EXHIBIT 4.11
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DEPOSIT AGREEMENT
BETWEEN
THE BANK OF NEW YORK,
as Book-Entry Depositary
and
YORKSHIRE POWER FINANCE LIMITED
Dated as of May 1, 1998
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TABLE OF CONTENTS
Page
ARTICLE I Definitions and Other General Provisions.........................................................1
Section 1.01. Definitions............................................................................1
Section 1.02. Rules of Construction..................................................................4
ARTICLE II Book-Entry Interests............................................................................4
Section 2.01. Deposit of the Global Debentures.......................................................4
Section 2.02. Receipt of Book-Entry Interests........................................................4
Section 2.03. Registration of Transfer of the Book-Entry Interests...................................5
Section 2.04. Transfer or Exchange of Global Debentures..............................................6
Section 2.05. Issuance of Definitive Registered Debentures in Respect of the Debentures..............6
Section 2.06. Redemption of the Debentures...........................................................7
Section 2.07. Cancellation...........................................................................7
Section 2.08. Payments in Respect of the Book-Entry Interests and the Global Debentures..............7
Section 2.09. Change in Principal Amount of Global Debentures........................................8
Section 2.10. Record Date............................................................................8
Section 2.11. Action in Respect of the Book-Entry Interests or the Global Debentures.................9
Section 2.12. Reports................................................................................9
Section 2.13. Additional Amounts.....................................................................9
Section 2.14. Changes Affecting Global Debentures...................................................10
ARTICLE III The Book-Entry Depositary.....................................................................11
Section 3.01. Certain Duties and Responsibilities...................................................11
Section 3.02. Events of Default.....................................................................12
Section 3.03. Certain Rights of Book-Entry Depositary...............................................12
Section 3.04. Not Responsible for Recitals or Issuance of Debentures................................13
Section 3.05. Money Held in Trust...................................................................13
Section 3.06. Compensation and Reimbursement........................................................13
Section 3.07. Book-Entry Depositary Required; Eligibility...........................................14
Section 3.08. Resignation and Removal; Appointment of Successor.....................................15
Section 3.09. Acceptance of Appointment by Successor................................................16
Section 3.10. Merger, Conversion, Consolidation or Succession to Business...........................17
Section 3.11. Letter of Representations.............................................................17
ARTICLE IV Miscellaneous Provisions.......................................................................17
Section 4.01. Notices to Book-Entry Depositary or Issuer............................................17
Section 4.02. Notice to the Depositary; Waiver......................................................18
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Section 4.03. Effect of Headings and Table of Contents..............................................18
Section 4.04. Successors and Assign.................................................................18
Section 4.05. Separability Clause...................................................................18
Section 4.06. Benefits of Agreement.................................................................19
Section 4.07. GOVERNING LAW.........................................................................19
Section 4.08. Jurisdiction..........................................................................19
Section 4.09. Counterparts..........................................................................20
Section 4.10. Inspection of Agreement...............................................................20
Section 4.11. Satisfaction and Discharge............................................................20
Section 4.12. Amendments............................................................................20
Section 4.13. Book-Entry Depositary To Sign Amendments..............................................21
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DEPOSIT AGREEMENT
This Deposit Agreement (as the same may be amended from time to time in
accordance with the provisions hereof, the "Deposit Agreement"), dated as of
May 1, 1998, is among The Bank of New York, a New York banking corporation, as
book-entry depositary hereunder (the "Book-Entry Depositary"), Yorkshire Power
Finance Limited, a company with limited liability incorporated under the laws of
the Cayman Islands (the "Issuer"), and the holders and beneficial owners from
time to time of interests in the Book-Entry Interests.
ARTICLE I
Definitions and Other General Provisions
Section 1.01. Definitions.
Terms not defined herein have the meanings ascribed to them in the
Indenture. The following terms, as used herein, have the following meanings:
"Book-Entry Depositary" means the party named as such in this Agreement or
its nominee or the custodian of either until a successor shall have become such
pursuant to Section 3.08 hereof, and thereafter "Book-Entry Depositary" shall
mean such successor or its nominee or the custodian of either.
"Book-Entry Interests" means the certificateless depositary interests that
shall at all times, prior to any issuance of Definitive Registered Debentures in
respect thereof, represent the right to receive 100% of the principal, premium
(if any), interest (including Additional Interest, if any) and Additional
Amounts (if any) with respect to the underlying Global Debentures and that are
issued to the Depositary by the Book-Entry Depositary.
