.
5. A person (who may, but need not, be a Bondholder) nominated in writing by the Trustee may take the chair at every such meeting but if no such nomination is made or if at any meeting the person nominated shall not be present within 15 minutes after the time fixed for the meeting the
Bondholders present shall choose one of their number to be chairman, failing which the Company or, failing which, a Guarantor may appoint a chairman. The chairman of an adjourned meeting need not be the same person as was chairman of the original meeting.
6. At any such meeting any one or more persons present in person holding Bonds or voting certificates or being proxies and holding or representing in the aggregate not less than one- tenth in principal amount of the Bonds for the time being outstanding shall (except for the purpose of passing an Extraordinary Resolution) form a quorum for the transaction of business and no business (other than the choosing of a chairman) shall be transacted at any meeting unless the requisite quorum be present at the commencement of business. The quorum at any such meeting for passing an Extraordinary Resolution shall (subject as provided below) be one or more persons present in person holding Bonds or voting certificates or being proxies and holding or representing in the aggregate a clear majority in principal amount of the Bonds for the time being outstanding, provided that at any meeting the business of which includes the consideration of an Extraordinary Resolution to effect any of the matters specified in the proviso to paragraph 19 of this Schedule the quorum shall be one or more persons present in person holding Bonds or voting certificates or being proxies and holding or representing in the aggregate not less than two-thirds in principal amount of the Bonds for the time being outstanding.
7. If within 15 minutes from the time fixed for any such meeting a quorum is not present the meeting shall, if convened upon the requisition of Bondholders, be dissolved. In any other case it shall stand adjourned (unless the Company and the Trustee agree that it be dissolved) for such period, not being less than 14 days nor more than 42 days, and to such place, as may be decided by the chairman. At such adjourned meeting one or more persons present in person holding Bonds or voting certificates or being proxies (whatever the principal amount of the Bonds so held or represented) shall form a quorum and may pass any resolution and decide upon all matters which could properly have been dealt with at the meeting from which the adjournment took place had a quorum been present at such meeting, provided that at any adjourned meeting the business of which includes the consideration of an Extraordinary Resolution to effect any of the modifications specified in the proviso to paragraph 19 the quorum shall be one or more persons present in person holding Bonds or voting certificates or being proxies and holding or representing in the aggregate not less than one-third in principal amount of the Bonds for the time being outstanding.
8. The chairman may with the consent of (and shall if directed by) any meeting adjourn such meeting from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place.
9. At least 10 days' notice of any meeting adjourned through want of a quorum shall be given in the same manner as for an original meeting and such notice shall state the quorum required at such adjourned meeting. It shall not, however, otherwise be necessary to give any notice of an adjourned meeting.
10. Every question submitted to a meeting shall be decided in the first instance by a show of hands and in case of equality of votes the chairman shall both on a show of hands and on a poll have a casting vote in addition to the vote or votes (if any) which he may have as a Bondholder or as a holder of a voting certificate or as a proxy.
11. At any meeting, unless a poll is (before or on the declaration of the result of the show of hands) demanded by the chairman, the Company, a Guarantor, the Trustee or by one or more persons holding one or more Bonds or voting certificates or being proxies and holding or representing in the aggregate not less than one-fiftieth in principal amount of the Bonds for the time being outstanding, a declaration by the chairman that a resolution has been carried or carried by a particular majority or lost or not carried by any particular majority shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.
12. If at any meeting a poll is so demanded, it shall be taken in such manner and (subject as provided below) either at once or after such an adjournment as the chairman directs and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded as at the date of the taking of the poll. The demand for a poll shall not prevent the continuation of the meeting for the transaction of any business other than the question on which the poll has been demanded.
13. Any poll demanded at any meeting on the election of a chairman or on any question of adjournment shall be taken at the meeting without adjournment.
14. The Company, each Guarantor and the Trustee (through their respective representatives) and their respective financial and legal advisers may attend and speak at any meeting of Bondholders. No one else may attend at any meeting of Bondholders or join with others in requesting the convening of such a meeting unless he is the holder of a Bond or a voting certificate or is a proxy.
15. At any meeting on a show of hands every person who is present in person and who produces a Certificate in respect of a Bond or a voting certificate shall have one vote and on a poll every such person and every person present in person who is a proxy shall have one vote in respect of each such principal amount as is equal to the lowest common denomination of the Bonds forming a particular series. Without prejudice to the obligations of proxies named in any block voting instruction, any person entitled to more than one vote need not use all his votes or cast all the votes to which he is entitled in the same way.
16. The proxy named in any block voting instruction need not be a Bondholder.
17. Each block voting instruction shall be deposited at the registered office of the Company, or at such other place as the Trustee shall designate or approve, not less than 24 hours before the time appointed for holding the meeting or adjourned meeting at which the proxy named in the block voting instruction proposes to vote and in default the
block voting instructions shall not be treated as valid unless the chairman of the meeting decides otherwise before such meeting or adjourned meeting proceeds to business. A notarially certified copy of each such block voting instruction and, if required by the Trustee, proof satisfactory to the Trustee of its due execution on behalf of the relevant Paying Agent shall be produced by the proxy at the meeting or adjourned meeting but the Trustee shall not thereby be obliged to investigate or be concerned with the validity of, or the authority of, the proxy named in any such block voting instruction.
18. Any vote given in accordance with the terms of a block voting instruction shall be valid even if the block voting instruction or any of the Bondholders instructions pursuant to which it was executed has been previously revoked or amended, provided that no intimation in writing of such revocation or amendment shall have been received from the relevant Paying Agent by the Company or the Trustee at its registered office or by the chairman of the meeting in each case not less than 24 hours before the time fixed for the meeting or adjourned meeting at which the block voting instruction is used.
19. A meeting of Bondholders shall, subject to the Conditions, in addition to the powers given above, but without prejudice to any powers conferred on other persons by these presents, have power exercisable by Extraordinary Resolution:
(a) to sanction any proposal by the Company or either Guarantor for any modification, abrogation, variation or compromise of, or arrangement in respect of, the rights of the Bondholders and/or the Couponholders against the Company or either Guarantor or against any of its property whether such rights shall arise under these presents or otherwise;
(b) to sanction any scheme or proposal for the exchange, substitution or sale of the Bonds for, or the conversion of the Bonds into, or the cancellation of the Bonds in consideration of, shares, stock, notes, bonds, debentures, debenture stock and/or other obligations and/or securities of the Company, either Guarantor or any other body corporate formed or to be formed, or for or into or in consideration of cash, or partly for or into or in consideration of such shares, stock, notes, bonds, debentures, debenture stock and/or other obligations and/or securities as aforesaid and partly for or into or in consideration of cash;
(c) to assent to any modification of these presents which shall be proposed by the Company, either Guarantor or the Trustee;
(d) to authorise anyone to concur in and do all such things as may be necessary to carry out and give effect to any Extraordinary Resolution;
(e) to give any authority, direction or sanction which under these presents is required to be given by Extraordinary Resolution;
(f) to appoint any persons (whether Bondholders or not) as a committee or committees to represent the interests of the
Bondholders and to confer upon such committee or committees any powers or discretions which the Bondholders could themselves exercise by Extraordinary Resolution;
(g) to approve a person proposed to be appointed as a new Trustee and to remove any Trustee;
(h) to approve the substitution of any entity for the Company (or any previous substitute) as principal debtor under these presents;
(i) to approve the substitution of any entity for either Guarantor (or any previous substitute) as guarantor under these presents; and
(j) to discharge or exonerate the Trustee from any liability in respect of any act or omission for which it may become responsible under these presents,
provided that the special quorum provisions contained in the proviso to
paragraph 6 of this Schedule and, in the case of an adjourned meeting,
in the proviso to paragraph 7 of this Schedule shall apply in relation
to any Extraordinary Resolution for the purpose of paragraph 19(b) or
(h) of this Schedule or for the purpose of making any modification to
the provisions contained in these presents which would have the effect
of:
(i) postponing the maturity of the Bonds or the dates on which interest is payable in respect of the Bonds; or
(ii) modifying the status of the Bonds; or
(iii) reducing or cancelling the principal amount of, or interest on, or other amounts in respect of or reducing the rate of interest on, the Bonds; or
(iv) changing the currency of payment of the Bonds; or
(v) modifying the provisions contained in this Schedule concerning the quorum required at any meeting of Bondholders or the majority required to pass an Extraordinary Resolution; or
(vi) amending this proviso.
20. An Extraordinary Resolution passed at a meeting of Bondholders duly convened and held in accordance with these presents shall be binding upon all the Bondholders, whether or not present at such meeting and whether or not they vote in favour, and upon all the Couponholders and each of the Bondholders and Couponholders shall be bound to give effect to it accordingly. The passing of any such resolution shall be conclusive evidence that the circumstances of such resolution justify the passing of it. The Company shall give notice of the passing of an Extraordinary Resolution to Bondholders within 14 days but failure to do so shall not invalidate the resolution.
21. The expression "Extraordinary Resolution" means a resolution passed at a meeting of Bondholders duly convened and held in accordance with these presents by a majority consisting of not less than three-quarters of the votes cast.
22. Minutes of all resolutions and proceedings at every such meeting shall be made and entered in the books to be from time to time provided at the expense of the Company for that purpose by the Company or the Trustee and any such minutes, if purporting to be signed by the chairman of the meeting at which such resolutions were passed or proceedings transacted or by the chairman of the next succeeding meeting of Bondholders, shall be conclusive evidence of the matters contained in them and until the contrary is proved every such meeting in respect of the proceedings of which minutes have been so made and signed shall be deemed to have been duly convened and held and all resolutions passed or proceedings transacted at it to have been duly passed and transacted.
23. Subject to all other provisions contained in these presents the Trustee may without the consent of the Bondholders prescribe such further regulations regarding the holding of meetings of Bondholders and attendance and voting at them as the Trustee may in its sole discretion determine, including in particular (but without prejudice to the generality of the foregoing) such regulations and requirements as the Trustee thinks reasonable:
(a) so as to satisfy itself that persons who purport to requisition a meeting in accordance with paragraph 3 of this Schedule or who purport to make any requisition to the Trustee in accordance with these presents are in fact Bondholders; and
(b) as to the form of voting certificates or block voting instructions to be issued pursuant to paragraph 1 of this Schedule so as to satisfy itself that persons who purport to attend or vote at any meeting of Bondholders are entitled to do so in accordance with these presents.
24. (a) If and whenever the Company shall have issued and have outstanding any Bonds which are not identical and do not form one single series then those Bonds which are in all respects identical shall be deemed to constitute a separate series of the Bonds and the foregoing provisions of this Schedule shall have effect subject to the following modifications:
(i) a resolution which in the opinion of the Trustee affects one series only of the Bonds shall be deemed to have been duly passed if passed at a separate meeting of the holders of the Bonds of that series;
(ii) a resolution which in the opinion of the Trustee affects more than one series of the Bonds but does not give rise to a conflict of interest between the holders of Bonds of any of the series so affected shall be deemed to have been duly passed if passed at a single meeting of the holders of the Bonds of all the series so affected;
(iii) a resolution which in the opinion of the Trustee affects more than one series of the Bonds and gives or may give rise to a conflict of interest between the holders of the Bonds of any of the series so affected shall be deemed to have been duly passed only if it shall be duly passed at separate meetings of the holders of the Bonds of each series so affected; and
(iv) to all such meetings as aforesaid all the preceding provisions of this Schedule shall mutatis mutandis apply as though references therein to Bonds and holders were references to the Bonds of the series or group of series in question and to the holders of such Bonds respectively.
(b) If the Company shall have issued and have outstanding (a) Bonds which are not denominated in sterling or (b) more than one series of Bonds denominated in sterling but in differing denominations, the following provisions shall apply. In the case of any meeting of holders of Bonds of more than one currency the principal amount of such Bonds not denominated in sterling shall (i) for the purposes of paragraph 3 of this Schedule be the equivalent in sterling at the spot rate of a bank nominated by the Trustee for the conversion of the relevant currency or currencies into sterling on the seventh dealing day (being a day (other than a Saturday or a Sunday) on which banks in London are open for normal banking business) prior to the day on which the request in writing is received by the Trustee and (ii) for the purposes of paragraphs 6, 7, 11 and 15 of this Schedule (whether in respect of the meeting, or any adjourned such meeting or any poll resulting therefrom) be the equivalent in pounds sterling at such spot rate on the seventh dealing day (as defined above) prior to the day of such meeting or, if applicable, the taking of such poll. In such circumstances, and where separate series of Bonds denominated in sterling but of different denominations are to be treated together for the purposes of this Schedule, on any poll each person present shall have one vote for every complete one pound of Bonds (converted as above) which he holds.
25. Nothing in these presents shall prevent any of the proxies named in any block voting instruction or form of proxy from being a director, managing director, officer or representative of, or otherwise connected with, the Company, either Guarantor, the Subsidiaries or any of their respective holding and associated companies.
THE COMMON SEAL of ) NORTHERN ELECTRIC FINANCE plc ) was hereunto affixed ) in the presence of: ) _________________ Director _________________ Secretary THE COMMON SEAL of ) NORTHERN ELECTRIC plc ) was hereunto affixed ) in the presence of: ) _________________ Director _________________ Secretary THE COMMON SEAL of ) NORTHERN ELECTRIC DISTRIBUTION ) LIMITED was hereto affixed ) in the presence of: ) _________________ Director _________________ Secretary THE COMMON SEAL of THE LAW ) DEBENTURE TRUST CORPORATION p.l.c. ) was hereunto affixed ) in the presence of: ) _________________ Director _________________ Assistant Trust Manager |
EXECUTED as a deed by ) NORTHERN ELECTRIC FINANCE plc ) /s/ director acting by ) and ) /s/ director/secretary EXECUTED as a deed by ) NORTHERN ELECTRIC plc ) /s/ director acting by ) and ) /s/ director/secretary EXECUTED as a deed by ) NORTHERN ELECTRIC DISTRIBUTION LIMITED ) /s/ director acting by ) and ) /s/ director/secretary |
THE COMMON SEAL of ) THE LAW DEBENTURE TRUST ) CORPORATION p.l.c. ) [seal] was affixed to this deed ) in the presence of ) /s/ Director /s/ Authorised Signature |
EXHIBIT 10.82
STOCK REDEMPTION AGREEMENT
THIS STOCK REDEMPTION AGREEMENT ("Agreement") is made as of January 8, 2004 by and between MIDAMERICAN ENERGY HOLDINGS COMPANY, an Iowa corporation ("MidAmerican"), and DAVID L. SOKOL ("Mr. Sokol").
Mr. Sokol owns a number of shares of common stock, no par value per share, of MidAmerican ("Shares"). Mr. Sokol desires to sell a portion of such Shares to MidAmerican, and MidAmerican is willing to purchase the same, in accordance with the terms and conditions of this Agreement.
Therefore, MidAmerican and Mr. Sokol agree as follows:
Section 1. Purchase and Sale of Shares. Mr. Sokol hereby agrees to sell, assign, transfer and deliver to MidAmerican 200,000 Shares (the "Purchased Shares") at $100 per share, for an aggregate purchase price of Twenty Million Dollars ($20,000,000), payable by wire transfer of immediately available funds. Mr. Sokol shall deliver appropriate stock certificates representing the Purchased Shares accompanied by irrevocable stock powers against payment therefor.
Section 2. Representations and Warranties.
(a) By Mr. Sokol. Mr. Sokol represents and warrants to MidAmerican as follows, which representations and warranties shall survive the closing of the transactions contemplated in Section 1 above:
(1) Mr. Sokol has full power and authority to enter into this Agreement and to perform the transactions contemplated hereby. This Agreement is binding upon and is enforceable against Mr. Sokol in accordance with its terms.
(2) Mr. Sokol owns and has good, valid and marketable title to the Purchased Shares, free and clear of any and all transfer restrictions, claims, liens, encumbrances, rights of third parties or other restrictions whatsoever, and pursuant to Section 1 above shall transfer such unrestricted title to the Purchased Shares to MidAmerican.
(3) The execution and delivery of this Agreement by Mr. Sokol and the consummation of the transactions contemplated hereby will not result in the breach of, or constitute a default under, any contract, agreement, commitment, pledge or other instrument or obligation to which Mr. Sokol is now a party or by which Mr. Sokol or any Purchased Shares may be bound or affected.
(4) Mr. Sokol is knowledgeable in financial and business matters in general, and those relating to MidAmerican in particular, and is capable of evaluating the merits and risks of entering into this Agreement. Neither MidAmerican, nor any of its directors, officers, employees, agents or representatives, has made any statement, representation or warranty (except as expressly set forth herein) that in any manner influenced or was taken into account or relied upon by Mr. Sokol in deciding whether to enter into this Agreement, including, without limitation, any statement relating to MidAmerican, its business or prospects or the value of the Purchased Shares. Mr. Sokol has not relied in any manner in deciding to enter into this Agreement upon the silence or failure of MidAmerican, or its directors, officers, employees, agents or representatives, to state any matter with respect to MidAmerican, its business or prospects, or the value of the Purchased Shares. Mr. Sokol has decided to enter into this Agreement based on Mr. Sokol's independent investigation and for Mr. Sokol's own business purposes which are entirely independent of any analysis of the short or long term value or prospects of MidAmerican or the Purchased Shares. Mr. Sokol recognizes that MidAmerican and its directors, officer, employees, agents or representatives may have information regarding MidAmerican, its business and prospects, or the value of the Shares, which is, may be, or may be perceived to be material and which is not publicly available and which has not been disclosed to or is not known by Mr. Sokol. Mr. Sokol confirms that access to any such information would not have been important to his decision to sell the Purchased Shares.
