EXHIBIT 4.8
TRUST SECURITIES GUARANTEE AGREEMENT
BETWEEN
YORKSHIRE POWER GROUP LIMITED
(AS GUARANTOR)
AND
THE BANK OF NEW YORK
(AS TRUSTEE)
DATED AS OF
MAY 1, 1998
CROSS-REFERENCE TABLE/1/
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
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310(a)..............................................................................4.01(a)h
310(b).........................................................................4.01(c), 2.08
310(c)..........................................................................Inapplicable
311(a)...............................................................................2.02(b)
311(b)...............................................................................2.02(b)
311(c)..........................................................................Inapplicable
312(a)...............................................................................2.02(a)
312(b)...............................................................................2.02(b)
313.....................................................................................2.03
314(a)..................................................................................2.04
314(b)..........................................................................Inapplicable
314(c)..................................................................................2.05
314(d)..........................................................................Inapplicable
314(e)......................................................................1.01, 2.05, 3.02
314(f)............................................................................2.01, 3.02
315(a)...............................................................................3.01(d)
315(b)..................................................................................2.07
315(c)..................................................................................3.01
315(d)................................................................................3.01(d)
315(e)...........................................................................Inapplicable
316(a)..........................................................................5.04(i), 2.06
316(b)...................................................................................5.03
316(c)...................................................................................2.02
317(a)...........................................................................Inapplicable
317(b)...........................................................................Inapplicable
318(a)................................................................................2.01(b)
318(b)...................................................................................2.01
318(c)................................................................................2.01(a)
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/1/This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS...................................................1
SECTION 1.01 DEFINITIONS..........................................1
ARTICLE II. TRUST INDENTURE ACT..........................................3
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.....................3
SECTION 2.02 LISTS OF HOLDERS OF SECURITIES.......................4
SECTION 2.03 REPORTS BY THE TRUSTEE...............................4
SECTION 2.04 PERIODIC REPORTS TO TRUSTEE..........................4
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.....4
SECTION 2.06 EVENTS OF DEFAULT; WAIVER............................4
SECTION 2.07 EVENT OF DEFAULT; NOTICE.............................1
SECTION 2.08 CONFLICTING INTERESTS................................5
ARTICLE III. POWERS DUTIES AND RIGHTS OF TRUSTEE.........................5
SECTION 3.01 POWERS AND DUTIES OF THE TRUSTEE.....................5
SECTION 3.02 CERTAIN RIGHTS OF TRUSTEE............................6
SECTION 3.03 COMPENSATION; FEES; INDEMNITY........................8
ARTICLE IV. TRUSTEE......................................................8
SECTION 4.01 TRUSTEE; ELIGIBILITY.................................8
SECTION 4.02 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEE......9
ARTICLE V. GUARANTEE.....................................................9
SECTION 5.01 GUARANTEE............................................9
SECTION 5.02 WAIVER OF NOTICE AND DEMAND..........................9
SECTION 5.03 OBLIGATIONS NOT AFFECTED............................10
SECTION 5.04 RIGHTS OF HOLDERS...................................10
SECTION 5.05 GUARANTEE OF PAYMENT................................11
SECTION 5.06 SUBROGATION.........................................11
SECTION 5.07 INDEPENDENT OBLIGATIONS.............................11
ARTICLE VI. SUBORDINATION...............................................11
SECTION 6.01 SUBORDINATION.......................................11
ARTICLE VII. TERMINATION................................................12
SECTION 7.01 TERMINATION.........................................12
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ARTICLE VIII. MISCELLANEOUS.............................................12
SECTION 8.01 SUCCESSORS AND ASSIGNS..............................12
SECTION 8.02 AMENDMENTS..........................................12
SECTION 8.03 NOTICES.............................................12
SECTION 8.04 BENEFIT.............................................12
SECTION 8.05 INTERPRETATION......................................13
SECTION 8.06 GOVERNING LAW.......................................13
SECTION 8.07 CONSENT TO JURISDICTION; APPOINTMENT OF AGENT TO
ACCEPT SERVICE OF PROCESS...........................14