"Book-Entry Register" has the meaning ascribed thereto in Section 2.03
hereof.
"Corporate Trust Office" means the office of the Book-Entry Depositary in
the City of New York, at which any particular time its corporate trust business
shall be principally administered, which at the date hereof is located at 101
Barclay Street, New York, NY 10286, Attn: Corporate Trust Department,
International Finance Unit.
"Debentures" means the Issuer's __% Junior Subordinated Deferrable Interest
Debentures, Series A due __________, 2038.
"Definitive Registered Debentures" means Debentures issued by the Issuer
pursuant to the Indenture substantially in the form included as exhibits to the
Supplemental Indentures and registered in the names of the beneficial owners
thereof.
"Depositary" means the Trust (or DTC (including any nominee of DTC), in the
event that the Trust is liquidated pursuant to the terms of the Trust Agreement)
as the depositary of the Book-Entry Interests as recorded on the Book-Entry
Register.
"DTC" means The Depository Trust Company, New York, New York or its
successors.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Global Debentures" means Debentures in bearer form issued by the Issuer to
the Book-Entry Depositary pursuant to the Indenture substantially in the form
included as exhibits to the Supplemental Indentures.
"Guarantor" means Yorkshire Power Group Limited, a private limited company
incorporated under the laws of England and Wales.
"Indenture" means the Indenture dated as of May 1, 1998, among the Issuer,
the 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, relating to the Debentures as originally executed or
as it may from time to time be supplemented or amended including by the
Supplemental Indentures and for all purposes to the extent applicable, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
such instrument.
"Indirect Participant" means a Person that holds Interests through
Participants.
"Interests" means beneficial interests in the Book-Entry Interests that
will be represented by Trust Securities until the Trust is liquidated pursuant
to the terms of the Trust Agreement, whereafter the interests will be shown on
records maintained in book-entry form by DTC.
"Issuer" means the party named as such in this Agreement until a successor
replaces it pursuant to the applicable provisions of the Indenture and,
thereafter, means such successor.
"Issuer Order" means a written request or order signed in the name of the
Issuer by any Director of the Issuer and by any officer or other person duly
authorized by the Board of Directors, and delivered to the Book-Entry
Depositary.
"Letter of Representations" means the Letter of Representations to DTC
relating to the Debentures which will be entered into by the Book-Entry
Depositary and the Issuer upon the liquidation of the Trust.
"Participant" has the meaning specified in Section 2.02(b) herein.
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"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to the Trust Agreement, or any successor
as therein provided.
"Officers' Certificate" means a certificate signed in the name of the
Issuer by any Director of the Issuer or by any officer or other person duly so
authorized by the Board of Directors and delivered to the Book-Entry Depositary.
"Opinion of Counsel" means a written opinion from legal counsel, who may be
an employee of or regular counsel for the Issuer or may be other counsel
reasonably acceptable to the Book-Entry Depositary.
"Registered Holder" means, with respect to any Book-Entry Interest, the
Person in whose name such Book-Entry Interest is registered on the Book-Entry
Register maintained by the Book-Entry Depositary.
"Responsible Officer", when used with respect to the Book-Entry Depositary,
means any authorized officer of the Book-Entry Depositary including any vice
president, assistant vice president, assistant secretary, treasurer, assistant
treasurer, or any other officer of the Book-Entry Depositary who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any depositary matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Supplemental Indenture" mean the First Supplemental Indenture dated as of
May __, 1998, among the Issuer, the Guarantor, 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, relating to the Debentures.
"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 or therein) in which the Issuer or the Guarantor is
incorporated or created, as applicable, or in which the Issuer or the Guarantor
is managed or has a place of business.
"Trust" means Yorkshire Capital Trust I, a Delaware statutory business
trust.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as
of May __, 1998, among AEP Resources, Inc., as Depositor, the Guarantor, The
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, and the administrative trustees named therein.
"Trust Securities" means the __% Trust Securities of the Trust.
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"Trustee" means The Bank of New York and its successors and assigns, as
trustee under the Indenture.
Section 1.02. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) "including" means including without limitation; and
(d) words in the singular include the plural and words in the plural
include the singular.
ARTICLE II
Book-Entry Interests
Section 2.01. Deposit of the Global Debentures.
(a) The Book-Entry Depositary hereby accepts custody of the Global
Debentures from the Trustee and shall act as Book-Entry Depositary in accordance
with the terms of this Agreement. The Book-Entry Depositary shall hold such
Global Debentures at its Corporate Trust Office in the City of New York, at the
office of the paying agent in Luxembourg or at such place as it shall determine
with the consent of the Issuer and shall initially issue the Book-Entry
Interests to the Property Trustee to hold, pursuant to the Trust Agreement, for
the Trust.