(b) By MidAmerican. MidAmerican represents and warrants to Mr. Sokol as follows, which representations and warranties shall survive the closing of the transactions contemplated in Section 1 above:
(1) MidAmerican has full power and authority to enter into this Agreement and to perform the transactions contemplated hereby. This Agreement is binding upon and is enforceable against MidAmerican in accordance with its terms.
(2) In deciding to enter into this Agreement, MidAmerican did not rely on any representations or warranty of Mr. Sokol not expressly set forth herein.
Section 3. Indemnity. Mr. Sokol, on the one hand, and MidAmerican, on the other hand, shall indemnify and hold the other, and its or their (as applicable) directors, officers, employees, agents and representatives, harmless from and against any and all losses, damages and expenses (including, without limitation, settlement costs, legal fees and other expenses) arising from or relating to any breach by such party of any representation or warranty in this Agreement or any breach by such party of any covenant, agreement or obligation contained herein.
Section 4. Expenses. All fees and expenses incurred by any of the parties to this Agreement shall be borne by the party incurring such fees and expenses, and all sales, transfer or other similar taxes payable in connection with this Agreement (including, without limitation, any transfer taxes payable in connection with the sale of the Purchased Shares) will be borne by the party incurring such taxes.
Section 5. Implementation of Agreement. MidAmerican and Mr. Sokol each agree to take or cause to be taken all such actions and execute and deliver or cause to be executed or delivered all such documents as the other may reasonably request in order to carry out and implement the terms and provisions of this Agreement.
Section 6. Severability. If any part of this Agreement is held to be invalid, void or unenforceable, the remaining terms and provisions of the Agreement shall remain in full force and effect.
Section 7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa, without regard to conflicts of law principles.
Section 8. Successors and Assigns; No Third Party Rights. This Agreement shall be binding upon and inure to the benefit of MidAmerican and Mr. Sokol, and their respective successors, assigns, heirs and personal representatives. As used herein, "successors and assigns" of a corporation include, but are not limited to, affiliates and any corporation or other business entity into or with which such corporation shall be merged, consolidated, liquidated or reorganized. This Agreement shall not confer upon any person other than the parties hereto, and their respective successors, assigns, heirs and personal representatives, any rights or remedies.
Section 9. Waiver. Any waiver by any party of a breach of any term or provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such term or provisions of this Agreement. The failure of a party to insist upon strict adherence to any term or provision of this Agreement in one or more instances shall not deprive that party of the right thereafter to insist upon strict adherence to that term or provision or any other term or provision of this Agreement.
Section 10. Counterparts; Headings. This Agreement may be executed in two or more counterparts, each of which when executed shall be deemed to be an original and when taken together shall constitute one and the same agreement. The headings contained in this Agreement are for reference only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 11. Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties with respect to its subject matter. This Agreement may not be modified, amended, altered or supplemented except by a written agreement signed by MidAmerican and Mr. Sokol. The terms of this Agreement are contractual, not merely recital. This Agreement is the result of negotiations between the parties, and the principle of contract construction against the drafter shall not apply to the interpretation, construction or enforcement of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By /s/Douglas L. Anderson
Douglas L. Anderson
Its Sr. V.P., General Counsel &
Corporate Secretary
/s/David L. Sokol
David L. Sokol
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EXHIBIT 10.83
CONFORMED COPY
DATED 17TH JANUARY, 1995
YORKSHIRE ELECTRICITY GROUP plc
- and -
BANKERS TRUSTEE COMPANY LIMITED
TRUST DEED
constituting
(pound)200,000,000 9 1/4 per cent. Bonds due 2020 (with authority to issue further bonds or notes)
For the Issuer:
Herbert Smith
Exchange House
Primrose Street
London EC2A 2HS
For the Trustee:
Allen & Overy
One New Change
London EC4M 9QQ
TABLE OF CONTENTS
Page
Clause
1. Definitions.........................................................1
2. Covenant to repay and to pay interest on Original Bonds............11
3. Form and issue of Original Bonds and Original Coupons..............14
4. Fees, Duties and Taxes.............................................15
5. Covenant of Compliance.............................................15
6. Cancellation of Securities and Records.............................15
7. Enforcement........................................................17
8. Proceedings, Action and Indemnification............................17
9. Application of Moneys..............................................17
10. Notice of Payments.................................................18
11. Investment by Trustee..............................................18
12. Partial Payments...................................................19
13. Covenants by the Issuer............................................19
14. Remuneration and Indemnification of Trustee........................24
15. Supplement to Trustee Act 1925.....................................25
16. Trustee's Liability................................................28
17. Trustee Contracting with Issuer....................................29
18. Waiver, Authorisation and Determination............................29
19. Holder of Definitive Bearer Security assumed to be Couponholder....30
20. Substitution.......................................................30
21. Currency Indemnity.................................................32
22. New Trustee........................................................32
23. Trustee's Retirement and Removal...................................33
24. Trustee's powers to be additional..................................33
25. Notices............................................................34
26. Governing Law......................................................34
27. Counterparts.......................................................35
Schedules
First Form of Original Global Bond.......................................36
Second Form of Original Bearer Bond.......................................46
Form of Original Coupon............................................49
Form of Original Talon.............................................50
Form of Original Registered Bond...................................52
Conditions of the Original Bonds...................................54
Third Register and transfer of Registered Securities.....................56
Fourth Provisions for meetings of Holders.................................58
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THIS TRUST DEED is made on 17th January, 1995 BETWEEN:
(l) YORKSHIRE ELECTRICITY GROUP plc, a company incorporated under the laws of England, whose registered office is at Wetherby Road, Scarcroft, Leeds LS14 3HS, England (the "Issuer"); and
(2) BANKERS TRUSTEE COMPANY LIMITED, a company incorporated under the laws of England, whose registered office is at 1 Appold Street, Broadgate, London EC2A 2HE (the "Trustee", which expression shall, wherever the context so admits, include such company and all other persons or companies for the time being the trustee or trustees of these presents) as trustee for the Holders and Couponholders (each as defined below).
WHEREAS:
(1) By resolutions of the board of directors of the Issuer passed on 15th December, 1994 and by resolutions of a duly authorised committee of the board of directors of the Issuer passed on 4th and 5th January, 1995 the Issuer has resolved to issue (pound)200,000,000 9 1/4 per cent. Bonds due 2020 to be constituted by this Trust Deed.
(2) The said Bonds in definitive form will be either in bearer form with Coupons attached or in registered form without Coupons but holders of definitive Bonds in bearer form will have the option to exchange such Bonds for definitive Bonds in registered form and vice versa, all upon and subject to the terms and conditions of these presents.
(3) The Trustee has agreed to act as trustee of these presents for the benefit of the Holders and Couponholders upon and subject to the terms and conditions of these presents.
NOW THIS TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows:
1. DEFINITIONS
(A) In these presents unless there is anything in the subject or context inconsistent therewith the following expressions shall have the following meanings:
"Agency Agreement" means, in relation to the Securities of any series, the agreement appointing the initial Paying Agents and, if applicable, Registrar and Transfer Agents in relation to such Securities and any other agreement for the time being in force appointing Successor paying agents and, if applicable, registrars or transfer agents in relation to such Securities, or in connection with their duties, the terms of which have previously been approved in writing by the Trustee, together with any agreement for the time being in force amending or modifying with the prior written approval of the Trustee any of the aforesaid agreements in relation to such Securities;
"Agent Bank" means, in relation to the Securities of any relevant series, the bank initially appointed as agent bank in relation to such Securities by the Issuer pursuant to the relative
Agent Bank Agreement or, if applicable, any Successor agent bank in relation to such Securities;
"Agent Bank Agreement" means, in relation to the Securities of any relevant series, the agreement (which may, but need not, be the relative Agency Agreement) appointing the initial Agent Bank in relation to such Securities and any other agreement for the time being in force appointing any Successor agent bank in relation to such Securities, or in connection with its duties, the terms of which have previously been approved in writing by the Trustee, together with any agreement for the time being in force amending or modifying with the prior written approval of the Trustee any of the aforesaid agreements in relation to such Securities;
"Appointee" means any attorney, manager, agent, delegate or other person appointed by the Trustee under these presents;
"Auditors" means the auditors for the time being of the Issuer or, in the event of their being unable or unwilling promptly to carry out any action requested of them pursuant to the provisions of these presents, such other firm of accountants as may be nominated or approved by the Trustee for the purposes of these presents after consultation with the Issuer where, in the opinion of the Trustee, such consultation is practicable;
"Capital and Reserves" has the meaning set out in Condition 4;
"Bearer Securities" means those of the Securities which are for the time being in bearer form;
"Cedel" means Cedel, societe anonyme;
"Conditions" means:
(i) in relation to the Original Bonds, the Conditions to be endorsed on the Original Bonds in definitive form in the form or substantially in the form set out in Part III of the Second Schedule as the same may from time to time be modified in accordance with these presents and any reference in these presents to a particular specified Condition or paragraph of a Condition shall in relation to the Original Bonds be construed accordingly; and
(ii) in relation to the Further Securities of any series, the Conditions to be endorsed on such Further Securities in definitive form in the form or substantially in the form set out or referred to in the supplemental Trust Deed relating thereto as the same may from time to time be modified in accordance with these presents and any reference in these presents to a particular specified Condition or paragraph of a Condition shall in relation to the Further Securities of any series, unless either referring specifically to a particular specified Condition or paragraph of a Condition of such Further Securities or the context otherwise requires, be construed as a reference to the provisions (if any) in the Conditions thereof which correspond to the provisions of the particular specified Condition or paragraph of a Condition of the Original Bonds;
"Couponholders" means the several persons who are for the time being holders of the Coupons;
"Coupons" means the bearer interest coupons appertaining to the Bearer Securities in definitive form or, as the context may require, a specific number thereof and includes any replacements for Coupons issued pursuant to Condition 14 and, where the context so permits, the Talons;
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System;
"Event of Default" means any of the conditions, events or acts provided in Condition 11 to be events upon the happening of which the Securities of any series would, subject only to notice by the Trustee as therein provided, become immediately due and repayable;
"Excluded Subsidiary" has the meaning set out in Condition 4;
"Extraordinary Resolution" has the meaning set out in paragraph 20 of the Fourth Schedule;
"Further Securities" means bonds or notes (whether in bearer or registered form) of the Issuer constituted by a Trust Deed supplemental to this Trust Deed pursuant to Clause 2(D) or the principal amount thereof for the time being outstanding or as the context may require a specific number thereof and includes any replacements for Further Securities issued pursuant to Condition 14 and where applicable any Global Security issued in respect thereof and, where the context requires or admits, includes the Receipts issued in respect of any Further Securities;
"Global Security" means the Original Global Bond and/or any other global bond or note issued in respect of the Further Securities of any series and includes any replacements for Global Securities issued pursuant to Condition 14;
"Holders" means the several persons who are for the time being holders of the Securities (being, in the case of Bearer Securities, the bearers thereof and, in the case of Registered Securities, the several persons whose names are entered in the register of holders of the Registered Securities as the holders thereof) and the words "holder" and "holders" and related expressions shall (where appropriate) be construed accordingly;
"indebtedness for borrowed money" has the meaning set out in Condition 4;
"Liability" means any loss, damage, cost, charge, claim, demand, expense, judgment, action, proceeding or other liability whatsoever (including, without limitation, in respect of taxes, duties, levies, imposts and other charges) and including any value added tax or similar tax charged or chargeable in respect thereof and legal fees and expenses on a full indemnity basis;
"Original Bearer Bonds" means those of the Original Bonds which are for the time being in bearer form;
"Original Bondholders" means the several persons who are for the time being holders of the Original Bonds and, where the context so requires or admits, shall include the Original Receiptholders;
"Original Bonds" means the bonds (whether in bearer or registered form) comprising the said (pound)200,000,000 9 1/4 per cent. Bonds due 2020 of the Issuer hereby constituted or the principal amount thereof for the time being outstanding or, as the context may require, a specific number thereof and includes any replacements for Original Bonds issued pursuant to Condition 14, where the context so requires or admits any Original Receipts and (except for the purposes of Clause 3) the Original Global Bond;
"Original Couponholders" means the several persons who are for the time being holders of the Original Coupons;
"Original Coupons" means the Coupons appertaining to the Original bearer Bonds;
"Original Global Bond" means the global bond in respect of the Original Bearer Bonds to be issued pursuant to Clause 3(A) in the form or substantially in the form set out in the First Schedule;
"Original Receiptholders" means the holders of the Original Receipts;
"Original Receipts" means the Receipts appertaining to the Original Bonds;
"Original Registered Bonds" means those of the Original Bonds which are for the time being in registered form;
"Original Talons" means the Talons appertaining to the Original Bearer Bonds in definitive form;
"outstanding" means in relation to the Securities all the Securities issued other than:
(a) those Securities which have been redeemed pursuant to these presents;
(b) those Securities in respect of which the date for redemption in accordance with the Conditions has occurred and the redemption moneys (including premium (if any) and all interest payable thereon) have been duly paid to the Trustee or to the Principal Paying Agent in the manner provided in the Agency Agreement (and where appropriate notice to that effect has been given to the relative Holders in accordance with Condition 15) and remain available for payment against presentation of the relevant Securities and/or Coupons;
(c) those Securities which have been purchased and cancelled in accordance with Condition 7;
(d) those Securities which have become void under Condition 10;
(e) those mutilated or defaced Securities which have been surrendered and cancelled and in respect of which replacements have been issued pursuant to Condition 14;
(f) (for the purpose only of ascertaining the principal amount of the Securities outstanding and without prejudice to the status for any other purpose of the relevant Securities) those Securities which are alleged to have been lost, stolen or destroyed and in respect of which replacements have been issued pursuant to Condition 14;
(g) any Global Security to the extent that it shall have been exchanged for another Global Security in respect of the Securities of the relevant series or for the Securities of the relevant series in definitive form pursuant to its provisions; and
(h) those Bearer Securities which have been exchanged for Registered Securities (and, where applicable, vice versa) and which have been cancelled or, if permitted by the Conditions of such Securities, are for the time being retained by or on behalf of the Issuer, in each case pursuant to the provisions of these presents;
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Holders or any of them;
(ii) the determination of how many and which Securities are for the time being outstanding for the purposes of Clause 8(A), Conditions 11, 12 and 16 and paragraphs 2, 5, 6 and 9 of the Fourth Schedule;
(iii) any discretion, power or authority (whether contained in these presents or vested by operation of law) which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of them; and
(iv) the determination by the Trustee whether any event, circumstance, matter or thing is, in its opinion, materially prejudicial to the interests of the Holders or any of them,
those Securities (if any) which are for the time being held by, for the benefit of, or on behalf of, the Issuer or any Subsidiary of the Issuer, any holding company of the Issuer or any other Subsidiary of any such holding company shall (unless and until ceasing to be so held) be deemed not to remain outstanding;
"Paying Agents" means, in relation to the Securities of any series, the several institutions (including where the context permits the Principal Paying Agent) at their respective specified offices initially appointed as paying agents in relation to such Securities by the Issuer pursuant
to the relative Agency Agreement and/or, if applicable, any Successor paying agents in relation to such Securities;
"PES Licence" has the meaning set out in Condition 8(d)(vii)(A)(aa);
"PES Subsidiary" has the meaning set out in Condition 4;
"Potential Event of Default" means any condition, event or act which, with the lapse of time and/or the issue, making or giving of any notice, certification, declaration, demand, determination and/or request and/or the taking of any similar action and/or the fulfillment of any similar condition, would constitute an Event of Default,
"Principal Paying Agent" means, in relation to the Securities of any series, the institution at its specified office initially appointed as principal paying agent in relation to such Securities by the Issuer pursuant to the relative Agency Agreement or, if applicable, any Successor principal paying agent in relation to such Securities;
"Principal Subsidiary" means at any time a Subsidiary of the Issuer (not being an Excluded Subsidiary or any other Subsidiary of the Issuer whose only indebtedness for borrowed money is Project Finance Indebtedness):
(a) whose net profits before tax attributable to the Issuer (consolidated in the case of a Subsidiary which itself has Subsidiaries and which in the normal course, prepares con- solidated accounts) or whose gross assets (consolidated in the case of a Subsidiary which itself has Subsidiaries) represent in each case (or, in the case of a Subsidiary acquired after the end of the financial period to which the then latest relevant audited consolidated accounts of the Issuer and its Subsidiaries relate, are equal to) not less than 20 per cent. of the consolidated net profits before tax attributable to the shareholders of the Issuer, or, as the case may be, consolidated gross assets, of the Issuer and its Subsidiaries taken as a whole, all as calculated respectively by reference to the then latest audited accounts (consolidated or, as the case may be, unconsolidated) of such Subsidiary and the then latest audited consolidated accounts of the Issuer and its Subsidiaries, provided that:
(i) in the case of a Subsidiary acquired after the end of the financial period to which the then latest relevant audited consolidated accounts relate, the reference to the then latest audited consolidated accounts for the purposes of the calculation above shall, until consolidated accounts for the financial period in which the acquisition is made have been prepared and audited as aforesaid, be deemed to be a reference to such first-mentioned accounts as if such Subsidiary had been shown in such accounts by reference to its then latest relevant audited accounts, adjusted as deemed appropriate by the Auditors; and
(ii) if, in the case of a Subsidiary which itself has Subsidiaries, no consolidated accounts are prepared and audited, its consolidated net profits before tax attributable to the Issuer and consolidated gross assets shall be determined on the basis of pro forma
consolidated accounts of the relevant Subsidiary and its Subsidiaries prepared and audited for this purpose by the Auditors or the auditors for the time being of the relevant Subsidiary; or
(b) to which is transferred all or substantially all of the
business, undertaking and assets of a Subsidiary of the
Issuer which immediately prior to such transfer is a Principal
Subsidiary, provided that the transferor Subsidiary shall upon
such transfer forthwith cease to be a Principal Subsidiary
and the transferee Subsidiary shall cease to be a Principal
Subsidiary pursuant to this sub-paragraph (b) on the date on
which the consolidated accounts of the Issuer and its Sub-
sidiaries for the financial period current at the date of
such transfer have been prepared and audited as aforesaid but
so that such transferor Subsidiary or such transferee Sub-
sidiary may be a Principal Subsidiary on or at any time after
the date on which such consolidated accounts have been
prepared and audited as aforesaid by virtue of the provisions
of sub-paragraph (a) above or before, on or at any time after
such date by virtue of the provisions of this sub-paragraph
(b) or sub-paragraph (c) below; or
(c) to which is transferred a business, an undertaking or assets which, taken together with the business, undertaking and assets of the transferee Subsidiary, generated (or, in the case of the transferee Subsidiary being acquired after the end of the financial period to which the then latest relevant audited consolidated accounts of the Issuer and its Sub- sidiaries relate, generate net profits before tax attributable to the Issuer equal to) not less than 20 per cent. of the con- solidated net profits before tax attributable to the share- holders of the Issuer, or represent (or, in the case afore- said, are equal to) not less than 20 per cent. of the con- solidated gross assets, of the Issuer and its Subsidiaries taken as a whole, all as calculated as referred to in sub-paragraph (a) above, provided that the transferor Sub- sidiary (if a Principal Subsidiary) shall upon such transfer forthwith cease to be a Principal Subsidiary unless immediately following such transfer its business, undertaking and assets generate (or, in the case aforesaid, generate net profits before tax attributable to the Issuer equal to) not less than 20 per cent. of the consolidated net profits before tax attributable to the shareholders of the Issuer, or its assets represent (or, in the case aforesaid, are equal to) not less than 20 per cent. of the consolidated gross assets, of the Issuer and its Subsidiaries taken as a whole, all as calculated as referred to in sub-paragraph (a) above, and the transferee Subsidiary shall cease to be a Principal Subsidiary pursuant to this sub-paragraph (c) on the date on which the consolidated accounts of the Issuer and its Subsidiaries for the financial period current at the date of such transfer have been prepared and audited but so that such transferor Subsidiary or such transferee Subsidiary may be a Principal Subsidiary on or at any time after the date on which such consolidated accounts have been prepared and audited as aforesaid by virtue of the provisions of sub- paragraph (a) above or before, on or at any time after such date by virtue of the provisions of this sub-paragraph (c) or sub-paragraph (b) above,
Provided that, in calculating the consolidated net profits before tax attributable to the shareholders of the Issuer or consolidated gross assets of the Issuer and the Subsidiaries taken as a whole, amounts in respect of minority interests shall only be excluded if and to the
extent that such amounts have not been already excluded in the course of preparation of the relevant consolidated accounts.