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TRUST SECURITIES GUARANTEE AGREEMENT
This TRUST SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of May 1, 1998, between YORKSHIRE POWER GROUP LIMITED, a private limited company
incorporated under the laws of England and Wales (the "Guarantor"), and THE BANK
OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Trust
Securities (as defined herein) of YORKSHIRE CAPITAL TRUST I, a Delaware
statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of May 1, 1998, among the Trustee, the other Trustees
named therein, AEP Resources, Inc., an Ohio company, as Depositor, the
Guarantor, in its capacity as holder of the Control Certificate (as defined
herein) and the holders of undivided beneficial interests in the assets of the
Trust, the Trust is issuing $___,000,000 aggregate liquidation amount of its
___% Trust Originated Trust Securities (the "Trust Securities") representing
preferred undivided beneficial interests in the assets of the Trust and having
the terms set forth in the Trust Agreement;
WHEREAS, the Trust Securities will be issued by the Trust and the proceeds
thereof will be used to purchase the Junior Subordinated Debentures (as defined
in the Trust Agreement) issued by Yorkshire Power Finance Limited, a private
company with limited liability incorporated under the laws of the Cayman Islands
("Yorkshire Finance"), and such Junior Subordinated Debentures will be held by
the Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Trust Securities, the
Guarantor desires to irrevocably and unconditionally agree, to the extent set
forth herein, to pay to the Holders the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the payment for Trust Securities by
each Holder (as defined herein) thereof, which payment the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time of the
Trust Securities.
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions As used in this Guarantee Agreement, the terms
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set forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Trust Agreement as
in effect on the date hereof.
"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
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indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Control Certificate" has the meaning specified in the preamble to the
Trust Agreement.
"Control Party" means the holder of the Control Certificate, which, as of
the date of this Agreement, is the Guarantor.
"Event of Default" means a failure by the Guarantor to perform any of its
payment obligations under this Guarantee Agreement.
"The Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of May 1, 1998, among the US Affiliates and the Trust.
"Guarantee Payments" shall mean the following payments or distributions,
without duplication, with respect to the Trust Securities, to the extent not
paid or made by or on behalf of the Trust: (i) any accumulated and unpaid
distributions that are required to be paid on such Trust Securities but if and
only if and to the extent the Trust has sufficient funds available therefor to
make such payment; (ii) the redemption price, including all accrued and unpaid
distributions to the date of redemption (the "Redemption Price"), with respect
to the Trust Securities called for redemption by the Trust but if and only if
and to the extent that the Trust has sufficient funds available therefor to make
such payment; and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Trust (other than in connection with the distribution of
Junior Subordinated Debentures to the holders of Trust Securities or the
redemption of all of the Trust Securities), the lesser of (a) the aggregate of
the Liquidation Amount and all accrued and unpaid Distributions on the Trust
Securities to the date of payment, to the extent the Trust has sufficient funds
available therefor, and (b) the amount of assets of the Trust remaining
available for distribution to Holders in liquidation of the Trust (in either
case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records of
the Trust, of any Trust Securities; provided, however, that in determining
whether the holders of the requisite percentage of Trust Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, Yorkshire Finance, the Controller or the US Affiliates or any
Affiliate of the Guarantor, Yorkshire Finance, the Controller or the US
Affiliates.
"Indenture" means the Subordinated Note Indenture dated as of May 1, 1998,
among Yorkshire Finance, as Subordinated Debenture Issuer, the Guarantor, as
guarantor, and The Bank of New York, as trustee, as supplemented by the First
Supplemental Indenture dated as of May 1, 1998, by and among the Yorkshire
Finance, the Guarantor and The Bank of New York, as trustee.
"Majority in liquidation amount of Trust Securities" means a vote by
Holder(s) of Trust Securities, voting separately as a class, of more than 50% of
the liquidation amount of all Trust Securities outstanding at the time of
determination.
"Officers' Certificate" means, with respect to any Person (who is not an
individual), a certificate signed by the Chairman of the Board, the President or
a Vice President, Director, the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of such Person, and
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delivered to the Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Trustee, any managing
director, any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, or any other officer of the Corporate Trust
and Agency Group 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 that officer's knowledge of and familiarity with
the particular subject.