(b) If pursuant to the Trust Agreement, the Trust is liquidated and
Book-Entry Interests are distributed to holders of Trust Securities in
liquidation of such holders' interests in the Trust, the Global Debenture held
by the Book-Entry Depositary and representing all of the Debentures will cease
to be held for the benefit of the Trust and will, for all purposes under this
Deposit Agreement, be held by the Book-Entry Depositary for the benefit of DTC
and its Participants, subject to Section 2.02, and all of the Book-Entry
Interests in the Global Debenture will, pursuant to the Trust Agreement, be
transferred by the Property Trustee to DTC.
Section 2.02. Receipt of Book-Entry Interests.
(a) Prior to the liquidation of the Trust pursuant to the Trust Agreement,
the Book-Entry Interests shall be held by the Property Trustee for benefit of
the Trust.
(b) To the extent the Book-Entry Interests are transferred to DTC as
contemplated by Section 2.01(b):
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1. Upon acceptance by DTC of the Book-Entry Interests for entry into its
book-entry settlement system in accordance with the terms of the
Letter of Representations, Interests in the Book-Entry Interests will
be recorded on and traded through DTC's book-entry system, and
ownership of such Interests shall be shown in, and the transfer of
such ownership shall be effected only through, records maintained by
(i) DTC or (ii) institutions that have accounts with DTC
("Participants"). Interests shall be transferable only as units
representing authorized denominations of the Debentures.
2. The Book-Entry Interests shall be issuable only to DTC or successors
of DTC or their respective nominees. Except as provided in Section
2.05, no beneficial owner of Interests shall be entitled to receive a
Definitive Registered Senior Note, and such beneficial owner's
Interests shall be reflected only in accordance with the procedures of
DTC as set forth in the Letter of Representations.
(c) Transfers of the Book-Entry Interests and Interests shall be subject to
the restrictions on transfer provided in the legend set forth on the face of the
Global Debentures relating thereto.
Section 2.03. Registration of Transfer of the Book-Entry Interests.
The Book-Entry Depositary agrees to maintain at the Book-Entry Depositary's
Corporate Trust Office the Book-Entry Register in which the Book-Entry
Depositary shall (x), prior to the liquidation of the Trust, record the Property
Trustee, as holder for the Trust, as the initial registered owner of the
Book-Entry Interests and (y) upon the liquidation of the Trust and transfer of
the Book-Entry Interests to DTC (i) record Cede & Co., as nominee of DTC, as the
registered owner of the Book-Entry Interests and (ii) record the registration
and transfer of the Book-Entry Interests. Notwithstanding anything contained
herein to the contrary, the Debentures (represented by the Book-Entry Interests)
shall be transferred only pursuant to the Trust Agreement for so long as the
Trust owns the Debentures. The Book-Entry Interests cannot be transferred unless
such transfer is recorded on the Book-Entry Register. The Book-Entry Depositary
shall not constitute the agent of the Issuer for any other purpose and, in
particular, it shall not constitute the agent of the Issuer in relation to any
payments it may make to the Depositary or be authorized to undertake any
obligations on behalf of the Issuer.
The foregoing paragraph shall not (i) impose an obligation on the
Book-Entry Depositary to record the ownership interests in or transfers of
Interests held by Participants or its successors or Indirect Participants or
(ii) restrict transfers of such Interests held by Participants or Indirect
Participants. The Book-Entry Depositary shall treat the Depositary as the
absolute owner of the Book-Entry Interests for all purposes whatsoever and shall
not be bound or affected by any notice to the contrary, other than an order of a
court having jurisdiction over the Book-Entry Depositary.
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Unless and until Global Debentures are exchanged in whole for Definitive
Registered Debentures pursuant to Section 2.05, the Book-Entry Depositary may
not register the transfer of the Book-Entry Interests except as a whole: (x)
prior to the liquidation of the Trust, by the Property Trustee to a successor
trustee as duly appointed under the Trust Agreement and (y) upon liquidation of
the Trust and transfer of the Book-Entry Interests to DTC, (i) by DTC to its
nominee; (ii) by a nominee of DTC to DTC or to another nominee of DTC; or (iii)
by DTC or any nominee to a successor depositary or a nominee of such successor
depositary.
Section 2.04. Transfer or Exchange of Global Debentures.