For the purposes of this definition if there shall at any time not be any relevant audited consolidated accounts of the Issuer and its Subsidiaries, references thereto herein shall be deemed to refer to a consolidation by the Auditors of the relevant audited accounts of the Issuer and its Subsidiaries.
A report by the Auditors that in their opinion a Subsidiary of the Issuer is or is not or was or was not at any particular time or throughout any specified period a Principal Subsidiary shall, in the absence of manifest error, be conclusive and binding on all parties;
"Project Finance Indebtedness" has the meaning set out in Condition 4;
"Receiptholders" means the holders of the Receipts;
"Receipts" means the non-transferable receipts (if any) for Securities to be issued by Paying Agents to the Holders pursuant to Condition 8(c);
"Reference Banks" means, in relation to the Securities of any relevant series, the several banks initially appointed as reference banks in relation to such Securities by the Issuer and referred to in the Conditions of such Securities and/or, if applicable, any Successor reference banks in relation to such Securities;
"Registered Securities" means those of the Securities which are for the time being in registered form;
"Registrar" means, in relation to the Securities of any relevant series (being, or which are exchangeable for, Registered Securities), the institution at its specified office initially appointed as registrar in relation to such Securities by the Issuer pursuant to the relative Agency Agreement or, if applicable, any Successor registrar in relation to such Securities;
"Relevant Date" has the meaning set out in Condition 9;
"Relevant Indebtedness" has the meaning set out in Condition 4;
"repay", "redeem" and "pay" shall each include both the others and cognate expressions shall be construed accordingly;
"Restructuring Event" has the meaning set out in Condition 8(d)(vii);
"Security Interest" has the meaning set out in Condition 4;
"Securities" means, as the context may require, the Original Bonds and/or any Further Securities and/or any series thereof;
"Subsidiary" means any company which is for the time being a subsidiary (within the meaning of Section 736 of the Companies Act 1985 of Great Britain);
"Successor" means, in relation to the Agent Bank, the Principal Paying Agent, the other Paying Agents, the Reference Banks, the Registrar and the Transfer Agents, any successor to any one or more of them in relation to the Securities of the relevant series which shall become such pursuant to the provisions of these presents, the relative Agent Bank Agreement and/or the relative Agency Agreement (as the case may be) and/or such other or further agent bank, principal paying agent, paying agents, reference banks, registrar and/or transfer agents (as the case may be) in relation to such Securities as may (with the prior approval of, and on terms previously approved by, the Trustee in writing) from time to time be appointed as such, and/or, if applicable, such other or further specified offices (in the former case being within the same city as those for which they are substituted) as may from time to time be nominated, in each case by the Issuer, and (except in the case of the initial appointments and specified offices made under and specified in the Conditions, the relative Agent Bank Agreement and/or the relative Agency Agreement, as the case may be) notice of whose appointment or, as the case be) may be, nomination has been given to the relevant Holders pursuant to Clause 13(xiii) in accordance with Condition 15;
"Talons" means the talons appertaining to, and exchangeable in accordance with the provisions therein contained for further Coupons appertaining to, the Bearer Securities of any relevant series in definitive form and includes any replacements for Talons issued pursuant to Condition 14;
"The Stock Exchange" means, in relation to the Securities of any relevant series, the stock exchange or exchanges (if any) on which such Securities are quoted or listed on the issue thereof;
"these presents" means this Trust Deed and the Schedules and any Trust Deed supplemental hereto and the Schedules (if any) thereto and the Securities, the Coupons and the Conditions, all as from time to time modified in accordance with the provisions herein or therein contained;
"Transfer Agents" means, in relation to the Securities of any relevant series (being, or which are exchangeable for, Registered Securities), the institutions at their respective specified offices initially appointed as transfer agents in relation to such Securities by the Issuer pursuant to the relative Agency Agreement and/or, if applicable, any Successor transfer agents in relation to such Securities;
"Trust Corporation" means a corporation entitled by rules made under the Public Trustee Act 1906 of Great Britain or entitled pursuant to any other comparable legislation applicable to a trustee in any other jurisdiction to carry out the functions of a custodian trustee;
words denoting the singular shall include the plural and vice versa;
words denoting one gender only shall include the other genders; and
words denoting persons only shall include firms and corporations and vice versa.
(B) (i) All references in these presents to principal and/or
premium and/or interest in respect of the Securities or to any
moneys payable by the Issuer under these presents shall be
deemed to include a reference to any additional amounts which
may be payable under Condition 9 or, if applicable, under any
undertaking or covenant given pursuant to Clause 13(xv) or
Clause 20(A)(2)(ii).
(ii) All references in these presents to principal or principal
amount shall, unless the context otherwise requires, be deemed
to include the Redemption Price (as defined in Condition 7).
(iii) All references in these presents to "pounds", "sterling",
"pounds sterling" or the sign "(pound)" shall be construed as
references to the lawful currency for the time being of the
United Kingdom.
(iv) All references in these presents to any statute or any
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provision of any statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under any such modification or re-enactment.
(v) All references in these presents to guarantees or to an obligation being guaranteed shall be deemed to include respectively references to indemnities or to an indemnity being given in respect thereof.
(vi) All references in these presents to any action, remedy or method of proceeding for the enforcement of the rights of creditors shall be deemed to include, in respect of any jurisdiction other than England, references to such action, remedy or method of proceeding for the enforcement of the rights of creditors available or appropriate in such jurisdiction as shall most nearly approximate to such action, remedy or method of proceeding described or referred to in these presents.
(vii) All references in these presents to taking proceedings against the Issuer shall be deemed to include references to proving in the winding up of the Issuer.
(viii) Wherever in these presents the Issuer is required to give an opinion or make any determination, the Issuer shall, in so doing, be entitled to rely on advice from professional advisers but so that, as between the Issuer, the Trustee, the Holders and the Couponholders, the Issuer alone shall be liable as to the validity of such opinion or determination.
(ix) Unless the context otherwise requires words or expressions used in these presents shall bear the same meanings as in the Companies Act 1985 of Great Britain.
(x) In this Trust Deed references to Schedules, Clauses, sub-clauses, paragraphs and sub-paragraphs shall be construed as references to the Schedules to this Trust Deed and to the Clauses, sub-clauses, paragraphs and sub-paragraphs of this Trust Deed respectively.
(xi) In these presents tables of contents and Clause headings are included for ease of reference and shall not affect the construction of these presents.
2. COVENANT TO REPAY AND TO PAY INTEREST ON ORIGINAL BONDS
(A) THE aggregate principal amount of the Original Bonds is limited to
(pound)200,000,000.
(B) The Issuer covenants with the Trustee that it will, in accordance with these presents, on the due date for the final maturity of the Original Bonds provided for in the Conditions, or on such earlier date as the same or any part thereof may become immediately due and repayable thereunder, pay or procure to be paid unconditionally to or to the order of the Trustee in pounds sterling in London in immediately available funds the principal amount of the Original Bonds repayable on that date and shall in the meantime and until such date (both before and after any judgment or other order of a court of competent jurisdiction) pay or procure to be paid unconditionally to or to the order of the Trustee as aforesaid interest (which shall accrue from day to day) on the principal amount of the Original Bonds at the rate of 9 1/4 per cent. per annum payable (less tax, if appropriate) annually in arrear on 17th January, the first such payment to be made on 17th January, 1996 and to amount to a full year's interest PROVIDED THAT:
(i) every payment of principal or interest in respect of the Original Bearer Bonds and every payment of principal in respect of the Original Registered Bonds to or to the account of the Principal Paying Agent in the manner provided in the Agency Agreement shall operate in satisfaction pro tanto of the relative covenant by the Issuer in this Clause except to the extent that there is default in the subsequent payment thereof in accordance with the Conditions to the relevant Original Bondholders or Original Couponholders (as the case may be);
(ii) every payment of interest in respect of the Original Registered Bonds to the relevant Original Bondholders as provided in the Conditions (whether by the Issuer or the Registrar) shall operate in satisfaction pro tanto of the relative covenant by the Issuer in this Clause;
(iii) in any case where payment of principal is not made to the Trustee or the Principal Paying Agent on or before the due date, interest shall continue to accrue on the principal amount of the Original Bonds (both before and after any judgment or other order of a court of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) up to and including the date which the Trustee determines to be the date on and after which payment is to be made to the Original Bondholders in respect thereof as stated in a notice given to the Original Bondholders in accordance with
Condition 15 (such date to be not later than 30 days after the day on which the whole of such principal amount, together with an amount equal to the interest which has accrued and is to accrue pursuant to this proviso up to and including that date, has been received by the Trustee or the Principal Paying Agent);
(iv) in any case where payment of the whole or any part of the principal amount of any Original Bond is improperly withheld or refused upon due presentation thereof (other than in circumstances contemplated by proviso (iii) above) interest shall accrue on that principal amount payment of which has been so withheld or refused (both before and after any judgment or other order of a court of competent jurisdiction) at the rate aforesaid (or, if higher, the rate of interest on judgment debts for the time being provided by English law) from and including the date of such withholding or refusal up to and including the date on which, upon further presentation of the relevant Original Bond, payment of the full amount (including interest as aforesaid) in pounds sterling payable in respect of such Original Bond is made or (if earlier) the seventh day after notice is given to the relevant Original Bondholder (either individually or in accordance with Condition 15) that the full amount (including interest as aforesaid) in pounds sterling payable in respect of such Original Bond is available for payment, provided that, upon farther presentation thereof being duly made, such payment is made.
The Trustee will hold the benefit of this covenant on trust for the Original Bondholders and the Original Couponholders in accordance with these presents.
TRUSTEE'S REQUIREMENTS REGARDING PAYING AGENTS, REGISTRAR AND TRANSFER
AGENTS
(C) At any time after an Event of Default or a Potential Event of Default shall have occurred or the Securities shall otherwise have become due and repayable or the Trustee shall have received any money which it proposes to pay under Clause 9 to the Holders and/or Couponholders, the Trustee may:
(i) by notice in writing to the Issuer, the Principal Paying Agent, the other Paying Agents, the Registrar and the Transfer Agents require the Principal Paying Agent, the other Paying Agents, the Registrar and the Transfer Agents pursuant to the Agency Agreement:
(a) to act thereafter as Principal Paying Agent, Paying Agents, Registrar and Transfer Agents respectively of the Trustee in relation to payments to be made by or on behalf of the Trustee under the provisions of these presents mutatis mutandis on the terms provided in the Agency Agreement (save that the Trustee's liability under any provisions thereof for the indemnification, remuneration and payment of out-of- pocket expenses of the Paying Agents, the Registrar and the Transfer Agents shall be limited to the amounts for the time being held by the Trustee on the trusts of these presents relating to the relative Securities) and thereafter to hold all Securities and
Coupons and all sums, documents and records held by them in respect, of Securities and Coupons on behalf of the Trustee; or
(b) to deliver up all Securities and Coupons and all sums, documents and records held by them in respect of Securities and Coupons to the Trustee or as the Trustee shall direct in such notice provided that such notice shall be deemed not to apply to any documents or records which the relative Paying Agent, the Registrar or the relative Transfer Agent, as the case may be, is obliged not to release by any law or regulation; and
(ii) by notice in writing to the Issuer require it to make all
subsequent payments in respect of the Securities and Coupons
to or to the order of the Trustee and not to the Principal
Paying Agent; with effect from the issue of any such notice to
the Issuer and until such notice is withdrawn provisos (i) and
(ii) to sub-clause (B) of this Clause relating to the Original
Bonds and any similar provisos relating to any Further
Securities shall cease to have effect.
FURTHER ISSUES
(D) (i) The Issuer shall be at liberty from time to time (but
subject always to the provisions of these presents) without
the consent of the Holders or Couponholders to create and
issue further bonds or notes (whether in bearer or registered
form) either (a) ranking pari passu in all respects (or in all
respects save for the first payment of interest thereon), and
so that the same shall be consolidated and form a single
series, with the Original Bonds and/or the Further Securities
of any series or (b) upon such terms as to ranking, interest,
conversion, redemption and otherwise as the Issuer may at the
time of issue thereof determine.
(ii) Any further bonds or notes which are to be created and issued
pursuant to the provisions of paragraph (i) above so as to
form a single series with the Original Bonds and/or the
Further Securities of any series shall be constituted by a
trust deed supplemental to this Trust Deed and any other
further bonds or notes which are to be created and issued
pursuant to the provisions of paragraph (i) above may (subject
to the consent of the Trustee) be constituted by a trust deed
supplemental to this Trust Deed. In any such case the Issuer
shall prior to the issue of any further bonds or notes to be
so constituted (being Further Securities) execute and
deliver to the Trustee a trust deed supplemental to this Trust
Deed (in relation to which all applicable stamp duties or
other documentation fees, duties or taxes have been paid and,
if applicable, duly stamped or denoted accordingly) and
containing a covenant by the Issuer in the form mutatis
mutandis of Clause 2(B) in relation to the principal, premium
(if any) and interest in respect of such Further Securities
and such other provisions (whether or not corresponding to any
of the provisions contained in this Trust Deed) as the Trustee
shall require.
(iii) A memorandum of every such supplemental Trust Deed shall be
endorsed by the Trustee on this Trust Deed and by the Issuer
on its duplicate of this Trust Deed.
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(iv) Whenever it is proposed to create and issue any Further
Securities the Issuer shall give to the Trustee not less than
l4 days' notice in writing of its intention so to do stating
the amount of further bonds or notes proposed to be created
and issued.
