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Facility Agreement

 

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Title:

Facility Agreement

Entities:

Midamerican Energy Holdings Co /New/; Royal Bank of Scotland plc

Date:

2005

Size:

199KB total

Price:

$77

ID:

#1623803

 

 

► Loans ► Facility Agreements

 

 

Start of Preview


C  L  I  F  F  O  R  D LIMITED LIABILITY PARTNERSHIP 
C  H  A  N  C  E
 
  CONFORMED COPY 
 
 
100,000,000
 
FACILITY AGREEMENT
 
dated 4 APRIL 2005
 
for
 
CE ELECTRIC UK FUNDING COMPANY
 
arranged by
 
LLOYDS TSB BANK PLC
THE ROYAL BANK OF SCOTLAND PLC
 
with
 
LLOYDS TSB BANK PLC
 
acting as Agent
 
 
 
MULTICURRENCY REVOLVING FACILITY AGREEMENT
 
  

 

 

 




CONTENTS
 
Clause
 
Page
 
1.
Definitions And Interpretation
1
 
2.
The Facility
14
 
3.
Purpose
14
 
4.
Conditions Of Utilisation
14
 
5.
Utilisation
18
 
6.
Optional Currencies
19
 
7.
Repayment
20
 
8.
Prepayment And Cancellation
20
 
9.
Interest
23
 
10.
Interest Periods
24
 
11.
Changes To The Calculation Of Interest
24
 
12.
Fees
25
 
13.
Tax Gross Up And Indemnities
27
 
14.
Increased Costs
30
 
15.
Other Indemnities
31
 
16.
Mitigation By The Lenders
32
 
17.
Costs And Expenses
33
 
18.
Guarantee And Indemnity
34
 
19.
Representations
37
 
20.
Information Undertakings
39
 
21.
Financial Covenants
43
 
22.
General Undertakings
48
 
23.
Events Of Default
50
 
24.
Changes To The Lenders
54
 
25.
Role Of The Agent And The Arranger
58
 
26.
Conduct Of Business By The Finance Parties
63
 
27.
Sharing Among The Finance Parties
63
 
28.
Payment Mechanics
65
 
29.
Set-Off
67
 
30.
Notices
67
 
31.
Calculations And Certificates
69
 
32.
Partial Invalidity
69
 
33.
Remedies And Waivers
69
 
34.
Amendments And Waivers
70
 
35.
Counterparts
70
 
36.
Governing Law
71
 
37.
Enforcement
71
 
Schedule 1 The Parties
72
Part I The Obligors
72
Part II The Original Lenders
73
 
Schedule 2 Conditions Precedent
 
74
Conditions Precedent To Initial Utilisation
74
 
Schedule 3 Requests
 
76
 
Schedule 4 Mandatory Cost Formulae
 
77
 
Schedule 5 Form Of Transfer Certificate
 
80
 
Schedule 6
 
82
Part I Form Of Preliminary Conversion Notice
82
Part II Form Of Secondary Conversion Notice
83
 
Schedule 7
 
84
 
Schedule 8 Form Of Compliance Certificate
 
86
 
Schedule 9 Lma Form Of Confidentiality Undertaking
 
88
Schedule 10 Timetables
93

 

 

UK/243825/09
  
R0021/NEW

 
CONFORMED COPY

THIS AGREEMENT is dated 4 April 2005 and made between:
 
(1)  
CE ELECTRIC UK FUNDING COMPANY (the "Company" and the "Guarantor");
 
(2)  
THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 (The Original Parties) as borrowers (together with the Company the "Borrowers");
 
(3)  
LLOYDS TSB BANK PLC and THE ROYAL BANK OF SCOTLAND PLC as mandated lead arranger(s) (whether acting individually or together the "Arranger");
 
(4)  
THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as lenders (the "Original Lenders"); and
 
(5)  
LLOYDS TSB BANK PLC as agent of the other Finance Parties (the "Agent").
 