The Book-Entry Depositary shall hold the Global Debentures in custody for
the benefit of the Depositary Subject to Section 3.08, the Book-Entry Depositary
shall not transfer or lend the Global Debentures or any interest therein, except
that the Global Debentures, as a whole and with the Issuer's consent, may be
transferred (i) by the Book-Entry Depositary to a nominee of the Book-Entry
Depositary; (ii) by a nominee of the Book-Entry Depositary to the Book-Entry
Depositary or another nominee of the Book-Entry Depositary; or (iii) by the
Book-Entry Depositary or any such nominee to a successor Book-Entry Depositary
or a nominee of such successor Book-Entry Depositary. Notwithstanding the
foregoing, the Depositary may not under any circumstances request the Book-Entry
Depositary to surrender or deliver the Global Debentures to the Depositary.
Section 2.05. Issuance of Definitive Registered Debentures in Respect of
the Debentures.
Except as provided in this Section 2.05, no beneficial owner of Interests
shall be entitled to receive Definitive Registered Debentures.
The Book-Entry Depositary will promptly notify the Trustee and request in
writing that the Issuer issue and the Trustee authenticate and deliver
Definitive Registered Debentures in exchange for a series of Global Debentures,
as a whole but not in part, in such names and authorized denominations as the
Book-Entry Depositary shall specify, if: (i) after liquidation of the Trust and
transfer of the Book-Entry Interests to DTC, DTC notifies the Issuer and the
Book-Entry Depositary that it is unwilling or unable to continue to hold the
Book-Entry Interests related to the Global Debentures of such series 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 Issuer within 120
days; (ii) the Book-Entry Depositary notifies the Issuer under Section 3.08
hereof that it is unwilling or unable to continue as Book-Entry Depositary and
no successor Book-Entry Depositary is appointed within 120 days; or (iii) the
Issuer in its sole discretion executes and delivers to the Trustee an Officers'
Certificate providing that the Global Debentures of such series shall be so
exchangeable. The Book-Entry Depositary agrees that in such event it will
promptly surrender the Global Debentures of such series held by it to the
Trustee in connection with such exchange and request in writing that the Issuer
execute and the Trustee authenticate and deliver without charge Definitive
Registered Debentures, having the same interest rate, if any, and maturity and
having the
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same terms as the Interests of the requesting owner, in authorized denominations
of $25 and integral multiples thereof and of an aggregate principal amount equal
to such owner's Interests and that such Global Debentures will be canceled upon
issuance of such Definitive Registered Debentures.
The Global Debentures shall also be exchangeable, in whole or in part, for
Definitive Registered Debentures if there shall have occurred and be continuing
an Event of Default with respect to the Debentures. In such circumstances,
beneficial owners of Interests relating to the Global Debentures may request in
writing that their Interests be exchanged for one or more Definitive Registered
Debentures (an "Optional Definitive Security Request"). Upon receipt of any such
written request, the Book-Entry Depositary shall (i) promptly surrender the
relevant Global Debenture to the Trustee and request in writing that the Issuer
execute and the Trustee authenticate and deliver without charge Definitive
Registered Debentures of the same series, having the same interest rate, if any,
and maturity and having the same terms as the Interests of the requesting owner,
in authorized denominations of $25 and integral multiples thereof and of an
aggregate principal amount equal to such owner's Interests; and (ii) if the
Global Debenture is being exchanged (x) as a whole, then the surrendered Global
Debenture shall be canceled by the Trustee, or (y) in part, then the principal
amount of the surrendered Global Debenture shall be reduced in accordance with
Section 2.09 herein.
All costs (taxes, governmental charges or otherwise) related to the
issuance of Definitive Registered Debentures will be borne by the Issuer subject
to any exceptions set forth in the Indenture.
Section 2.06. Redemption of the Debentures.
In the event that the Issuer exercises any right to redeem the Debentures
in whole or in part, the Book-Entry Depositary, as holder of the related series
of Global Debentures, shall, upon notice from the Issuer or the Trustee, as the
case may be, surrender the Global Debentures at a place of payment or such other
place as the Issuer may designate, and deliver such Global Debentures to the
Trustee for cancellation or for reduction of principal amount in accordance with
Sections 2.07 or 2.09 herein, as the case may be.
Section 2.07. Cancellation.
If the Global Debentures are surrendered for payment, for redemption in
whole or for exchange in whole for Definitive Registered Debentures to any
Person other than the Trustee, such Global Debentures shall be surrendered to
the Trustee for cancellation.