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(E) Any Further Securities not forming a single series with the Original Bonds or Further Securities of any series shall form a separate series and accordingly, unless for any purpose the Trustee in its absolute discretion shall otherwise determine, the provisions of sub-clause (C) of this Clause and of Clauses 4 to 21 (both inclusive) and 22(B) and the Third and Fourth Schedules shall apply mutatis mutandis separately and independently to each series of the Securities and in such Clauses and Schedules the expressions "Securities", Holders", "Coupons", "Couponholders", "Receipts", "Receiptholders" and "Talons" shall be construed accordingly.
3. FORM AND ISSUE OF ORIGINAL BONDS AND ORIGINAL COUPONS
(A) THE Original Bearer Bonds shall be represented initially by the Original Global Bond which the Issuer shall issue to a bank depositary common to both Euroclear and Cedel on terms that such depositary shall hold the same for the account of the persons who would otherwise be entitled to receive the Original Bearer Bonds in definitive form ("Definitive Original Bearer Bonds") (as notified to such depositary by UBS Limited on behalf of the Managers of the issue of the Original Bonds) and the successors in title to such persons as appearing in the records of Euroclear and Cedel for the time being.
(B) The Original Global Bond shall be printed or typed in the form or substantially in the form set out in the First Schedule. The Original Global Bond shall be in the aggregate principal amount shown therein and shall be signed manually by a person duly authorised by the Issuer on behalf of the Issuer and shall be authenticated by or on behalf of the Principal Paying Agent. The Original Global Bond so executed and authenticated shall be a binding and valid obligation of the Issuer.
(C) The Issuer shall issue the Definitive Original Bearer Bonds (together
with the unmatured Original Coupons attached) in exchange for the
Original Global Bond in accordance with the provisions thereof.
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Pending exchange of the entire principal amount of the Original Global Bond the holder thereof shall, subject to the terms thereof, be deemed to be the holder of the Original Bearer Bonds and the Original Coupons represented thereby for all purposes.
(D) (i) The Definitive Original Bearer Bonds and the Original Coupons
shall be to bearer in the respective forms or substantially in
the respective forms set out in Part I of the Second Schedule
and the Definitive Original Bearer Bonds shall be issued in the
denominations of (pound)1,000, (pound)10,000 and (pound)100,000
each (serially numbered) and shall be endorsed with the
Conditions. Title to the Definitive Original Bearer Bonds and
the Original Coupons shall pass by delivery.
(ii) The Original Registered Bonds shall be issued in definitive
registered form, shall be in the form or substantially in the
form set out in Part II of the Second Schedule, shall be in
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the denomination and transferable in units of (pound)1 each or
integral multiples thereof and shall be endorsed with the
Conditions. Title to the Original Registered Bonds shall pass
upon the registration of transfers in respect thereof in
accordance with the provisions of these presents.
(E) The Definitive Original Bearer Bonds and the Original Registered
Bonds shall be signed manually or in facsimile by a Director of
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the Issuer on behalf of the Issuer and, in the case of the Definitive Original Bearer Bonds, shall be authenticated by or on behalf of the Principal Paying Agent. The Issuer may use the facsimile signature of any person who at the date such signature is affixed is a Director of the Issuer notwithstanding that at the time of issue of any of the Definitive Original Bearer Bonds or the Original Registered Bonds he may have ceased for any reason to be the holder of such office. The Definitive Original Bearer Bonds so executed and authenticated, the Original Registered Bonds so executed, and the Original Coupons, upon execution and authentication of the relevant Definitive Original Bearer Bonds, shall be binding and valid obligations of the Issuer. The Original Coupons shall not be signed.
4. FEES, DUTIES AND TAXES
THE Issuer will pay any stamp, issue, registration, documentary and other fees, duties and taxes, including interest and penalties, payable on or in connection with (i) the execution and delivery of these presents, (ii) the constitution and original issue of the Securities and the Coupons and (iii) any action taken by or on behalf of the Trustee or (where permitted under these presents so to do) any Holder or Couponholder to enforce, or to resolve any doubt concerning, or for any other purpose in relation to, these presents.
5. COVENANT OF COMPLIANCE
THE Issuer covenants with the Trustee that it will comply with and perform and observe all the provisions of these presents which are expressed to be binding on it. The Conditions shall be binding on the Issuer, the Holders and the Couponholders. The Trustee shall be entitled to enforce the obligations of the Issuer under the Securities and the Coupons as if the same were set out and contained in the trust deeds constituting the same, which shall be read and construed as one document with the Securities and the Coupons.
The Trustee shall hold the benefit of this covenant upon trust for itself and the Holders according to its and their respective interests.
6. CANCELLATION OF SECURITIES AND RECORDS
(A) THE Issuer shall procure that all Securities (i) redeemed or (ii)
purchased by or on behalf of the Issuer or any Subsidiary of the Issuer
and surrendered for cancellation or (iii) which, being mutilated or
defaced, have been surrendered and replaced pursuant to Condition 14 or
(iv) exchanged as provided in these presents (together in each case
with all unmatured Coupons attached thereto or delivered therewith) and
all Coupons paid in accordance with the Conditions or which, being
mutilated or defaced, have been surrendered and replaced pursuant to
Condition 14 and all Talons exchanged in accordance with the Conditions for further Coupons shall forthwith be cancelled by or on behalf of the Issuer and a certificate stating:
(a) the aggregate principal amount of Securities which have been redeemed and the aggregate amounts in respect of Coupons which have been paid;
(b) the serial numbers of such Bearer Securities in definitive form;
(c) the total numbers (where applicable, of each denomination) by maturity date of such Coupons;
(d) the aggregate amount of interest paid (and the due dates of such payments) on Global Securities and/or on Registered Securities;
(e) the aggregate principal amount of Securities (if any) which have been purchased by or on behalf of the Issuer or any Subsidiary of the Issuer and cancelled and the serial numbers of such Bearer Securities in definitive form and the total number (where applicable, of each denomination) by maturity date of the Coupons attached thereto or surrendered therewith;
(f) the aggregate principal amounts of Securities and the aggregate amounts in respect of Coupons which have been so exchanged or surrendered and replaced and the serial numbers of such Bearer Securities in definitive form and the total number (where applicable, of each denomination) by maturity date of such Coupons;
(g) the total number (where applicable, of each denomination) by maturity date of unmatured Coupons missing from Securities in definitive form bearing interest at a fixed rate which have been redeemed or exchanged or surrendered and replaced and the serial numbers of the Bearer Securities in definitive form to which such missing unmatured Coupons appertained; and
(h) the total number (where applicable, of each denomination) by maturity date of Talons which have been exchanged for further Coupons
shall be given to the Trustee by or on behalf of the Issuer as soon as possible and in any event within four months after the date of such redemption, purchase, payment, exchange or replacement (as the case may be). The Trustee may accept such certificate as conclusive evidence of redemption, purchase, exchange or replacement pro tanto of the Securities or payment of interest thereon or exchange of the Talons respectively and of cancellation of the relative Securities and Coupons.
(B) The Issuer shall procure (i) that the Principal Paying Agent shall keep a full and complete record of all Securities and Coupons (other than serial numbers of Coupons) and of their redemption, purchase by or on behalf of the Issuer or any Subsidiary of the Issuer, cancellation, payment or exchange (as the case may be) and of all replacement securities or coupons or talons issued in substitution for lost, stolen, mutilated, defaced or destroyed Securities or Coupons (ii) that
the Principal Paying Agent shall in respect of the Coupons of each maturity retain (in the case of Coupons other than Talons) until the expiry of 10 years from the Relevant Date in respect of such Coupons and (in the case of Talons) indefinitely either all paid or exchanged Coupons of that maturity or a list of the serial numbers of Coupons of that maturity still remaining unpaid or unexchanged and (iii) that such records and Coupons (if any) shall be made available to the Trustee at all reasonable times.
7. ENFORCEMENT
(A) THE Trustee may at any time, at its discretion and without notice, take such proceedings and/or other action as it may think fit against or in relation to the Issuer to enforce its obligations under these presents.
(B) Proof that as regards any specified Security or Coupon the Issuer has made default in paying any amount due in respect of such Security or Coupon shall (unless the contrary be proved) be sufficient evidence that the same default has been made as regards all other Securities or Coupons (as the case may be) in respect of which the relevant amount is due and payable.
(C) References in the provisions of any Trust Deed supplemental to this Trust Deed corresponding to provisos (iii) and (iv) to Clause 2(B) to "the rate aforesaid" shall, in respect of any Securities bearing interest at a floating or variable rate, in the event of such Securities having become due and repayable, with effect from the expiry of the interest period during which such Securities become due and repayable, be construed as references to a rate of interest calculated mutatis mutandis in accordance with the Conditions except that no notices need be published in respect thereof.
8. PROCEEDINGS, ACTION AND INDEMNIFICATION
(A) THE Trustee shall not be bound to take any proceedings mentioned in Clause 7(A) or any other action in relation to these presents unless respectively directed or requested to do so (i) by an Extraordinary Resolution or (ii) in writing by the holders of at least one-quarter in principal amount of the Securities then outstanding and in either case then only if it shall be indemnified to its satisfaction against all Liabilities to which it may thereby render itself liable or which it may incur by so doing.
(B) Only the Trustee may enforce the provisions of these presents. No Holder or Couponholder shall be entitled to proceed directly against the Issuer to enforce the performance of any of the provisions of these presents unless the Trustee having become bound as aforesaid to take proceedings fails to do so within a reasonable period and such failure is continuing.
9. APPLICATION OF MONEYS
ALL moneys received by the Trustee under these presents shall, unless and to the extent attributable in the opinion of the Trustee to a particular series of the Securities, be apportioned pari passu and rateably between each series of the Securities, and all moneys received by the Trustee under these presents to the extent attributable in the opinion of the Trustee to a particular series of the Securities or
which are apportioned to such series as aforesaid (including any moneys which represent principal, premium or interest in respect of Securities or Coupons which have become void under Condition 10) shall be held by the Trustee upon trust to apply them (subject to Clause 11):
FIRST in payment or satisfaction of all amounts then due and unpaid under Clauses 14 and/or 15(J) to the Trustee and/or any Appointee;
SECONDLY in or towards payment pari passu and rateably of all principal, premium (if any) and interest then due and unpaid in respect of the Securities of that series;
THIRDLY in or towards payment pari passu and rateably of all principal, premium (if any) and interest then due and unpaid in respect of the Securities of each other series; and
FOURTHLY in payment of the balance (if any) to the Issuer (without prejudice to, or liability in respect of, any question as to how such payment to the Issuer shall be dealt with as between the Issuer and any other person).
Without prejudice to this Clause 9, if the Trustee holds any moneys which represent principal, premium (if any) and interest in respect of the Securities which have become void or in respect of which claims have been prescribed under Condition 10, the Trustee will hold such moneys on the above trusts.
10. NOTICE OF PAYMENTS
THE Trustee shall give notice to the relevant Holders in accordance
with Condition 15 of the day fixed for any payment to them under Clause
9. Such payment may be made in accordance with Condition 6 and any
payment so made shall be a good discharge to the Trustee.
11. INVESTMENT BY TRUSTEE
(A) IF the amount of the moneys at any time available for the payment of principal, premium (if any) and interest in respect of the Securities under Clause 9 shall be less than 10 per cent. of the principal amount of the Securities then outstanding the Trustee may at its discretion invest such moneys in some or one of the investments authorised below. The Trustee at its discretion may vary such investments and may accumulate such investments and the resulting income until the accumulations, together with any other funds for the time being under the control of the Trustee and available for such purpose, amount to at least 10 per cent. of the principal amount of the Securities then outstanding and then such accumulations and funds shall be applied under Clause 9.
(B) Any moneys which under the trusts of these presents ought to or may be invested by the Trustee may be invested in the name or under the control of the Trustee in any investments or other assets in any part of the world whether or not they produce income or by placing the same on deposit in the name or under the control of the Trustee at such bank or other financial institution and in such currency as the Trustee may think fit. If such bank or financial institution is the Trustee
or a Subsidiary, holding or associated company of the Trustee it need only account for an amount of interest equal to the largest amount of interest payable by it on such a deposit to an independent customer. The Trustee may at any time vary any such investments for or into other investments or convert any moneys so deposited into any other currency and shall not be responsible for any loss resulting from any such investments or deposits, whether due to depreciation in value, fluctua- tions in exchange rates or otherwise.
12. PARTIAL PAYMENTS
UPON any payment under Clause 9 (other than payment in full against surrender of a Security or Coupon) the Security or Coupon in respect of which such payment is made shall be produced to the Trustee or the Paying Agent by or through whom such payment is made and the Trustee shall or shall cause such Paying Agent to enface thereon a memorandum of the amount and the date of payment but the Trustee may in any particular case or generally in relation to Registered Securities dispense with such production and enfacement upon such indemnity being given as it shall think sufficient.