"Successor Trustee" means a successor Trustee possessing the qualifications
to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trustee" means The Bank of New York until a Successor Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Guarantee Agreement and thereafter means each such Successor Trustee.
"US Affiliates" means AEP Resources, Inc. and New Century International,
Inc. as parties to the Expense Agreement.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application.
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(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions; and
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(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.02 Lists of Holders of Securities.
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(a) The Guarantor shall furnish or cause to be furnished to the Trustee (a)
semiannually, not later than June 1 and December 1 in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the time
such list is furnished, and (b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to the time
such list is furnished; provided that, the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Trustee by the Guarantor or at
any time the Trustee is the Securities Registrar under the Trust Agreement. The
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Trustee shall comply with its obligations under Sections 311(a),
311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03 Reports by the Trustee. Within 60 days after May 15 of each
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year commencing May 15, 1999, the Trustee shall provide to the Holders of
the Trust Securities such reports as are required by Section 313(a) of the
Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Trustee shall also comply with
the other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.04 Periodic Reports to Trustee. The Guarantor shall provide to
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the Trustee such documents, reports and information as required by Section 314
of the Trust Indenture Act (if any) in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, and shall provide, within
120 days after the end of each of its fiscal years, the compliance certificate
required by Section 314(a)(4) of the Trust Indenture Act in the form and in the
manner required by such Section.
SECTION 2.05 Evidence of Compliance with Conditions Precedent. The
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Guarantor shall provide to the Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.06 Events of Default; Waiver. The Holders of a Majority in
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liquidation amount of Trust Securities may, by vote, on behalf of all of the
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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SECTION 2.07 Event of Default; Notice.
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(a) The Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders, notices
of all Events of Default known to the Trustee, unless such defaults have been
cured before the giving of such notice, provided that 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 and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any Event of
Default unless the Trustee shall have received written notice, or a Responsible
Officer charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
SECTION 2.08 Conflicting Interests . The Trust Agreement shall be deemed to
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be specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01 Powers and Duties of the Trustee.
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(a) This Guarantee Agreement shall be held by the Trustee for the benefit
of the Holders, and the Trustee shall not transfer this Guarantee Agreement to
any Person except the Trustee shall assign rights hereunder to a Holder to the
extent such assignment is necessary to exercise such Holder's rights pursuant to
Section 5.04 or to a Successor Trustee upon acceptance by such Successor Trustee
of its appointment to act as Successor Trustee. The right, title and interest of
the Trustee shall automatically vest in any Successor Trustee, and such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Trustee.
(b) If an Event of Default has occurred and is continuing, the Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the Trustee shall
exercise such of the rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
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(d) No provision of this Guarantee Agreement 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:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Guarantee Agreement, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case of any
such certificates or opinions that by any provision hereof 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 conform to the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) 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 a Majority in liquidation amount of the Trust
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 Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.02 Certain Rights of Trustee.
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(a) Subject to the provisions of Section 3.01:
(i) the Trustee may conclusively rely and shall be fully 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, sent or presented by the proper party or parties;
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(ii) any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee Agreement,
the Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and the
advice or opinion of such counsel with respect to legal matters 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 accordance
with such advice or opinion; such counsel may be counsel to the Guarantor
or any of its Affiliates and may include any of its employees; the Trustee
shall have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have provided to the
Trustee reasonable security and indemnity satisfactory to the Trustee
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Trustee; provided that nothing contained in this Section 3.02(a)(v) shall
be taken to relieve the Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it
by this Guarantee Agreement;
(vi) 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;
(vii) 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; and
(viii) whenever in the administration of this Guarantee Agreement the
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Trustee (i) may request instructions from the Holders, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions.
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(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power
or authority available to the Trustee shall be construed to be a duty.
SECTION 3.03 Compensation; Fees; Indemnity.
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The following expenses will be covered pursuant to the Expense Agreement:
(a) the payment to the Trustee from time to time of such compensation as
the Guarantor and the Trustee may agree for all services rendered by the Trustee
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, the reimbursement of
the Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Guarantee Agreement (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) the indemnification of the Trustee for any and all loss, damage,
claims, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this Guarantee Agreement, 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.