Section 2.08. Payments in Respect of the Book-Entry Interests and the
Global Debentures.
(a) Whenever the Book-Entry Depositary, as holder of the Global Debentures,
shall receive from the Trustee (or other paying agent under the Indenture) any
payment on the Global Debentures, such payments shall be distributed promptly to
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the Depositary on the payment date for the Global Debentures. So long as DTC is
the Depositary, such payments shall be made in accordance with the Letters of
Representations. The payment date for the Book-Entry Interests for payment of
any principal or interest shall be the same date as the payment date for the
related Global Debentures.
(b) The Book-Entry Depositary will forward to the Issuer or its agents such
information from its records as the Issuer may reasonably request in writing to
enable the Issuer or its agents to file necessary reports with governmental
agencies, and the Book-Entry Depositary, the Issuer or their agents may (but
shall not be required to) file any such reports necessary to obtain benefits
under any applicable tax treaties for the Depositary or the beneficial owners of
Interests.
(c) Notwithstanding any other provisions of this Agreement, the Book-Entry
Depositary shall be required to pay to the Depositary only amounts (including
Additional Interest and Additional Amounts, if any) received by the Book-Entry
Depositary from the Issuer under the Global Debentures or the Guarantor pursuant
to the Guarantee.
(d) Neither the Issuer, the Guarantor nor any agent of the Issuer or the
Guarantor (including but not limited to any paying agent) will have any
responsibility or liability for any aspect relating to payments (including
payments of Additional Interest and Additional Amounts, if any) made or to be
made by the Book-Entry Depositary to the Depositary in respect of the Global
Debentures or the Book-Entry Interests. None of the Issuer, the Guarantor, 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
(including payments of Additional Interest and Additional Amounts, if any) made
or to be made by DTC on account of a Participant's or Indirect Participant's
ownership of an Interest or for maintaining, supervising or reviewing any
records relating to a Participant's Interests.
Section 2.09. Change in Principal Amount of Global Debentures.
Whenever the principal amount at maturity of the Global Debentures held by
the Book-Entry Depositary is changed by the Trustee as a result of partial
redemption or otherwise, the Book-Entry Depositary shall record on the
Book-Entry Register a corresponding change in the principal amount of the
related Book-Entry Interests and notify the Depositary of such corresponding
change.
Section 2.10. Record Date.
Whenever any payment is to be made in respect of the Global Debentures or
the Book-Entry Depositary shall receive notice of any action to be taken in
respect of the Book-Entry Interests or Global Debentures, or whenever the
Book-Entry Depositary otherwise deems it appropriate in respect of any other
matter, the Book-Entry Depositary shall fix a record date for determination of
the Depositary who shall be entitled to receive payment in respect of the
Book-Entry Interests corresponding to such Global Debentures
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or to take any such action or to act in respect of any such matter. Subject to
the provisions of this Agreement, only the Depositary who is registered on the
Book-Entry Register at the close of business on such record date shall be
entitled to receive any such payment, to give instructions as to such action or
to act in respect of any such matter.
Section 2.11. Action in Respect of the Book-Entry Interests or the Global
Debentures.
(a) Not later than 10 days from receipt by the Book-Entry Depositary of
notice of any solicitation of consents or request for a waiver or other action
with respect to the Book-Entry Interests or the Global Debentures under this
Agreement or the Indenture, the Book-Entry Depositary shall mail to the
Depositary a notice containing (i) such information as is contained in such
notice, (ii) a statement of the record date with respect to such consent, waiver
or other action, (iii) a statement that, on or prior to a specified date (which
specified date may be set no later than 180 days after the record date) (the
"Expiration Date") the Depositary will be entitled, subject to the provisions of
or governing the Book-Entry Interests or Global Debentures, as the case may be,
to instruct the Book-Entry Depositary as to such consent, waiver or such action,
and (iv) a statement specifying the manner in which such instructions may be
given. Upon receipt by the Book-Entry Depositary of instructions from the
Depositary on or prior to the Expiration Date and in the specified manner, the
Book-Entry Depositary shall endeavor (insofar as practicable and permitted under
the provisions of or governing the Book-Entry Interests or Global Debentures, as
the case may be), to take such measures regarding the requested consent, waiver
or other action in respect of such Book-Entry Interests or Global Debentures, as
the case may be, as shall be in accordance with any instructions set forth in
such request. The Book-Entry Depositary shall not itself exercise any discretion
in the granting of consents or waivers or the taking of any other action in
respect of the Book-Entry Interests or Global Debentures, as the case may be.