13. COVENANTS BY THE ISSUER
SO long as any of the Securities remains outstanding (or, in the case of paragraphs (viii), (ix), (xiii) to (xvi) inclusive and (xviii), so long as any of the Securities or Coupons remains liable to prescription) the Issuer covenants with the Trustee that it shall:
(i) at all times carry on and conduct its affairs and procure its Subsidiaries to carry on and conduct their respective affairs in a proper and efficient manner;
(ii) give or procure to be given to the Trustee such opinions, certificates, information and evidence as it shall properly require and in such form as it shall properly require (including without limitation the procurement by the Issuer of all such certificates called for by the Trustee pursuant to Clause 15(C)) for the purpose of the proper discharge or exercise of the duties, trusts, powers, authorities and discretions vested in it under these presents or by operation of law;
(iii) cause to be prepared and certified by the Auditors in respect of each financial accounting period accounts in such form as will comply with all relevant legal and accounting requirements and all applicable requirements for the time being of The Stock Exchange;
(iv) at all times keep and procure its Subsidiaries to keep proper books of account and following the occurrence of an Event of Default or a Potential Event of Default or if the Trustee has grounds to believe that an Event of Default or a Potential Event of Default has occurred or is likely to occur allow and procure its Subsidiaries to allow the Trustee and any person appointed by the Trustee to whom the Issuer or the relevant Subsidiary (as the case may be) shall have no reasonable objection free access to such books of account at all reasonable times during normal business hours;
(v) send to the Trustee (in addition to any copies to which it may be entitled as a holder of any securities of the Issuer) two copies in English of every balance sheet, profit and loss account, report, circular and notice of general meeting and every other document issued or sent to its shareholders together with any of the foregoing, and every document issued or sent to holders of securities other than its shareholders (including the Holders) as soon as reasonably practicable after the issue or publication thereof;
(vi) forthwith give notice in writing to the Trustee of the coming into existence of any Security Interest which would require any security to be given to any series of the Securities pursuant to Condition 4 or of the occurrence of any Event of Default or any Potential Event of Default or any Restructuring Event;
(vii) give to the Trustee (a) within seven days after demand by the Trustee therefor and (b) (without the necessity for any such demand) promptly after the publication of its audited accounts in respect of each financial period commencing with the financial period ending 3lst March, 1995 and in any event not later than 180 days after the end of each such financial period a certificate of the Issuer signed by two Directors of the Issuer to the effect that as at a date not more than seven days before delivering such certificate (the "relevant date") there did not exist and had not existed since the relevant date of the previous certificate (or in the case of the first such certificate the date hereof) any Event of Default or any Potential Event of Default or any Restructuring Event (or if such exists or existed specifying the same) and that during the period from and including the relevant date of the last such certificate (or in the case of the first such certificate the date hereof) to and including the relevant date of such certificate the Issuer has complied with all its obligations contained in these presents or (if such is not the case) specifying the respects in which it has not complied;
(viii) at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the opinion of the Trustee to give effect to these presents;
(ix) at all times maintain an Agent Bank, Reference Banks, Paying Agents, a Registrar and Transfer Agents in accordance with the Conditions;
(x) procure the Principal Paying Agent to notify the Trustee forthwith in the event that it does not, on or before the due date for any payment in respect of the Securities or any of them or any of the Coupons, receive unconditionally pursuant to the Agency Agreement payment of the full amount in the requisite currency of the moneys payable on such due date on all such Securities or Coupons as the case may be;
(xi) in the event of the unconditional payment to the Principal Paying Agent of any sum due in respect of the Securities or any of them or any of the Coupons being made after the due date for payment thereof forthwith give or procure to be given notice to the relevant Holders in accordance with Condition 15 that such payment has been made;
(xii) use all reasonable endeavours to maintain the listing of the Securities on The Stock Exchange or, if it is unable to do so having used all reasonable endeavours, use all reasonable endeavours to obtain and maintain a quotation or listing of the Securities on such other stock exchange or exchanges or securities market or markets as the Issuer may (with the prior written approval of the Trustee) decide and shall also upon obtaining a quotation or listing of the Securities on such other stock exchange or exchanges or securities market or markets enter into a trust deed supplemental to this Trust Deed to effect such consequential amendments to these presents as the Trustee may require or as shall be requisite to comply with the requirements of any such stock exchange or securities market;
(xiii) give notice to the Holders in accordance with Condition 15 of any appointment, resignation or removal of any Agent Bank, Reference Bank, Paying Agent, Registrar or Transfer Agent (other than the appointment of the initial Agent Bank, Reference Banks, Paying Agents, Registrar and Transfer Agents) after having obtained the prior written approval of the Trustee thereto or any change of any Paying Agent's, Registrar's or Transfer Agent's specified office and (except as provided by the Agent Bank Agreement or the Agency Agreement or the Conditions) at least 30 days prior to such event taking effect; PROVIDED ALWAYS THAT so long as any of the Securities remains outstanding in the case of the termination of the appointment of the Agent Bank, the Registrar or a Transfer Agent or so long as any of the Securities or Coupons remains liable to prescription in the case of the termination of the appointment of the Principal Paying Agent no such termination shall take effect until a new Agent Bank, Registrar, Transfer Agent or Principal Paying Agent (as the case may be) has been appointed on terms previously approved in writing by the Trustee;
(xiv) obtain the prior written approval of the Trustee to, and promptly give to the Trustee two copies of, the form of every notice given to the Holders in accordance with Condition 15 (such approval, unless so expressed, not to constitute approval for the purposes of Section 57 of the Financial Services Act 1986 of the United Kingdom of any such notice which is an investment advertisement (as therein defined));
(xv) if payments of principal, premium or interest in respect of the Securities or the Coupons by the Issuer shall become subject generally to the taxing jurisdiction of any territory or any political sub-division thereof or any authority therein or thereof having power to tax other than or in addition to the United Kingdom or any such political sub-division thereof or any such authority therein or thereof, as soon as reasonably practicable after having become aware thereof notify the Trustee of such event and (unless the Trustee otherwise agrees) enter forthwith into a Trust Deed supplemental to this Trust Deed, giving to the Trustee an undertaking or covenant in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 9 with the substitution for (or, as the case may be, the addition to) the references therein to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax of references to that other or additional territory or any political sub-division thereof or any authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid such
Trust Deed also (where applicable) to modify Condition 7(c) so that such Condition shall make reference to the other or additional territory, any political sub-division thereof and any authority therein or thereof having power to tax;
(xvi) comply with and perform all its obligations under the Agent Bank Agreement and the Agency Agreement and use all reasonable endeavours to procure that the Agent Bank, the Paying Agents, the Registrar and the Transfer Agents comply with and perform all their respective obligations thereunder and (in the case of the Paying Agents) any notice given by the Trustee pursuant to Clause 2(C)(i) and not make any amendment or modification to either of such Agreements without the prior written approval of the Trustee;
(xvii) in order to enable the Trustee to ascertain the principal amount of Securities of each series for the time being outstanding for any of the purposes referred to in the proviso to the definition of "outstanding" in Clause 1, deliver to the Trustee forthwith upon being so requested in writing by the Trustee a certificate in writing signed by two Directors of the Issuer setting out the total number and aggregate principal amount of Securities of each series which:
(a) up to and including the date of such certificate have been purchased by the Issuer, any Subsidiary of the Issuer, any holding company of the Issuer or any other Subsidiary of any such holding company and cancelled; and
(b) are at the date of such certificate held by, for the benefit of, or on behalf of, the Issuer, any Subsidiary of the Issuer, any holding company of the Issuer or any other Subsidiary of any such holding company;
(xviii) procure its Subsidiaries to comply with all (if any) applicable provisions of Condition 7(d);
(xix) procure that each of the Paying Agents makes available for inspection by Holders and Couponholders at its specified office copies of these presents, the Agency Agreement, the Agent Bank Agreement and the then latest audited balance sheet and profit and loss account (consolidated if applicable) of the Issuer;
(xx) if, in accordance with the provisions of the Conditions, interest in respect of Bearer Securities denominated in U.S. dollars becomes payable at the specified office of any Paying Agent in the United States of America promptly give notice thereof to the Holders in accordance with Condition 15;
(xxi) give to the Trustee at the same time as sending to it the certificates referred to in paragraph (vii) above and in any event not later than 180 days after the last day of each financial period of the Issuer, a certificate by the Auditors listing those Subsidiaries of the Issuer which as at the relevant date (as defined in paragraph (vii) above) of the relevant certificate given under paragraph (vii) above or, as the case may be, as at such last day were Principal Subsidiaries for the purposes of Condition 11; and
(xxii) give to the Trustee, as soon as reasonably practicable after the acquisition or disposal of any company which thereby becomes or ceases to be a Principal Subsidiary or after any transfer is made to any Subsidiary of the Issuer which thereby becomes a Principal Subsidiary, a certificate by the Auditors to such effect;
(xxiii) upon due surrender in accordance with the Conditions, pay the face value of all Coupons (including Coupons issued in exchange for Talons) appertaining to all Securities purchased by the Issuer, any Subsidiary of the Issuer, any holding company of the Issuer or any other Subsidiary of any such holding company;
(xxiv) give to the Trustee a certificate of the Auditors:
(a) specifying the amount of the Capital and Reserves for the purposes of Condition 4, such certificate to be provided before the Issuer creates or has outstanding a Security Interest in respect of any Relevant Indebtedness and/or guarantees within Condition 4;
(b) specifying that a Subsidiary of the Issuer satisfies the provisions of Condition 4(B)(i) and (ii), such certificate to be provided before or at the same time as any written notice given to the Trustee by the Issuer under Condition 4(B)(iii) that a Subsidiary of the Issuer is an Excluded Subsidiary; and
(c) specifying the amount of the Capital and Reserves for the purposes of Condition 11(c), such certificate to be provided within 10 days of any request by the Trustee for its provision;
(xxv) give to the Trustee a certificate of two Directors of the Issuer:
(a) specifying the aggregate amount of any Relevant Indebtedness of the Issuer or a PES subsidiary or guaranteed by the Issuer or a PES Subsidiary and in respect of which a Security Interest or Security Interests has or have been created or is or are outstanding, such certificate to be provided before the Issuer or a PES Subsidiary creates or has outstanding any new Security interest;
(b) specifying details of any modification to the terms and conditions of the PES Licence, such certificate to be provided promptly upon any such modification being made; and
(c) specifying any higher figure determined by the Director (as defined in the PES Licence) as is mentioned in Condition 11, such certificate to be provided within 5 days of the Director determining such figure by notice in writing to the Secretary of State (as defined in the PES Licence) and the Issuer;
and
(xxvi) give notice to the Trustee as soon as practicable after its Directors or the Directors of any PES Subsidiary have resolved to give any Security Interest in respect of any Relevant Indebtedness or guarantee as described in Condition 4.
14. REMUNERATION AND INDEMNIFICATION OF TRUSTEE
(A) THE Issuer shall pay to the Trustee remuneration for its services as trustee as from the date of this Trust Deed, such remuneration to be at such rate as may from time to time be agreed between the Issuer and the Trustee. Such remuneration shall be payable in advance on 17th January in each year, the first such payment to be made on the date hereof. Upon the issue of any Further Securities the rate of remuneration in force immediately prior thereto shall be increased by such amount as shall be agreed between the Issuer and the Trustee, such increased remuneration to be calculated from such date as shall be agreed as aforesaid. The rate of remuneration in force from time to time may upon the final redemption of the whole of the Securities of any series be reduced by such amount as shall be agreed between the Issuer and the Trustee, such reduced remuneration to be calculated from such date as shall be agreed as aforesaid. Such remuneration shall accrue from day to day and be payable (in priority to payments to the Holders and Couponholders) up to and including the date when, all the Securities having become due for redemption, the redemption moneys and interest thereon to the date of redemption have been paid to the Principal Paying Agent or the Trustee PROVIDED THAT if upon due presentation of any Security or Coupon or any cheque payment of the moneys due in respect thereof is improperly withheld or refused, remuneration will commence again to accrue.
(B) In the event of the occurrence of an Event of Default or a Potential Event of Default or the Trustee considering it expedient or necessary or being requested by the Issuer to undertake duties which the Trustee and the Issuer agree to be of an exceptional nature or otherwise outside the scope of he normal duties of the Trustee under these presents the Issuer shall pay to the Trustee such additional remuneration as shall be agreed between them.
(C) The Issuer shall in addition pay to the Trustee an amount equal to the amount of any value added tax or similar tax chargeable in respect of its remuneration under these presents.
(D) In the event of the Trustee and the Issuer failing to agree:
(1) (in a case to which sub-clause (A) above applies) upon the amount of the remuneration; or
(2) (in a case to which sub-clause (B) above applies) upon whether such duties shall be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee under these presents, or upon such additional remuneration,
such matters shall be determined by a merchant bank (acting as an expert and not as an arbitrator) selected by the Trustee and approved by the Issuer or failing such approval, nominated (on the application of the Trustee) by the President for the time being of The Law Society of England and Wales (the expenses involved in such nomination and the
fees of such merchant bank being payable by the Issuer) and the determination of any such merchant bank shall be final and binding upon the Trustee and the Issuer.
(E) The Issuer shall also pay or discharge all Liabilities incurred by the Trustee in relation to the preparation and execution of the exercise of its powers and the performance of its duties under, and in any other manner in relation to, these presents, including but not limited to travelling expenses and any stamp, issue, registration, documentary and other taxes or duties paid or payable by the Trustee in connection with any action taken or contemplated by or on behalf of the Trustee for enforcing, or resolving any doubt concerning, or for any other purpose in relation to, these presents.
(F) All amounts payable pursuant to sub-clause (E) above and/or Clause 15(J) shall be payable by the Issuer on the date specified in a demand by the Trustee and in the case of payments actually made by the Trustee prior to such demand shall (if not paid within three days after such demand and the Trustee so requires) carry interest at the rate of two per cent. per annum above the Base Rate from time to time of National Westminster Bank Plc from the date specified in such demand, and in all other cases shall (if not paid on the date specified in such demand or, if later, within three days after such demand and, in either case, the Trustee so requires) carry interest at such rate from the date specified in such demand. All remuneration payable to the Trustee shall carry interest at such rate from the due date therefor.
(G) Unless otherwise specifically stated in any discharge of these presents the provisions of this Clause and Clause 15(J) shall continue in full force and effect notwithstanding such discharge.
(H) The Trustee shall be entitled in its absolute discretion to determine in respect of which series of Securities any Liabilities incurred under these presents have been incurred or to allocate any such Liabilities between the Original Bonds and any Further Securities of any series.
15. SUPPLEMENT TO TRUSTEE ACT 1925
THE Trustee shall have all the powers conferred upon trustees by the Trustee Act 1925 of England and Wales and by way of supplement thereto it is expressly declared as follows:
(A) The Trustee may in relation to these presents act on the advice or opinion of or any information obtained from any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether obtained by the Issuer, the Trustee or otherwise and shall not be responsible for any Liability occasioned by so acting.
(B) Any such advice, opinion or information may be sent or obtained by letter, telex, telegram, facsimile transmission or cable and the Trustee shall not be liable for acting on any advice, opinion or information purporting to be conveyed by any such letter, telex, telegram, facsimile transmission or cable although the same shall contain some error or shall not be authentic.
(C) The Trustee may call for and shall be at liberty to accept as sufficient evidence of any fact or matter or the expediency of any transaction or thing a certificate signed by any two
Directors of the Issuer and the Trustee shall not be bound in any such case to call for further evidence or be responsible for any Liability that may be occasioned by it or any other person acting on such certificate.
(D) The Trustee shall be at liberty to hold or to place these presents and any other documents relating thereto in any part of the world with any banker or banking company or company whose business includes undertaking the safe custody of documents or lawyer or firm of lawyers considered by the Trustee to be of good repute and the Trustee shall not be responsible for or required to insure against any Liability incurred in connection with any such deposit and may pay all sums required to be paid on account of or in respect of any such deposit.
(E) The Trustee shall not be responsible for the receipt or application of the proceeds of the issue of any of the Securities by the Issuer, the exchange of any Global Security for another Global Security or definitive Securities or the delivery of any Global Security or definitive Securities to the person(s) entitled to it or them.
(F) The Trustee shall not be bound to give notice to any person of the execution of any documents comprised or referred to in these presents or to take any steps to ascertain whether any Event of Default, Potential Event of Default, Negative Rating Event, any Restructuring Event or any event which could lead to the occurrence of or could constitute a Restructuring Event has occurred and, until it shall have actual knowledge or express notice pursuant to these presents to the contrary, the Trustee shall be entitled to assume that no Event of Default, Potential Event of Default, Negative Rating Event, any Restructuring Event or any other such event has occurred and that the Issuer is observing and performing all its obligations under these presents.
(G) Save as expressly otherwise provided in these presents, the Trustee shall have absolute and uncontrolled discretion as to the exercise of its trusts, powers, authorities and discretions under these presents (the exercise of which as between the Trustee and the Holders and Couponholders shall be conclusive and binding on the Holders and Couponholders) and shall not be responsible for any Liability which may result from their exercise or non-exercise.
(H) The Trustee shall not be liable to any person by reason of having acted upon any resolution purporting to have been passed at any meeting of the Holders of Securities of all or any series in respect whereof minutes have been made and signed even though subsequent to its acting it may be found that there was some defect in the constitution of the meeting or the passing of the resolution or that for any reason the resolution was not valid or binding upon such Holders and the relative Couponholders.
(I) The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any Security or Coupon purporting to be such and subsequently found to be forged or not authentic.
(J) Without prejudice to the right of indemnity by law given to trustees, the Issuer shall indemnify the Trustee and every Appointee and keep it or him indemnified against all Liabilities to which it or he may be or become subject or which may be incurred by it or him in the execution or purported execution of any of its trusts, powers, authorities and discretions under these presents or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to these presents or any such appointment.
(K) Any consent or approval given by the Trustee for the purposes of these presents maybe given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in these presents may be given retrospectively.
(L) The Trustee shall not (unless and to the extent ordered so to do by a court of competent jurisdiction) be required to disclose to any Holder or Couponholder any information (including, without limitation, information of a confidential, financial or price sensitive nature) made available to the Trustee by the Issuer or any other person in connection with these presents and no Holder or Couponholder shall be entitled to take any action to obtain from the Trustee any such information.
(M) Where it is necessary or desirable for any purpose in connection with these presents to convert any sum from one currency to another it shall (unless otherwise provided by these presents or required by law) be converted at such rate or rates, in accordance with such method and as at such date for the determination of such rate of exchange, as may be agreed by the Trustee in consultation with the Issuer and any rate, method and date so agreed shall be binding on the Issuer, the Holders and the Couponholders.
(N) The Trustee may certify whether or not any of the conditions,
events and acts set out in sub-paragraphs (b), (c), (e), (f),
(g) and (h) (both inclusive) of Condition 11 (each of which
conditions, events and acts shall, unless in any case the
Trustee in its absolute discretion shall otherwise determine,
for all the purposes of these presents be deemed to include
the circumstances resulting therein and the consequences
resulting therefrom) is in its opinion materially prejudicial
to the interests of the Holders and any such certificate shall
be conclusive and binding upon the Issuer, the Holders and the
Couponholders.
(0) The Trustee as between itself and the Holders and Couponholders may determine all questions and doubts arising in relation to any of the provisions of these presents. Every such determination, whether or not relaxing in whole or in part to the acts or proceedings of the Trustee, shall be conclusive and shall bind the Trustee and the Holders and Couponholders.
(P) In connection with the exercise by it of any of its trusts, powers, authorities and discretions under these presents (including, without limitation, any modification, waiver, authorisation, determination or substitution), the Trustee shall have regard to the interests of the Holders as a class and, in particular but without limitation, shall not have
regard to the consequences of such exercise for individual Holders or Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory or any political sub-division thereof and the Trustee shall not be entitled to require, nor shall any Holder or Couponholder be entitled to claim, from the Issuer, the Trustee or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Holders or Couponholders except to the extent already provided for in Condition 9 and/or any undertaking given in addition thereto or in substitution therefor under these presents.
(Q) Any trustee of these presents being a lawyer, accountant, broker or other person engaged in any profession or business shall be entitled to charge and be paid all usual professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of these presents and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with these presents.
(R) The Trustee may whenever it thinks fit delegate by power of attorney or otherwise to any person or persons or fluctuating body of persons (whether being a joint trustee of these presents or not) all or any of its trusts, powers, authorities and discretions under these presents. Such delegation may be made upon such terms (including power to sub-delegate) and subject to such conditions and regulations as the Trustee may in the interests of the Holders think fit. The Trustee shall not be under any obligation to supervise the proceedings or acts of any such delegate or sub-delegate or be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate. The Trustee shall within a reasonable time after any such delegation or any renewal, extension or termination thereof give notice thereof to the Issuer.
(S) The Trustee may in the conduct of the trusts of these presents instead of acting personally employ and pay an agent (whether being a lawyer or other professional person) to transact or conduct, or concur in transacting or conducting, any business and to do, or concur in doing, all acts required to be done in connection with these presents (including the receipt and payment of money). The Trustee shall not be in any way responsible for any Liability incurred by reason of any misconduct or default on the part of any such agent or be bound to supervise the proceedings or acts of any such agent.
(T) The Trustee shall not be responsible for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of these presents or any other document relating thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of these presents or any other document relating thereto.
16. TRUSTEE'S LIABILITY
NOTHING in these presents shall in any case in which the Trustee has failed to show the degree of care and diligence required of it as trustee having regard to the provisions of these presents conferring on it any trusts, powers, authorities or discretions exempt the Trustee from or indemnify it against any liability for breach of trust or any Liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under these presents.