The provisions of this Section 3.03 shall survive the termination of this
Guarantee Agreement.
ARTICLE IV.
TRUSTEE
SECTION 4.01 Trustee; Eligibility.
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(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or
8
examining authority referred to above, then, for the purposes of this
Section 4.01(a)(ii), 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.
(b) If at any time the Trustee shall cease to be eligible to so act under
Section 4.01(a), the Trustee shall immediately resign in the manner and with the
effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the rights of the Trustee under the
penultimate paragraph thereof.
SECTION 4.02 Appointment, Removal and Resignation of Trustee.
------------ -----------------------------------------------
(a) Subject to Section 4.02(b), the Trustee may be appointed or removed
without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a Successor
Trustee shall have been appointed or until its removal or resignation. The
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing executed by the Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 4.02 within 60 days after delivery to
the Guarantor of an instrument of resignation, the resigning Trustee may
petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
ARTICLE V.
GUARANTEE
SECTION 5.01 Guarantee. The Guarantor irrevocably and unconditionally
------------ ---------
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the Guarantor
may have or assert against any Person. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders.
SECTION 5.02 Waiver of Notice and Demand. The Guarantor hereby waives
------------ ---------------------------
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may
9
apply, presentment, demand for payment, any right to require a proceeding first
against the Trust 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 5.03 Obligations Not Affected. The obligation of the Guarantor to
------------ ------------------------
make the Guarantee Payments under this Guarantee Agreement 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 Trust of any express or implied agreement,
covenant, term or condition relating to the Trust Securities to be performed or
observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Trust Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Trust Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Junior Subordinated Debentures permitted by the Indenture);
(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 Trust Securities, or any
action on the part of the Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Trust 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, it being the intent of
this Section 5.03 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
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04 Rights of Holders . The Guarantor expressly acknowledges that:
(i) this Guarantee Agreement will be deposited with the Trustee to be held
for the benefit of the Holders; (ii) the Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in liquidation amount of the Trust Securities have the right to
direct the time, method and place of conducting any proceeding for any
remedy available
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to the Trustee in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Trustee under this Guarantee Agreement, provided that
such direction shall not be in conflict with any rule of law or with this
Guarantee Agreement, and could not involve the Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate; and (iv) any
Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against or requesting or directing that action be taken by the
Trustee or any other Person; it being understood and intended that no one or
more of such Holders shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Guarantee Agreement 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 Guarantee Agreement, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
SECTION 5.05 Guarantee of Payment. This Guarantee Agreement creates a
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guarantee of payment and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication) or upon the distribution of Junior Subordinated Debentures to the
Holders in exchange for all of the Trust Securities.
SECTION 5.06 Subrogation. The Guarantor shall be subrogated to all (if
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any) rights of the Holders against the Trust in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided, however,
that 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 subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. 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 5.07 Independent Obligations. The Guarantor acknowledges that its
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obligations hereunder are independent of the obligations of the Trust with
respect to the Trust Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI.
SUBORDINATION
SECTION 6.01 Subordination. This Guarantee Agreement will constitute an
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unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor, except those
obligations or liabilities made pari passu or subordinate by their terms, (ii)
pari passu with the most senior preferred or preference stock now or hereafter
issued by the Guarantor and with any guarantee now or hereafter entered
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into by the Guarantor in respect of any preferred or preference securities of
any Affiliate of the Guarantor, and (iii) senior to all common stock of the
Guarantor.
ARTICLE VII.
TERMINATION
SECTION 7.01 Termination. This Guarantee Agreement shall terminate and be
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of no further force and effect upon: (i) full payment of the Redemption Price of
all Trust Securities, (ii) the distribution of Junior Subordinated Debentures to
the Holders in exchange for all of the Trust Securities, or (iii) full payment
of the amounts payable in accordance with the Trust Agreement upon liquidation
of the Trust. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective will be reinstated, as the case may be, if at any time
any Holder must restore payment of any sums paid with respect to Trust
Securities or under this Guarantee Agreement.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01 Successors and Assigns. All guarantees and agreements
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contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Trust Securities then outstanding. Except in
connection with a consolidation, merger, conveyance, transfer, or lease
involving the Guarantor that is permitted under Article Eight of the Indenture,
the Guarantor shall not assign its obligations hereunder.