(b) The Depositary may direct the time, method and place of conducting any
proceeding for any remedy available to the Book-Entry Depositary or of
exercising any trust or power conferred on the Book-Entry Depositary. However,
the Book-Entry Depositary may refuse to follow any direction that conflicts with
law or this Agreement or the Indenture or, subject to Section 3.01 hereof, that
the Book-Entry Depositary determines would involve it in personal liability.
Section 2.12. Reports.
The Book-Entry Depositary shall immediately (and in no event later than 10
days from receipt) send to the Depositary a copy of any notices, reports and
other communications received by it relating to the Issuer, the Debentures or
the Book-Entry Interests.
Section 2.13. Additional Amounts.
All payments in respect of Global Debentures made by the Book-Entry
Depositary pursuant to this Agreement shall be made free and clear of, and
without
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deduction or withholding 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 the withholding or deduction is
then required by law. In the event that such withholding or deduction is
required to be made, the Book-Entry Depositary shall pay to the Depositary such
Additional Amounts that have been paid by the Issuer or the Guarantor to the
Book-Entry Depositary as will result in the payment to the Depositary of the
amount that would otherwise have been receivable by such party, as appropriate,
in the absence of such withholding or deduction; provided, that Additional
Amounts need only be paid to the Depositary to the extent that payments of
Additional Amounts from the Issuer or the Guarantor are required under Section
3.12 of the Indenture.
At least 10 days prior to the first interest payment date, and at least 10
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 Issuer will furnish the Book-Entry Depositary with an Officers'
Certificate instructing the Book-Entry Depositary whether such payment of
principal of, premium, if any, or interest on such Book-Entry Interests shall be
made to the Depositary 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 Issuer will furnish the Book-Entry Depositary
with an Officers' Certificate that specifies the amount required to be deducted
or withheld on such payment. The Issuer shall indemnify the Book-Entry
Depositary, its officers, directors and employees for, and hold it 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 it in reliance on any Officers' Certificate
furnished to it pursuant to this Section 2.13.
Section 2.14. Changes Affecting Global Debentures.
Upon any reclassification of the Global Debentures, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, or upon an exchange of the
Global Debentures pursuant to the Indenture, any securities that shall be
received by the Book-Entry Depositary in exchange for, in conversion of or in
respect of the Global Debentures shall be treated as new Global Debentures under
this Agreement and the Book-Entry Interests shall thenceforth represent
beneficial interests in such new Global Debentures so received.
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ARTICLE III
The Book-Entry Depositary
Section 3.01. Certain Duties and Responsibilities.
(a) The Book-Entry Depositary undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the
Book-Entry Depositary.
(b) In the absence of bad faith on its part, the Book-Entry Depositary 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
Book-Entry Depositary and conforming to the requirements of this Agreement, but
in the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Book-Entry Depositary, the
Book-Entry Depositary shall examine the same to determine whether or not they
conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Book-Entry Depositary from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) the Book-Entry Depositary shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Book-Entry
Depositary, unless the Book-Entry Depositary was negligent in ascertaining
the pertinent facts; and
(ii) the Book-Entry Depositary 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 Depositary relating to the time, method and place of
conducting any proceeding for any remedy available to the Book-Entry
Depositary, or exercising any power conferred upon the Book-Entry
Depositary, under this Agreement or the Indenture.
(d) No provision of this Agreement shall require the Book-Entry Depositary
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 it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
satisfactory to the Book-Entry Depositary has not been reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Book-Entry Depositary shall be subject to the provisions of
this Section 3.01.
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Section 3.02. Events of Default.
(a) Within 90 days after the occurrence of any Event of Default of which a
Responsible Officer of the Book-Entry Depositary assigned to its corporate trust
department has actual knowledge, the Book-Entry Depositary shall transmit by
mail to the Depositary in the manner provided in Section 4.02 hereof, notice of
such Event of Default, unless such Event of Default shall have been cured or
waived.
(b) Upon the occurrence of any Event of Default or in connection with any
other right of the holder of the Global Debentures under the Indenture, and if
requested by notice in writing by the Registered Holder, the Book-Entry
Depositary shall take such action as shall be requested in such notice in
respect of the Global Debentures.
Section 3.03. Certain Rights of Book-Entry Depositary.