17. TRUSTEE CONTRACTING WITH ISSUER
NEITHER the Trustee nor any director or officer of a corporation acting as a trustee under these presents shall by reason of its or his fiduciary position be in any way precluded from:
(i) entering into or being interested in any contract or financial or other transaction or arrangement with the Issuer or any person or body corporate associated with the Issuer (including without limitation any contract, transaction or arrangement of a banking or insurance nature or any contract, transaction or arrangement in relation to the making of loans or the provision of financial facilities to, or the purchase, placing or underwriting of or the subscribing or procuring subscriptions for or otherwise acquiring, holding or dealing with the Securities or any other bonds, notes, stocks, shares, debenture stock, debentures or other securities of the Issuer or any person or body corporate associated as aforesaid); or
(ii) accepting or holding the trusteeship of any other trust deed constituting or securing any other securities issued by or relating to the Issuer or any such person or body corporate so associated or any other office of profit under the Issuer or any such person or body corporate so associated and shall be entitled to retain and shall not be in any way liable to account for any profit made or share of brokerage or commission or remuneration or other benefit received thereby or in connection therewith.
18. WAIVER, AUTHORISATION AND DETERMINATION
(A) THE Trustee may without prejudice to its rights in respect of any subsequent breach, Event of Default or Potential Event of Default from time to time and at any time but only if and in so far as in its opinion the interests of the Holders shall not be materially prejudiced thereby waive or authorise any breach or proposed breach by the Issuer of any of the covenants or provisions contained in these presents or determine that any Event of Default or Potential Event of Default shall not be treated as such for the purposes of these presents PROVIDED ALWAYS THAT the Trustee shall not exercise any powers conferred on it by this Clause in contravention of any express direction given by Extraordinary Resolution or by a request under Condition 11 but so that no such direction or request shall affect any waiver, authorisation or determination previously given or made. Any such waiver, authorisation or determination may be given or made on such terms and subject to such conditions (if any) as the Trustee may determine, shall be binding on the Holders and the Couponholders and, if, but only if the Trustee shall so require, shall be notified by the Issuer to the Holders in accordance with Condition 15 as soon as practicable thereafter.
MODIFICATION
(B) The Trustee may without the consent of the Holders or Couponholders at any time and from time to time concur with the Issuer in making any modification (i) to these presents (other than the proviso to paragraph 5 of the Fourth Schedule or any of the matters referred to in that proviso) which in the opinion of the Trustee it may be proper to make PROVIDED THAT the Trustee is of the opinion that such modification will not be materially prejudicial to their interests of the Holders or (ii) to these presents if in the opinion of the Trustee such modification is of a formal, minor or technical nature or to correct a manifest error. Any such modification may be made on such terms and subject to such conditions (if any) as the Trustee may determine, shall be binding upon the Holders and the Couponholders and, unless the Trustee agrees otherwise, shall be notified by the Issuer to the Holders in accordance with Condition 15 as soon as practicable thereafter.
19. HOLDER OF DEFINITIVE BEARER SECURITY ASSUMED TO BE COUPONHOLDER
(A) WHEREVER in these presents the Trustee is required or entitled to exercise a power, trust, authority or discretion under these presents, except as ordered by a court of competent jurisdiction or as required by applicable law, the Trustee shall, notwithstanding that it may have express notice to the contrary, assume that each Holder is the holder of all Coupons appertaining to each Bearer Security in definitive form of which he is the holder.
NO NOTICE TO COUPONHOLDERS
(B) Neither the Trustee nor the Issuer shall be required to give any notice to the Couponholders for any purpose under these presents and the Couponholders shall be deemed for all purposes to have notice of the contents of any notice given to the Holders in accordance with Condition 15.
ENTITLEMENT TO TREAT HOLDER AS ABSOLUTE OWNER
(C) The Issuer, the Trustee, the Paying Agents, the Registrar and the Transfer Agents may (to the fullest extent permitted by applicable laws) deem and treat the holder of any Security and the holder of any Coupon as the absolute owner of such Security or Coupon, as the case may be, for all purposes (whether or not such Security or Coupon shall be overdue and notwithstanding any notice of ownership thereof, any notice of loss or theft thereof or any writing thereon), and the Issuer, the Trustee, the Paying Agents, the Registrar and the Transfer Agents shall not be affected by any notice to the contrary. All payments made to any such holder shall be valid and, to the extent of the sums so paid, effective to satisfy and discharge the liability for the moneys payable in respect of such Security or Coupon, as the case may be.
20. SUBSTITUTION
(A) (1) The Trustee may without the consent of the Holders or Couponholders at any time agree with the Issuer to the substitution in place of the Issuer (or of the previous substitute under this Clause) as the principal debtor under these presents of any Subsidiary of the Issuer (such substituted company being hereinafter called the "New Company") provided that a trust deed is executed or some other form of undertaking is given by the New Company in form and manner satisfactory to the Trustee, agreeing to be bound by the provisions of these presents with any consequential amendments which the Trustee may deem appropriate as fully as if the New Company had been named in these presents as the principal debtor in place of the Issuer (or of the previous substitute under this Clause) and provided further that the Issuer unconditionally and irrevocably guarantees all amounts payable under these presents save where the Issuer has transferred the PES Licence to the New Company.
(2) The following further conditions shall apply to (1) above:
(i) the Issuer and the New Company shall comply with such other requirements as the Trustee may direct in the interests of the Holders;
(ii) where the New Company is incorporated, domiciled or resident in, or subject generally to the taxing jurisdiction of a territory other than or in addition to the United Kingdom or any political sub-division thereof or any authority therein or thereof having power to tax, undertakings or covenants shall be given by the New Company in terms corresponding to the provisions of Condition 9 with the substitution for (or, as the case may be, the addition to) the references to the United Kingdom of references to that other or additional territory in which the New Company is incorporated, domiciled or resident or to whose taxing jurisdiction it is subject and (where applicable) Condition 7(c) shall be modified accordingly;
(iii) without prejudice to the rights of reliance of the
Trustee under the immediately following paragraph
(iv) the Trustee is satisfied that the relevant
transaction is not materially prejudicial to the
interests of the Holders; and
(iv) if two Directors of the New Company (or other officers acceptable to the Trustee) shall certify that the New Company is solvent at the time at which the relevant transaction is proposed to be effected (which certificate the Trustee may rely upon absolutely) the Trustee shall not be under any duty to have regard to the financial condition, profits or prospects of the New Company or to compare the same with those of the Issuer or the previous substitute under this Clause as applicable.
(B) Any such Trust Deed or undertaking shall, if so expressed, operate to release the Issuer or the previous substitute as aforesaid from all of its obligations qua principal debtor under these presents. Not later than 14 days after the execution of such documents and compliance with such requirements, the New Company shall give notice thereof in a form previously approved by the Trustee to the Holders in the manner provided in Condition 15. Upon the execution of such documents and
compliance with such requirements, the New Company shall be deemed to be named in these presents as the principal debtor in place of the Issuer (or in place of the previous substitute under this Clause) under these presents and these presents shall be deemed to be amended in such manner as shall be necessary to give effect to the above provisions and, without limitation, references in these presents to the Issuer shall, where the context so requires, be deemed to be or include references to the New Company.
21. CURRENCY INDEMNITY
THE Issuer shall indemnify the Trustee, every Appointee, the Holders and the Couponholders and keep them indemnified against:
(a) any Liability incurred by any of them arising from the non-payment by the Issuer of any amount due to the Trustee or the Holders or Couponholders under these presents by reason of any variation in the rates of exchange between those used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Issuer; and
(b) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under these presents (other than this Clause) is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Issuer and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be reduced by any variation in rates of exchange occurring between the said final date and the date of any distribution of assets in connection with any such bankruptcy, insolvency or liquidation.
The above indemnity shall constitute an obligation of the Issuer separate and independent from its obligations under the other provisions of these presents and shall apply irrespective of any indulgence granted by the Trustee or the Holders or the Couponholders from time to time and shall continue in full force and effect notwithstanding the judgment or filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Issuer for a liquidated sum or sums in respect of amounts due under these presents (other than this Clause). Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders and Couponholders and no proof or evidence of any actual loss shall be required by the Issuer or its liquidator or liquidators.
22. NEW TRUSTEE
(A) THE power to appoint a new trustee of these presents shall be vested in the Issuer but no person shall be appointed who shall not previously have been approved by an Extraordinary Resolution. One or more persons may hold office as trustee or trustees of these presents but such trustee or trustees shall be or include a Trust Corporation. Whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the duties, powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a Trust Corporation shall be included in such majority. Any appointment of a new trustee of
these presents shall as soon as practicable thereafter be notified by the Issuer to the Principal Paying Agent, the Registrar, the Transfer Agents and the Holders.
SEPARATE AND CO-TRUSTEES
(B) Notwithstanding the provisions of sub-clause (A) above, the Trustee may, upon giving prior notice to the Issuer (but without the consent of the Issuer, the Holders or the Couponholders), appoint any person established or resident in any jurisdiction (whether a Trust Corporation or not) to act either as a separate trustee or as a co-trustee jointly with the Trustee:
(i) if the Trustee considers such appointment to be in the interests of the Holders;
(ii) for the purposes of conforming to any legal requirements, restrictions or conditions in any jurisdiction in which any particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction or the enforcement in any jurisdiction of either a judgment already obtained or any of the provisions of these presents against the Issuer.
The Issuer irrevocably appoints the Trustee to be its attorney in its name and on its behalf to execute any such instrument of appointment. Such a person shall (subject always to the provisions of these presents) have such trusts, powers, authorities and discretions (not exceeding those conferred on the Trustee by these presents) and such duties and obligations as shall be conferred or imposed by the instrument of appointment. The Trustee shall have power in like manner to remove any such person. Such reasonable remuneration as the Trustee may pay to any such person, together with any attributable Liabilities incurred by it in performing its function as such separate trustee or co-trustee, shall for the purposes of these presents be treated as Liabilities incurred by the Trustee.
23. TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of these presents may retire at any time on giving not less than three months' prior written notice to the Issuer without giving any reason and without being responsible for any Liabilities incurred by reason of such retirement. The Holders may by Extraordinary Resolution remove any trustee or trustees for the time being of these presents. The Issuer undertakes that in the event of the only trustee of these presents which is a Trust Corporation giving notice under this Clause or being removed by Extraordinary Resolution it will use its best endeavours to procure that a new trustee of these presents being a Trust Corporation is appointed as soon as reasonably practicable thereafter. The retirement or removal of any such trustee shall not become effective until a successor trustee being a Trust Corporation is appointed.
24. TRUSTEE'S POWERS TO BE ADDITIONAL
THE powers conferred upon the Trustee by these presents shall be in addition to any powers which may from time to time be vested in the Trustee by the general law or as a holder of any of the Securities or Coupons.
25. NOTICES
ANY notice or demand to the Issuer or the Trustee to be given, made or served for any purposes under these presents shall be given, made or served by sending the same by pre-paid post (first class if inland, first class airmail if overseas), telex or facsimile transmission or by delivering it by hand as follows:
to the Issuer: Wetherby Road
Scarcroft
Leeds LS14 3HS
England
(Attention: the Group Company Secretary and
Solicitor)
Telex No. 55128
Facsimile No. 0532 895611
to the Trustee: 1 Appold Street
Broadgate
London EC2A 2HE
England
(Attention: the Managing Director)
Telex No. 883341 BANTR-G
Facsimile No. 0171-982 1149
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or to such other address, telex or facsimile number as shall have been notified (in accordance with this Clause) to the other party hereto and any notice or demand sent by post as aforesaid shall be deemed to have been given, made or served three days in the case of inland post or seven days in the case of overseas post after despatch and any notice or demand sent by telex or facsimile transmission as aforesaid shall be deemed to have been given, made or served 24 hours after the time of despatch provided that in the case of a notice or demand given by telex or facsimile transmission such notice or demand shall forthwith be confirmed by post. The failure of the addressee to receive such confirmation shall not invalidate the relevant notice or demand given by telex or facsimile transmission.
26. GOVERNING LAW
THESE presents are governed by, and shall be construed in accordance with, English law.
27. COUNTERPARTS
THIS Trust Deed and any Trust Deed supplemental hereto may be executed and delivered in any number of counterparts, all of which, taken together, shall constitute one and the same deed and any party to this Trust Deed or any Trust Deed supplemental hereto may enter into the same by executing and delivering a counterpart.
IN WITNESS whereof this Trust Deed has been executed as a deed by the Issuer and the Trustee and delivered on the date first stated above.
THE FIRST SCHEDULE
- FORM OF ORIGINAL GLOBAL BOND -
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 2366995)
TEMPORARY GLOBAL BOND
representing
(pound)[ ] in principal amount of an issue of
(pound)200,000,000 9 1/4 PER CENT. BONDS DUE 2020
This Bond is a temporary Global Bond without interest coupons in respect of
(pound)[ ] in principal amount of a duly authorised issue of Bonds of Yorkshire
Electricity Group plc (the "Issuer"), designated as specified in the tide hereof
(the "Bonds"), limited to the aggregate principal amount of Two Hundred Million
Pounds Sterling ((pound)200,000,000) and constituted by a Trust Deed dated 17th
January, 1995 (the "Trust Deed") between the Issuer and Bankers Trustee Company
Limited as trustee (the trustee for the time being thereof being herein called
the "Trustee"). References herein to the Conditions (or to any particular
numbered Condition) shall be to the Conditions (or that particular one of them)
set out in Part III of the Second Schedule to the Trust Deed.
1. Promise to pay
Subject as provided in this temporary Global Bond the Issuer promises to pay to the bearer the principal amount of this temporary Global Bond (being at the date hereof [ ] Pounds Sterling ((pound)[ ])) on 17th January, 2020 (or on such earlier date as the said principal amount may become repayable m accordance with the Conditions or the Trust Deed) and to pay interest annually in arrear on 17th January on the principal amount from time to time of this temporary Global Bond at the rate of 9 1/4 per cent. per annum together with such other amounts (if any) as may be payable, all subject to and in accordance with the Conditions and the provisions of the Trust Deed.
2. Exchange for definitive Bonds and purchases
This temporary Global Bond is exchangeable in whole or in part upon the request of the bearer for definitive Bonds only on and subject to the terms and conditions set out below. The definitive Bonds to be issued on such exchange will be in bearer form ("Definitive Bearer Bonds") in
the denominations of (pound)1,000, (pound)10,000 and (pound)100,000 each with interest coupons ("Coupons") and one Talon for further interest coupons ("Talon") attached.
On and after 27th February, 1995 this temporary Global Bond may be exchanged in whole or in part at the specified office of the Principal Paying Agent (or such other place as the Trustee may agree) for Definitive Bearer Bonds and the Issuer shall procure that the Principal Paying Agent shall issue and deliver, in full or partial exchange for this temporary Global Bond, Definitive Bearer Bonds (together with the Coupons and Talons appertaining thereto) in an aggregate principal amount equal to the principal amount of this temporary Global Bond submitted for exchange Provided that Definitive Bearer Bonds will be so issued and delivered only if and to the extent that there shall have been presented to the Issuer a certificate from Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System ("Euroclear") or from Cedel, societe anonyme ("Cedel") substantially in the form of the certificate attached as Exhibit A.
Any person who would, but for the provisions of this temporary Global Bond and the Trust Deed, otherwise be entitled to receive a Definitive Bearer Bond or Bonds shall not be entitled to require the exchange of an appropriate part of this temporary Global Bond for a Definitive Bearer Bond or Definitive Bearer Bonds unless and until he shall have delivered or caused to be delivered to Euroclear or Cedel a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Cedel in Luxembourg and the specified office of each of the Paying Agents).
Upon (i) any exchange of a part of this temporary Global Bond for a Definitive Bearer Bond or Definitive Bearer Bonds or (ii) the purchase by or on behalf of the Issuer or any Subsidiary of the Issuer and cancellation of a part of this temporary Global Bond in accordance with the Conditions, the portion of the principal amount hereof so exchanged or so purchased and cancelled shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part II of the Schedule hereto, whereupon the principal amount hereof shall be reduced for all purposes by the amount so exchanged or so purchased and cancelled and endorsed.
3. Payments
Until the entire principal amount of this temporary Global Bond has been extinguished, this temporary Global Bond shall in all respects be entitled to the same benefits as the Definitive Bearer Bonds and shall be entitled to the benefit of and be bound by the Trust Deed, except that the holder of this temporary Global Bond shall not (unless upon due presentation of this temporary Global Bond for exchange, delivery of the appropriate number of Definitive Bearer Bonds (together with the Coupons and Talons appertaining thereto) is improperly withheld or refused and such withholding or refusal is continuing at the relevant payment date) be entitled to receive any payment of interest on this temporary Global Bond except upon certification as hereinafter provided. Upon any payment of principal or interest on this temporary Global Bond the amount so paid shall be endorsed by or on behalf of the Principal Paying Agent on behalf of the Issuer on Part I of the Schedule hereto.
Payments of interest in respect of Bonds for the time being represented by this temporary Global Bond shall be made to the bearer only upon presentation to the Issuer or its agent of a certificate from Euroclear or from Cedel substantially in the form of the certificate attached as Exhibit A. Any person who would, but for the provisions of this temporary Global Bond and of the Trust Deed, otherwise be beneficially entitled to a payment of interest on this temporary Global Bond shall not be entitled to require such payment unless and until he shall have delivered or caused to be delivered to Euroclear or Cedel a certificate substantially in the form of the certificate attached as Exhibit B (copies of which form of certificate will be available at the offices of Euroclear in Brussels and Cedel in Luxembourg and the specified office of each of the Paying Agents).