IT IS AGREED as follows:
 
SECTION 1
INTERPRETATION
 
 
1  
DEFINITIONS AND INTERPRETATION
 
1.1  
Definitions
In this Agreement:
 
"Additional Cost Rate" has the meaning given to it in Schedule 4 (Mandatory Cost formulae).
 
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
 
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.
 
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
 
"Authority" means the Gas and Electricity Markets Authority (including Ofgem).
 
"Availability Period" means the period from and including the date of this Agreement to and including one Month prior to the Termination Date.
 
"Available Tranche A Commitment" means a Lender's Tranche A Commitment minus:
 
(a)  
the Base Currency Amount of its participation in any outstanding Tranche A Loans; and
 
(b)  
in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Tranche A Loans that are due to be made on or before the proposed Utilisation Date,
 
other than that Lender's participation in any Tranche A Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.
 

1


"Available Tranche A Facility" means the aggregate for the time being of each Lender's Available Tranche A Commitment.
 
"Available Tranche B Commitment" means a Lender's Tranche B Commitment minus:
 
(a)  
the Base Currency Amount of its participation in any outstanding Tranche B Loans; and
 
(b)  
in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Tranche B Loans that are due to be made on or before the proposed Utilisation Date,
 
other than that Lender's participation in any Tranche B Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.
 
"Available Tranche B Facility" means the aggregate for the time being of each Lender's Available Tranche B Commitment.
 
"Available Tranche C Commitment" means a Lender's Tranche C Commitment minus:
 
(a)  
the Base Currency Amount of its participation in any outstanding Tranche C Loans; and
 
(b)  
in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Tranche C Loans that are due to be made on or before the proposed Utilisation Date,
 
other than that Lender's participation in any Tranche C Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.
 
"Available Tranche C Facility" means the aggregate for the time being of each Lender's Available Tranche C Commitment.
 
"Base Currency" means sterling.
 
"Base Currency Amount" means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) adjusted to reflect any repayment or prepayment of the Loan.
 
"Break Costs" means the amount (if any) by which:
 
(a)  
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
 

2


exceeds:
 
(b)  
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
 
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London and:
 
(a)  
(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or
 
(b)  
(in relation to any date for payment or purchase of euro) any TARGET Day.
 
"Commitment" means the aggregate for the time being of each Lender's Tranche A Commitment, Tranche B Commitment and Tranche C Commitment.
 
"Commitment Fee Percentage" means in respect of any Obligor on any day, the percentage determined on the basis of the Margin applicable to such Obligor on such day (or that would be applicable had such Obligor drawn a Loan on such day) from time to time as set out in the following grid:
 
Margin (per cent per annum)
 
Commitment Fee Percentage
 
0.2%
 
30%
 
0.25%
 
30%
 
0.325%
 
30%
 
0.40%
 
40%
 
0.475%
 
40%
 
1.00%
 
45%
 
1.25%
 
45%
 
 
 
"Compliance Certificate" means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate).
 
"Competition Act" means the Competition Act 1998 (as amended, inter alia, by the Enterprise Act).
 

3


"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent.
 
"Default" means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
 
"DNO Licence" means in relation to each Regulated Borrower the distribution licence as amended from time to time, granted or treated as granted to it by the Authority under section 6(1)(c) of the Electricity Act.
 
"Electricity Act" means the Electricity Act 1989 (as amended, inter alia, by the Utilities Act 2000).
 
"Enforcement Order" means a final order or a provisional order as those terms are defined in Section 25 of the Electricity Act.
 
"Enterprise Act" means the Enterprise Act 2002.
 
"Environmental Claim" means any claim, proceeding or investigation by any person in respect of any Environmental Law.
 
"Environmental Law" means any applicable law in any jurisdiction in which any member of the Group conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants.
 
"Environmental Permits" means any permit, licence, consent, approval and other authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by the relevant member of the Group.
 
"EURIBOR" means, in relation to