Subject to the provisions of Section 3.01 hereof:
(a) the Book-Entry Depositary 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 Issuer mentioned herein shall be
sufficiently evidenced by an Officers' Certificate or Issuer Order or as
otherwise expressly provided herein and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) the Book-Entry Depositary 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;
(d) the Book-Entry Depositary 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 Book-Entry Depositary, in its discretion, may make further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Book-Entry Depositary 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 Issuer,
personally or by agent or attorney;
(e) the Book-Entry Depositary may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, but the Book-Entry Depositary shall be responsible for any
misconduct or negligence on the part of any such agent or attorney appointed by
it hereunder;
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(f) the Book-Entry Depositary shall be under no obligation to expend or
risk its own funds or to exercise, at the request or direction of the
Depositary, any of the rights or powers vested in it by this Agreement or the
Indenture unless the Depositary shall have offered to the Book-Entry Depositary
security or indemnity satisfactory to the Book-Entry Depositary against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction;
(g) whenever in the administration of its duties under this Agreement the
Book-Entry Depositary shall deem it desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, the
Book-Entry Depositary (unless other evidence be herein specifically prescribed)
may, in the absence of negligence or bad faith on its part, rely upon an
Officers' Certificate.
Section 3.04. Not Responsible for Recitals or Issuance of Debentures.
The recitals contained in the Indenture and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer and the Book-Entry Depositary assumes no responsibility for their
correctness. The Book-Entry Depositary makes no representations as to the
validity or sufficiency of this Agreement or of the Debentures. The Book-Entry
Depositary shall not be accountable for the use or application by the Issuer of
the proceeds with respect to the Debentures.
Section 3.05. Money Held in Trust.
Money held by the Book-Entry Depositary in trust hereunder need not be
segregated from other funds held by the Book-Entry Depositary, except to the
extent required by law. The Book-Entry Depositary shall be under no obligation
to invest or pay interest on any money received by it hereunder, except as
otherwise agreed in writing with the Issuer. Any interest accrued on funds
deposited with the Book-Entry Depositary under this Agreement shall be paid to
the Issuer from time to time and the Depositary shall have no claim to any such
interest.
Section 3.06. Compensation and Reimbursement.
The Issuer agrees:
(a) to pay to the Book-Entry Depositary from time to time such
compensation as is agreed upon in writing for services rendered by it
hereunder;
(b) except as otherwise expressly provided herein, to reimburse the
Book-Entry Depositary upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Book-Entry Depositary in
accordance with any provision of this Agreement (including the reasonable
compensation and the reasonable 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 Issuer),
except any such expense, disbursement or advance as may be attributable to
its or their negligence, willful misconduct or bad faith; and
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(c) to indemnify the Book-Entry Depositary 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 this Agreement and
its duties hereunder, including the costs and expenses of defending itself
against any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder. The indemnity
provided by this Section 3.06(c) shall survive the satisfaction and
discharge of this Agreement pursuant to Section 4.11 hereof.
In case any claim shall be made or action brought against the Book-Entry
Depositary for any reason for which indemnity may be sought against the Issuer
in accordance with paragraph (c) above, the Book-Entry Depositary shall promptly
notify the Issuer in writing setting forth the particulars of such claim or
action and the Issuer may assume the defense thereof. In the event that the
Issuer elects to assume such defense and select such counsel, the Book-Entry
Depositary shall have the rights to employ its own counsel, but, in any such
case, the fees and expenses of such counsel shall be at the expense of the
Book-Entry Depositary, unless (i) the Issuer agreed in writing to pay such fees
and expenses or (ii) the named parties to any such action (including any
impleaded parties) include both the Book-Entry Depositary and the Issuer and the
Book-Entry Depositary shall have been advised by its counsel that a conflict of
interest between the Book-Entry Depositary and the Issuer may arise (and
Issuer's counsel shall have concurred with such advise) and for this reason it
is not desirable for the Issuer's counsel to represent both the Book-Entry
Depositary and the Issuer (it being understood, however, that the Issuer shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for reasonable fees and expenses
of more than one separate firm of attorneys for the Book-Entry Depositary (plus
any local counsel retained by the Book-Entry Depositary in their reasonable
judgement), which firm shall be designated in writing by the Book-Entry
Depositary). The Book-Entry Depositary agrees to give all assistance reasonably
required in connection with the conduct of any such claim or action.
Section 3.07. Book-Entry Depositary Required; Eligibility.