Upon any payment of principal and endorsement of such payment on Part I of the Schedule hereto, the principal amount of this temporary Global Bond shall be reduced for all purposes by the principal amount so paid and endorsed.
All payments of any amounts payable and paid to the bearer of this temporary Global Bond shall be valid and, to the extent of the sums so paid, effectual to satisfy and discharge the liability for the moneys payable hereon and on the relevant Definitive Bearer Bonds and Coupons.
4. Authentication
This temporary Global Bond shall not be or become valid or obligatory for any purpose unless and until authenticated by or on behalf of the Principal Paying Agent.
5. Governing law
This temporary Global Bond is governed by, and shall be construed in accordance with, the laws of England.
IN WITNESS whereof the Issuer has caused this temporary Global Bond to be signed manually by a person duly authorised on its behalf.
YORKSHIRE ELECTRICITY GROUP plc
By:__________________________
Duly authorised
Issued in London, England on 17th January, 1995.
Certificate of authentication
This temporary Global Bond is duly authenticated (without recourse, warranty or liability).
Duly authorised
for and on behalf of
Morgan Guaranty Trust Company
of New York, London Office,
as Principal Paying Agent
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this temporary Global Bond have been made:
Remaining principal Notation
amount of this made on
Date Interest Principal temporary Global Bond behalf of
made paid paid following such payment the Issuer
(pound) (pound) (pound)
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PART II
EXCHANGES FOR DEFINITIVE BEARER BONDS AND
PURCHASES AND CANCELLATIONS
The following exchanges of a part of this temporary Global Bond for Definitive Bearer Bonds and/or purchases and cancellations of a part of this temporary Global Bond have been made:
Date Part of principal Part of Aggregate principal Notation
made amount of this principal amount of this made on
temporary amount of this temporary behalf of
Global Bond temporary Global Bond the Issuer
exchanged for Global Bond following such
Definitive Bearer purchased and exchange or purchase
Bonds cancelled and cancellation
(pound) (pound) (pound)
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EXHIBIT A
YORKSHIRE ELECTRICITY GROUP plc
(pound)200,000,000
9 1/4 per cent, Bonds due 2020
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Trust Deed, as of the date hereof; (pound)[ ] principal amount
of the above-captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
l.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended, then this is also to certify with respect to such principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organisations entitled to a portion of such principal amount, certifications with respect to such portion, substantially to the effect set forth in the Trust Deed.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
*Dated
[Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System] [Cedel, societe anonyme]
By ___________________ Authorised Signatory
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
*Dated
By _________________________
[Name of person giving certification] (As, or as agent for, the beneficial owner(s) of those of the Securities to which this certification relates)
THE SECOND SCHEDULE
Part I
- FORM OF ORIGINAL BEARER BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
(pound)[1,000] [10,000] [100,000] XS0055251010 [SERIES] [Serial No.]
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 2366995)
(pound)200,000,000 9 1/4 PER CENT. BONDS DUE 2020
The issue of the Bonds was authorised by resolutions of the Board of Directors of Yorkshire Electricity Group plc (the "Issuer") passed on 15th December, 1994 and by resolutions of a duly authorised Committee of the Board of Directors of the Issuer passed on 4th and 5th January, 1995.
This Bond forms one of a series of Bonds constituted by a Trust Deed (the "Trust
Deed") dated 17th January, 1995 made between the Issuer and Bankers Trustee
Company Limited as trustee for the holders of the Bonds and issued either as
bearer bonds in the denominations of (pound)1,000, (pound)10,000 and
(pound)100,000 each with Coupons and one Talon attached or as registered bonds
in the denomination of (pound)1 each or an integral multiple thereof in an
aggregate principal amount of (pound)200,000,000.
The Issuer for value received and subject to and in accordance with the Conditions endorsed hereon hereby promises to pay to the bearer on 17th January, 2020 (or on such earlier date as the principal sum hereunder mentioned may become repayable in accordance with the said Conditions) the principal sum of:
(pound)[1,000] [10,000] [100,000] ([One] [Ten] [One Hundred] Thousand Pounds Sterling)
together with interest on the said principal sum at the rate of 9 1/4 per cent. per annum payable annually in arrear on 17th January and together with such other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the Trust Deed.
Neither this Bond nor the Coupons and Talon appertaining hereto shall be or become valid or obligatory for any purpose unless and until this Bond has been authenticated by or on behalf of the Principal Paying Agent.
IN WITNESS whereof this Bond has been executed on behalf of the issuer.
YORKSHIRE ELECTRICITY GROUP plc
By ________________________________
Director
Dated as of 17th January, 1995.
Issued in London, England.
Certificate of authentication
This Bond is duly authenticated (without recourse, warranty or liability).
Duly authorized
for and on behalf of
Morgan Guaranty Trust Company
of New York, London Office,
as Principal Paying Agent
- FORM OF ORIGINAL COUPON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE ELECTRICITY GROUP PLC
(pound)200,000,000 9 1/4 PER CENT. BONDS DUE 2020
Coupon appertaining to a Bond in the denomination of (pound)[1,000] [10,000]
[100,000].
This Coupon is separately Coupon for
negotiable, payable to bearer, and (pound)[92.50] [925.00] [9,250.00]
subject to the Conditions of the due on
said Bonds. 17th January, [ ]
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[No.] (pound)[1,000] [10,000] [100,000] XS0055251010 [Series] [Serial No.]
- FORM OF ORIGINAL TALON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE ELECTRICITY GROUP PLC
(pound)200,000,000 9 1/4 PER CENT. BONDS DUE 2020
Talon appertaining to a Bond in the denomination of
(pound)[1,000][10,000][100,000]
On and after 17th January, [2005/2015] [ten/five] further Coupons [and a further Talon] will be issued at the specified office of any of the Paying Agents set out on the reverse hereof (and/or any other or further Paying Agents and/or specified offices as may from time to time be duly appointed and notified to the Bondholders) upon production and surrender of this Talon.
[No.] [1,000] [10,000] [100,000] XS0055251010 [Series] [Serial No.]
On the back of the Original Coupons and the Original Talons:
PRINCIPAL PAYING AGENT
Morgan Guaranty Trust Company of New York, 60 Victoria Embankment London EC4Y 0JP
OTHER PAYING AGENTS
Morgan Guaranty Trust Company Banque Paribas Luxembourg S.A.
of New York 10A Boulevard Royal
Avenue des Arts 35 L-2093 Luxembourg
B-1040 Brussels
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Part II
- FORM OF ORIGINAL REGISTERED BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
Certificate Number Transfer No. Holder Code Registration Amount Date (pound)
YORKSHIRE ELECTRICITY GROUP plc
(Incorporated in England with limited liability under the Companies Act 1985 with registered number 2366995)
(pound)200,000,000 9 1/4 PER CENT,
BONDS DUE 2020
Interest at the rate of 9 1/4 per cent. per annum is payable on the principal amount of this Registered Bond annually in arrear on 17th January in each year, subject to and in accordance with the Conditions endorsed hereon and the provisions of the Trust Deed dated 17th January, 1995 constituting the Bonds.
THIS IS TO CERTIFY that ________________________ is/are the registered holder(s) of _________________ in principal amount of the above-mentioned Registered Bonds and is/are entitled on 17th January, 2020 (or on such earlier date as such principal amount may become repayable in accordance with the Conditions) to the repayment of such principal amount together with such other amounts (if any) as may be payable, all subject to and in accordance with the said Conditions and the provisions of the said Trust Deed.
IN WITNESS whereof this Registered Bond has been executed on behalf of the Issuer.
YORKSHIRE ELECTRICITY GROUP plc
By: ___________________________
Director
This Certificate must be surrendered before any transfer of the whole or part of the Registered Bonds herein mentioned can be registered.
- FORM OF TRANSFER OF REGISTERED BOND -
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
(Please print or type name and address (including postal code) of transferee)
(pound) ________________ principal amount of this Registered Bond and all rights hereunder, hereby irrevocably constituting and appointing _____________________ as attorney to transfer such principal amount of this Bond in the register maintained by YORKSHIRE ELECTRICITY GROUP plc with full power of substitution.
Signature(s) of transferor(s) ____________________
Date: __________________
N.B.:
1. This form of transfer must be accompanied by such documents, evidence and information as may be required pursuant to the Conditions and must be executed under the hand of the transferor or, if the transferor is a corporation, either under its common seal or under the hand of two of its officers duly authorised in writing and, in such latter case, the document so authorising such officers must be delivered with this form of transfer.
2. In each case the signature(s) must be guaranteed by a commercial bank with a correspondent bank in New York City, Luxembourg or London or by an institution which is a member of The New York Stock Exchange or The American Stock Exchange in New York City or the Luxembourg Stock Exchange or The Stock Exchange in London.
3. The signature(s) on this form of transfer must correspond with the name(s) at it/they appear(s) on the face of this Registered Bond in every particular, without alteration or enlargement or any change whatever.
4. Registered Bonds are only transferable in amounts of (pound)1 or any integral multiples thereof.
Part III
CONDITIONS OF THE BONDS -
[To be photocopied from final Offering Circular]
PRINCIPAL PAYING AGENT
Morgan Guaranty Trust Company of New York
60 Victoria Embankment
London EC4Y 0JP
OTHER PAYING AGENTS
Morgan Guaranty Trust Company Banque Paribas Luxembourg S.A.
of New York 10A Boulevard Royal
Avenue des Arts 35 L-2093 Luxembourg
B-1040 Brussels
REGISTRAR
For registration of transfers: For payments of principal:
The Royal Bank of Scotland plc The Royal Bank of Scotland plc
Registrar's Department 67 Lombard Street
P.O. Box 39 London EC3P 3DL
Caxton House
Redcliffe Way
Bristol BS99 7XF
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and/or such other or further Principal Paying Agent, other Paying Agents and Registrar and/or specified offices as may from time to time be appointed by the Issuer with the approval of the Trustee and notice of which has been given to the Bondholders.
THE THIRD SCHEDULE
REGISTER AND TRANSFER OF REGISTERED SECURITIES
1. The Issuer shall at all times ensure that the Registrar maintains in Bristol, London, or at such other place as the Trustee may agree, a register showing the amount of the Registered Securities from time to time outstanding and the dates of issue and all subsequent transfers and changes of ownership thereof and the names and addresses of the holders of the Registered Securities. The Trustee and the holders of the Registered Securities or any of them and any person authorised by it or any of them may at all reasonable times during office hours inspect the register and take copies of or extracts from it. The register may be closed by the Issuer for such periods at such times (not exceeding in total 30 days in any one year) as it may think fit.
2. Each Registered Security shall have an identifying certificate number which shall be entered on the register.
3. The Registered Securities are transferable by execution of the form of transfer endorsed thereon under the hand of the transferor or, where the transferor is a corporation, under its common seal or under the hand of two of its officers duly authorised in writing. In each case the signature(s) must be guaranteed by a commercial bank with a correspondent bank in New York City, Luxembourg or London or by an institution which is a member of The New York Stock Exchange or The American Stock Exchange in New York City or the Luxembourg Stock Exchange or The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited.
4. The Registered Securities to be transferred must be delivered for registration to the specified office of the Registrar or any Transfer Agent with the form of transfer endorsed thereon duly completed and executed and must be accompanied by such documents, evidence and information as may be required pursuant to the Conditions and such other evidence as the Issuer may reasonably require to prove the tide of the transferor or his right to transfer the Registered Securities and, if the form of transfer is executed by some other person on his behalf or in the case of the execution of a form of transfer on behalf of a corporation by its officers, the authority of that person or those persons to do so.
5. The executors or administrators of a deceased holder of Registered Securities (not being one of several joint holders) and in the case of the death of one or more of several joint holders the survivor or survivors of such joint holders shall be the only person or persons recognised by the Issuer as having any title to such Registered Securities.
6. Any person becoming entitled to Registered Securities in consequence of the death or bankruptcy of the holder of such Registered Securities may upon producing such evidence that he holds the position in respect of which he proposes to act under this paragraph or of his title as the Issuer shall require be registered himself as the holder of such Registered Securities or, subject to the Preceding paragraphs as to transfer, may transfer such Registered Securities. The issuer shall be at liberty to retain any amount payable upon the Registered Securities
to which any person is so entitled until such person shall be registered as aforesaid or shall duly transfer the Registered Securities.
7. Unless otherwise requested by him, the holder of Registered Securities of any series shall be entitled to receive only one Registered Security in respect of his entire holding of such series.
8. The joint holders of Registered Securities of any series shall be
entitled to one Registered Security only in respect of their joint
holding of such series which shall, except where they otherwise direct,
be delivered to the joint holder whose name appears first in the
register of the holders of Registered Securities in respect of such
joint holding.
9. Where a holder of Registered Securities has transferred part only of
his holding of any series there shall be delivered to him without
charge a Registered Security in respect of the balance of such holding.
10. The Issuer shall make no charge to the Holders for the registration of any holding of Registered Securities or any transfer thereof or for the issue thereof or for the delivery, thereof at the specified office of the Registrar or of any Transfer Agent or by post to the address specified by the Holder. If any Holder entitled to receive a Registered Security wishes to have the same delivered to him otherwise than at the specified office of the Registrar or of any Transfer Agent, such delivery shall be made, upon his written request to the Registrar or such Transfer Agent, at his risk and (except where sent by post to the address specified by the Holder) at his expense.
11. The holder of a Registered Security may (to the fullest extent permitted by applicable laws) be treated at all times, by all persons and for all purposes as the absolute owner of such Registered Security notwithstanding any notice any person may have of the right, title, interest or claim of any other person thereto. The Issuer and the Trustee shall not be bound to see to the execution of any trust to which any Registered Security may be subject and no notice of any trust shall be entered on the register. The holder of a Registered Security will be recognised by the Issuer as entitled to his Registered Security free from any equity, set-off or counterclaim on the part of the Issuer against the original or any intermediate holder of such Registered Security.
THE FOURTH SCHEDULE
PROVISIONS FOR MEETINGS OF HOLDERS
1. (A) As used in this Schedule the following expressions shall have the following meanings unless the context otherwise requires:
(i) "voting certificate" shall mean an English language certificate issued by a Paying Agent and dated in which it is stated:
(a) that on the date thereof Bearer Securities (not being Bearer Securities in respect of which a block voting instruction has been issued and is outstanding in respect of the meeting specified in such voting certificate or any adjourned such meeting) were deposited with such Paying Agent or (to the satisfaction of such Paying Agent) were held to its order or under its control and that no such Bearer Securities will cease to be so deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such certificate or, if later, of any adjourned such meeting; and
(2) the surrender of the certificate to the Paying Agent who issued the same; and
(b) that the bearer thereof is entitled to attend and vote at such meeting and any adjourned such meeting in respect of the Bearer Securities represented by such certificate;
(ii) "block voting instruction" shall mean an English language document issued by a Paying Agent and dated in which:
(a) it is certified that Bearer Securities (not being Bearer Securities in respect of which a voting certificate has been issued and is outstanding in respect of the meeting specified in such block voting instruction and any adjourned such meeting) have been deposited with such Paying Agent or (to the satisfaction of such Paying Agent) were held to its order or under its control and that no such Bearer Securities will cease to be so deposited or held until the first to occur of:
(1) the conclusion of the meeting specified in such document or, if later, of any adjourned such meeting; and
(2) the surrender to the Paying Agent not less than 48 hours before the time for which such meeting or any adjourned such meeting is convened of the receipt issued by such Paying Agent in respect of each such deposited Bearer Security which is to be released or (as the case may require) the Bearer Security or Bearer Securities ceasing
with the agreement of the Paying Agent to be
held to its order or under its control and
the giving of notice by the Paying Agent to
the Issuer in accordance with paragraph 17
hereof of the necessary amendment to the
b1ock voting instruction;
(b) it is certified that each holder of such Bearer Securities has instructed such Paying Agent that the vote(s) attributable to the Bearer Security or Bearer Securities so deposited or held should be cast in a particular way in relation to the resolution or resolutions to be put to such meeting or any adjourned such meeting and that all such instructions are during the period commencing hours prior to the time for which such meeting or any adjourned such meeting is convened and ending at the conclusion or adjournment thereof neither revocable nor capable of amendment;
(c) the aggregate principal amount of the Bearer Securities so deposited or held are listed distinguishing with regard to each such resolution between those in respect of which instructions have been given as aforesaid that the votes attributable thereto should be cast in favour of the resolution and those in respect of which instructions have been so given that the votes attributable thereto should be cast against the resolution; and
(d) one or more persons named in such document (each hereinafter called a "proxy") is or are authorised and instructed by such Paying Agent to cast the votes attributable to the Bearer Securities so listed in accordance with the instructions referred to in (c) above as set out in such document;
(iii) "24 hours" shall mean a period of 24 hours including all or part of a day upon which banks are open for business in both the place where the relevant meeting is to be held and in each of the places where the Paying Agents have their specified offices (disregarding for this purpose the day upon which such meeting is to be held) and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of a day upon which banks are open for business in all of the places as aforesaid; and
(iv) "48 hours" shall mean a period of 48 hours including all or part of two days upon which banks are open for business both in the place where the relevant meeting is to be held and in each of the places where the Paying Agents have their specified offices (disregarding for this purpose the day upon which such meeting is to be held) and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of two days upon which banks are open for business in all of the places as aforesaid.