SECTION 8.02 Amendments. Except with respect to any changes which do not
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materially and adversely affect the rights of Holders (in which case no consent
of Holders will be required), this Guarantee Agreement may only be amended with
the prior approval of the Holders of not less than 66-2/3% in Liquidation Amount
of all the outstanding Trust Securities. The provisions of Article Six of the
Trust Agreement concerning meetings of Holders shall apply to the giving of such
approval.
SECTION 8.03 Notices. Any notice, request or other communication required
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or permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below or such other
address as the Guarantor may give notice of to the Trustee and the Holders:
Yorkshire Power Group Limited
Wetherby Road
Scarcroft, Leeds LS14 3HS, England
Facsimile No.: 011-44-113-289-____
Attn: _________________
with a copy to:
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American Electric Power Service Corporation
1 Riverside Plaza
Columbus, Ohio 43215
Facsimile No: 614-223-2499
Attn: _________________
and
New Century Energies, Inc.
1225 Seventeenth Street
Denver, Colorado 80502
Facsimile No: 303-294-8815
Attn: __________________
(b) if given to the Trust, in care of the Trustee, or to the Trustee at the
Trust's (and the Trustee's) address set forth below or such other address as the
Trustee on behalf of the Trust may give notice to the Holders:
Yorkshire Capital Trust I
c/o The Bank of New York
101 Barclay Street, fl. 21 West
New York, New York 10286
Attn: _________________
with a copy, in the case of a notice to the Trust (other than a notice from
the Guarantor), to the Guarantor;
(c) if given to any Holder, at the address set forth on the books and
records of the Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.04 Benefit. This Guarantee Agreement is solely for the benefit
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of the Holders and, subject to Section 3.01(a), is not separately transferable
from the Trust Securities.
SECTION 8.05 Interpretation. In this Guarantee Agreement, unless the
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context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in
the preamble hereto have the respective meanings assigned to them in Section
1.01;
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(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 8.06 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
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AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK.
SECTION 8.07 Consent to Jurisdiction; Appointment of Agent to Accept
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Service of Process
- ------------------
(a) The Guarantor irrevocably consents and agrees, for the benefit of the
Holders from time to time 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 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 Trust
Securities or the 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) 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 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, 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 8.07 satisfactory to the Trustee. 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 Guarantor by serving a
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copy thereof upon the relevant agent for service of process referred to in this
Section 8.07 (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 Guarantor at its address specified in or designated pursuant to
this Guarantee. 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 Trust 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 Guarantor or
bring legal actions, suits or proceedings against the Guarantor in such other
jurisdictions, and in such manner, as may be permitted by applicable law. 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 Guarantee 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 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
Guarantor irrevocably agrees with respect to any matter arising under this
Guarantee for the benefit of the Holders from time to time of the Trust
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 Trust
Security from U.S. dollars into another currency, the Guarantor has agreed, and
each Holder by holding such Trust 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 Guarantor in respect of any sum payable by it to
the holder of a Trust 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
Trust Security of any sum, adjudged to be so due in the judgment currency, the
Holder of such Trust 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 Trust
Security in the judgment currency (determined in the manner set forth in the
preceding paragraph), the Guarantor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Holder of such
15
Trust 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 Trust Security,
such Holder agrees to remit to the Guarantor such excess, provided that such
Holder shall have no obligation to remit any such excess as long as the
Guarantor shall have failed to pay such Holder any obligations due and payable
under such Trust Security, in which case such excess may be applied to such
obligations of the Guarantor under such Trust Security in accordance with the
terms thereof. The foregoing indemnity shall constitute a separate and
independent obligation of the Guarantor and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid.
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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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
YORKSHIRE POWER GROUP LIMITED
By:--------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:--------------------------------------------
Name:
Title:
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