(B) A holder of a Bearer Security may obtain a voting certificate in respect of such Bearer Security from a Paying Agent or require a Paying Agent to issue a block voting instruction in respect of such Bearer Security by depositing such Bearer Security with such Paying Agent or (to the satisfaction of such Paying Agent) by such Bearer before being held to its order or under its control, in each case not less than 48 hours the time fixed for the relevant meeting and on the terms set out in sub-paragraph (i)(a) or (ii)(a) above (as the case may be), and (in the case of a block voting instruction) instructing
such Paying Agent to the effect set out in sub-paragraph (ii)(b) above. The holder of any voting certificate or the proxies named in any block voting instruction shall for all purposes in connection with the relevant meaning or adjourned meeting of Holders be deemed to be the holder of the Bearer Securities to which such voting certificate or block voting instruction relates and the Paying Agent with which such Bearer Securities have been deposited or the person holding the same to the order or under the control of such Paying Agent shall be deemed for such purposes not to be the holder of those Bearer Securities.
(C) (i) A holder of Registered Securities may, by an instrument in
writing in the English language (a "form of proxy") signed by
the holder or, in the case of a corporation, executed under
its common seal or signed on its behalf by an attorney or a
duly authorised officer of the corporation and delivered to
the specified office of the Registrar not less than 48 hours
before the time fixed for the relevant meeting, appoint any
person (a "proxy") to act on his or its behalf in connection
with any meeting of the Holders and any adjourned such
meeting.
(ii) Any holder of Registered Securities which is a corporation may
by resolution of its directors or other governing body
authorise any person to act as its representative (a
"representative") in connection with any meeting of the
Holders and any adjourned such meeting.
(iii) Any proxy appointed pursuant to sub-paragraph (i) above or
representative appointed pursuant to sub-paragraph (ii) above
shall so long as such appointment remains in force be deemed,
for all purposes in connection with the relevant meeting or
adjourned meeting of the Holders, to be the holder of the
Registered Securities to which such appointment relates and
the holder of the Registered Securities shall be deemed for
such purposes not to be the holder.
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2. The Issuer or the Trustee may at any time and the Issuer shall upon a requisition in writing signed by the holders of not less than one-tenth in principal amount of the Securities of any series for the time being outstanding convene a meeting of the Holders and if the Issuer makes default for a period of seven days in convening such a meeting the same may be convened by the Trustee or the requisitionists. Every such meeting shall be held at such time and place as the Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is given and the day on which the meeting is to be held) specifying the place, day and hour of meeting shall be given to the Holders prior to any meeting of the Holders in the manner provided by Condition 15. Such notice, which shall be in the English language, shall state generally the nature of the business to be transacted at the meeting thereby convened but (except for an Extraordinary Resolution) it shall not be necessary to specify in such notice the terms of any resolution
to be proposed. Such notice shall include statements, if applicable, to the effect that (i) Bearer Securities may, not less than 48 hours before the time fixed for the meeting, be deposited with Paying Agents or (to their satisfaction) held to their order or under their control for the purpose of obtaining voting certificates or appointing proxies and (ii) the holders of Registered Securities may appoint proxies by executing and delivering a form of proxy in the English language to the specified office of the Registrar not less than 48 hours before the time fixed for the meeting or, in the case of corporations, may appoint representatives by resolution of their directors or other governing body. A copy of the notice shall be sent by post to the Trustee (unless the meeting is convened by the Trustee) and to the Issuer (unless the meeting is convened by the Issuer).
4. A person (who may but need not be a Holder) nominated in writing by the Trustee shall be entitled to take the chair at the relevant meeting or adjourned meeting but if no such nomination is made or if at any meeting or adjourned meeting the person nominated shall not be present within 15 minutes after the time appointed for holding the meeting or adjourned meeting the Holders present shall choose one of their number to be Chairman. The Chairman of an adjourned meeting need not be the same person as was Chairman of the meeting from which the adjournment took place.
5. At any such meeting one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than one- twentieth of the principal amount of the Securities for the time being outstanding shall (except for the purpose of passing an Extraordinary Resolution) form a quorum for the transaction of business and no business (other than the choosing of a Chairman) shall be transacted at any meeting unless the requisite quorum be present at the commencement of the relevant business. The quorum at any such meeting for passing an Extraordinary Resolution shall (subject as provided below) be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate a clear majority in principal amount of the Securities for the time being outstanding PROVIDED THAT at any meeting the business of which includes any of the following matters (each of which shall, subject only to Clause 18(B)(ii), only be capable of being effected after having been approved by Extraordinary Resolution) namely:
(i) reduction or cancellation of the amount payable or, where applicable, modification (except where such modification is, in the opinion of the Trustee, bound to result in an increase), of the method of calculating the amount payable or modification of the date of payment or, where applicable, of the method of calculating the date of payment in respect of any principal, premium or interest in respect of the Securities;
(ii) alteration of the currency in which payments under the Securities and Coupons are to be made;
(iii) alteration of the majority required to pass an Extraordinary Resolution;
(iv) the sanctioning of any such scheme or proposal as is described in paragraph 18(I) below; and
(v) alteration of this proviso or the proviso to paragraph 6 below;
the quorum shall be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than two-thirds of the principal amount of the Securities for the time being outstanding.
6. If within 15 minutes (or such longer period not exceeding 30 minutes as the Chairman may decide) after the time appointed for any such meeting a quorum is not present for the transaction of any particular business, then, subject and without prejudice to the transaction of the business (if any) for which a quorum is present, the meeting shall if convened upon the requisition of Holders be dissolved. In any other case it shall stand adjourned to the same day in the next week (or if such day is a public holiday the next succeeding business day) at the same time and place (except in the case of a meeting at which an Extraordinary Resolution is to be proposed in which case it shall stand adjourned for such period, being not less than 14 clear days nor more than 42 clear days, and to such place as may be appointed by the Chairman either at or subsequent to such meeting and approved by the Trustee). If within 15 minutes (or such longer period not exceeding 30 minutes as the Chairman may decide) after the time appointed for any adjourned meeting a quorum is not present for the transaction of any particular business, then, subject and without prejudice to the transaction of the business (if any) for which a quorum is present, the Chairman may either (with the approval of the Trustee) dissolve such meeting or adjourn the same for such period, being not less than 14 clear days (but without any maximum number of clear days), and to such place as may be appointed by the Chairman either at or subsequent to such adjourned meeting and approved by the Trustee, and the provisions of this sentence shall apply to all further adjourned such meetings. At any adjourned meeting one or more persons present holding Securities or voting certificates or being proxies or representatives (whatever the principal amount of the Securities so held or represented by them) shall (subject as provided below) form a quorum and shall (subject as provided below) have power to pass any Extraordinary Resolution or other resolution and to decide upon all matters which could properly have been dealt with at the meeting from which the adjournment took place had the requisite quorum been present PROVIDED THAT at any adjourned meeting the quorum for the transaction of business comprising any of the matters specified in the proviso to paragraph 5 above shall be one or more persons present holding Securities or voting certificates or being proxies or representatives and holding or representing in the aggregate not less than one-third of the principal amount of the Securities for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is to be submitted shall be given in the same manner as notice of an original meeting but as if 10 were substituted for 21 in paragraph 3 above and such notice shall state the relevant quorum. Subject as aforesaid it shall not be necessary to give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first instance by a show of hands and in case of equality of votes the Chairman shall both on a show of hands and on a poll have a casting vote in addition to the vote or votes (if any) to which he may be entitled as a Holder or as a holder of a voting certificate or as a proxy or as a representative.
9. At any meeting unless a poll is (before or on the declaration of the result of the show of hands) demanded by the Chairman, the Issuer, the Trustee or any person present holding a Security or a voting
certificate or being a proxy or representative (whatever the principal amount of the Securities so held or represented by him) a declaration by the Chairman that a resolution has been carried or carried by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so demanded it shall betaken in such manner and subject as hereinafter provided either at once or after an adjournment as the Chairman directs and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded as at the date of the taking of the poll. The demand for a poll shall not prevent the continuance of the meeting for the transaction of any business other than the motion on which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such meeting adjourn the same from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully (but for lack of required quorum) have been transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or on any question of adjournment shall be taken at the meeting without adjournment.
13. The Trustee and its lawyers and financial advisers and any director, officer or employee of a corporation being a trustee of these presents and any director or officer of the Issuer and its lawyers and its accountants and financial advisers and any other person authorised so to do by the Trustee may attend and speak at any meeting. Save as aforesaid, but without prejudice to the proviso to the definition of "outstanding" in Clause 1, no person shall be entitled to attend and speak nor shall any person be entitled to vote at any meeting of the Holders or join with others in requesting the convening of such a meeting or to exercise the rights conferred on the Holders by Conditions 11 and 12 unless he either produces the Bearer Security or Bearer Securities of which he is the holder or a voting certificate or is a proxy or a representative or is the holder of a Registered Security or Registered Securities. No person shall be entitled to vote at any meeting in respect of Securities held by, for the benefit of, or on behalf of, the Issuer, any Subsidiary of the Issuer, any holding company of the Issuer or any other Subsidiary of any such holding company. Nothing herein shall prevent any of the proxies named in any block voting instruction or form of proxy or any representative from being a director, officer or representative of or others connected with the Issuer.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and produces a Bearer Security or voting certificate or is a holder of Registered Securities or is a proxy or representative shall have one vote; and
(B) on a poll every person who is so present shall have one vote in respect of each (pound)1 or such other amount as the Trustee may in its absolute discretion stipulate (or, in the case of meetings of holders of Securities denominated in another currency, such amount in such other currency as the
Trustee in its absolute discretion may stipulate) in principal amount of the Securities so produced or represented by the voting certificate so produced or in respect of which he is a proxy or representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any block voting instruction or form of proxy any person entitled to more than one vote need not use all his votes or cast all the votes to which he is entitled in the same way.
15. The proxies named in any block voting instruction or form of proxy and representatives need not be Holders.
16. Each block voting instruction together (if so requested by the Trustee) with proof satisfactory to the Trustee of its due execution on behalf of the relevant Paying Agent and each form of proxy shall be deposited by the relevant Paying Agent or (as the case may be) by the Registrar at such place as the Trustee shall approve not less than 24 hours before the time appointed for holding the meeting or adjourned meeting at which the proxies named in the block voting instruction or form of proxy propose to vote and in default the block voting instruction or form of proxy shall not be treated as valid unless the Chairman of the meeting decides otherwise before such meeting or adjourned meeting proceeds to business. A nationally certified copy of each block voting instruction and form of proxy shall be deposited with the Trustee before the commencement of the meeting or adjourned meeting but the Trustee shall not thereby be obliged to investigate or be concerned with the validity of or the authority of the proxies named in any such block voting instruction or form of proxy.
17. Any vote given in accordance with the terms of a block voting instruction or form of proxy shall be valid notwithstanding the previous revocation or amendment of the block voting instruction or form of proxy or of any of the Holders' instructions pursuant to which it was executed provided that no intimation in writing of such revocation or amendment shall have been received from the relevant Paying Agent or in the case of a Registered Security from the holder thereof by the Issuer at its registered office (or such other place as may have been required or approved by the Trustee for the purpose) by the time being 24 hours and 48 hours respectively before the time appointed for holding the meeting or adjourned meeting at which the block voting instruction or form of proxy is to be used.
18. A meeting of the Holders shall in addition to the powers hereinbefore given have the following powers exercisable only by Extraordinary Resolution (subject to the provisions relating to quorum contained in paragraphs 5 and 6 above) namely:
(A) Power to sanction any compromise or arrangement proposed to be made between the Issuer, the Trustee, any Appointee and the Holders and Couponholders or any of them.
(B) Power to sanction any abrogation, modification, compromise or arrangement in respect of the rights of the Trustee, any Appointee, the Holders, the Couponholders or the Issuer against any other or others of them or against any of their property whether such rights shall arise under these presents or otherwise.
(C) Power to assent to any modification of the provisions of these presents which shall be proposed by the Issuer, the Trustee or any Holder.
(D) Power to give any authority or sanction which under the provisions of these presents is required to be given by Extraordinary Resolution.
(E) Power to appoint any persons (whether Holders or not) as a committee or committees to represent the interests of the Holders and to confer upon such committee or committees any powers or discretions which the Holders could themselves exercise by Extraordinary Resolution.
(F) Power to approve of a person to be appointed a trustee and power to remove any trustee or trustees for the time being of these presents.
(G) Power to discharge or exonerate the Trustee and/or any Appointee from all liability in respect of any act or omission for which the Trustee and/or such Appointee may have become responsible under these presents.
(H) Power to authorise the Trustee and/or any Appointee to concur in and execute and do all such deeds, instruments, acts and things as may be necessary to carry out and give effect to any Extraordinary Resolution.
(I) Power to sanction any scheme or proposal for the exchange or sale of the Securities for or the conversion of the Securities into or the cancellation of the Securities in consideration of shares, stock, bonds, notes, debentures, debenture stock and/or other obligations and/or securities of the Issuer or any other company formed or to be formed, or for or into or in consideration of cash, or partly for or into or in consideration of such shares, stock, bonds, notes, debentures, debenture stock and/or other obligations and/or securities as aforesaid and partly for or into or in consideration of cash.
19. Any resolution passed at a meeting of the Holders duly convened and held in accordance with these presents shall be binding upon all the Holders whether present or not present at such meeting and whether or not voting and upon all Couponholders and each of them shall be bound to give effect thereto accordingly and the passing of any such resolution shall be conclusive evidence that the circumstances justify the passing thereof. Notice of the result of the voting on any resolution duly considered by the Holders shall be published in accordance with Condition 15 by the Issuer within 14 days of such result being known PROVIDED THAT the non-publication of such notice shall not invalidate such result.
20. The expression "Extraordinary Resolution" when used in these presents means a resolution passed at a meeting of the Holders duly convened and held in accordance with these presents by a majority consisting of not less than three-fourths of the persons voting thereat upon a show of hands or if a poll is duly demanded by a majority consisting of not less than three-fourths of the votes cast on such poll.
21. Minutes of all resolutions and proceedings at every meeting of the Holders shall be made and entered in books to be from time to time provided for that purpose by the Issuer and any such Minutes as aforesaid if purporting to be signed by the Chairman of the meeting at which such resolutions were passed or proceedings transacted shall be conclusive evidence of the matters therein contained and until the contrary is proved every such meeting in respect of the proceedings of which Minutes have been made shall be deemed to have been duly held and convened and all resolutions passed or proceedings transacted thereat to have been duly passed or transacted.
22. (A) If and whenever the Issuer shall have issued and have out- standing Securities of more than one series the foregoing provisions of this Schedule shall have effect subject to the following modifications:
(i) a resolution which in the opinion of the Trustee affects the Securities of only one series shall be deemed to have been duly passed if passed at a separate meeting of the holders of the Securities of that series;
(ii) a resolution which in the opinion of the Trustee affects the Securities of more than one series but does not give rise to a conflict of interest between the holders of Securities of any of the series so affected shall be deemed to have been duly passed if passed at a single meeting of the holders of the Securities of all the series so affected,
(iii) a resolution which in the opinion of the Trustee affects the Securities of more than one series and gives or may give rise to a conflict of interest between the holders of the Securities of one series or group of series so affected and the holders of the Securities of another series or group of series so affected shall be deemed to have been duly passed only if passed at separate meetings of the holders of the Securities of each series or group of series so affected, and
(iv) to all such meetings all the preceding provisions of this Schedule shall mutatis mutandis apply as though references therein to Securities, Holders and holders were references to the Securities of the series or group of series in question or to the holders of such Securities, as the case may be.
(B) If the Issuer shall have issued and have outstanding Securities which are not denominated in pounds sterling, in the case of any meeting of holders of Securities of more
than one currency the principal amount of such Securities shall (i) for the purposes of paragraph 2 above be the equivalent in pounds sterling at the spot rate of a bank nominated by the Trustee for the conversion of the relevant |
currency or currencies into pounds sterling on the seventh dealing day prior to the day on which the requisition in writing is received by the Issuer and (ii) for the purposes of paragraphs 5, 6 and 14 above (whether in respect of the meeting or any adjourned such meeting or any poll resulting therefrom) be the equivalent at such spot rate on the seventh dealing day prior to the day of such meeting. In such circumstances, on any poll each person present shall have one vote for each(pound)1 (or such other pound sterling
amount as the Trustee may in its absolute discretion stipulate) in principal amount of the Securities (converted as above) which he holds or represents.
23. Subject to all other provisions of these presents the Trustee may without the consent of the Issuer, the Holders or the Couponholders prescribe such further regulations regarding the requisitioning and/or the holding of meetings of Holders and attendance and voting thereat as the Trustee may in its sole discretion think fit.
THE COMMON SEAL of )
YORKSHIRE ELECTRICITY ) SEAL
GROUP plc )
was affixed to this deed in the )
presence of:
A. W. J. COLEMAN
Director
R. DICKINSON
Secretary
THE COMMON SEAL of )
BANKERS TRUSTEE ) SEAL
COMPANY LIMITED was )
affixed to this deed in the )
presence of:
C. STRAKOSCH
Director
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MARK P. JONES
Assistant Secretary