At all times when there is a Book-Entry Depositary hereunder, such
Book-Entry Depositary shall be a corporation organized and doing business under
the laws of the United States of America, any state thereof or the District of
Columbia, having, together with its parents, a combined capital and surplus of
at least $50,000,000, subject to supervision or examination by Federal, state or
District of Columbia authority and willing to act on reasonable terms. Such
corporation shall have its principal place of business in the Borough of
Manhattan, The City of New York, if there be such a corporation in such location
willing to act upon reasonable and customary terms and conditions. If such
corporation, or its parent, publishes reports of 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 3.07, 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. The
Book-Entry Depositary
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hereunder shall at all times be the Trustee under the Indenture, subject to
receipt of an Opinion of Counsel that the same Person is precluded by law from
acting in such capacities. If at any time the Book-Entry Depositary shall cease
to be eligible in accordance with the provisions of this Section 3.07, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 3.08. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Book-Entry Depositary and no
appointment of a successor Book-Entry Depositary pursuant to this Article shall
become effective until (i) the acceptance of appointment by the successor
Book-Entry Depositary in accordance with the applicable requirements of Section
3.09 hereof or (ii) the issuance of Definitive Registered Debentures for all
Global Debentures in accordance with Section 2.05 hereof and the Indenture.
(b) The Book-Entry Depositary may at any time resign as Book-Entry
Depositary with respect to the Global Debentures by giving written notice
thereof to the Issuer and the Depositary, in accordance with Section 4.01 and
Section 4.02 hereof, 60 days prior to the effective date of such resignation.
The Book-Entry Depositary may be removed at any time upon 90 days' notice 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 is intended to become effective. If
the instrument of acceptance by a successor Book-Entry Depositary required by
Section 3.09 hereof shall not have been delivered to the Book-Entry Depositary
within 30 days after the giving of such notice of resignation or removal, the
resigning Book-Entry Depositary may petition any court of competent jurisdiction
for the appointment of a successor Book-Entry Depositary.
(c) If at any time:
(i) the Book-Entry Depositary shall cease to be eligible under Section
3.07 hereof, or shall cease to be eligible as Trustee under the Indenture,
and shall fail to resign after written request therefor by the Issuer or by
the Depositary, or
(ii) the Book-Entry Depositary shall become incapable of acting with
respect to the Book-Entry Interests or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Book-Entry Depositary or of
its property shall be appointed or any public officer shall take charge or
control of the Book-Entry Depositary or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation.
then, in any such case, (i) the Issuer, by Board Resolution, may remove the
Book-Entry Depositary and appoint a successor Book-Entry Depositary, and (ii) if
the Issuer shall fail to remove such Book-Entry Depositary and appoint a
successor Book-Entry Depositary within 30 days of any such event, then the
Depositary may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Book-Entry Depositary
or Book-Entry Depositaries and the appointment of a
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successor Book-Entry Depositary, unless Definitive Registered Debentures have
been issued in accordance with the Indenture.
(d) If the Book-Entry Depositary shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Book-Entry
Depositary for any cause, the Issuer, by Board Resolution, shall promptly
appoint a successor Book-Entry Depositary (other than the Issuer) and shall
comply with the applicable requirements of Section 3.09 hereof. If no successor
Book-Entry Depositary with respect to the Global Debentures shall have been so
appointed by the Issuer and accepted appointment in the manner required by
Section 3.09 within 120 days of any such resignation, removal, incapacity or
vacancy, then the Depositary may request that Definitive Registered Debentures
in such names and denominations as the Depositary shall instruct in writing with
respect to such Global Debentures be issued. The Book-Entry Depositary will
thereupon surrender such Global Debentures to the Trustee for cancellation and
the Trustee shall distribute such Definitive Registered Debentures in accordance
with the instructions of the Depositary.
(e) The Issuer shall give, or shall cause such successor Book-Entry
Depositary to give, notice of each resignation and each removal of a Book-Entry
Depositary and each appointment of a successor Book-Entry Depositary to the
Depositary in accordance with Section 4.02 hereof. Each notice shall include the
name of the successor Book-Entry Depositary and the address of its Corporate
Trust Office.
Section 3.09. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Book-Entry
Depositary, every such successor Book-Entry Depositary so appointed shall
execute, acknowledge and deliver to the Issuer and to the retiring Book-Entry
Depositary an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Book-Entry Depositary shall become
effective and such successor Book-Entry Depositary, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies
and duties of the retiring Book-Entry Depositary, with like effect as if
originally named as Book-Entry Depositary hereunder; but, on the request of the
Issuer or the successor Book-Entry Depositary, such retiring Book-Entry
Depositary shall (i) execute and deliver an instrument transferring to such
successor Book-Entry Depositary all the rights and powers of the retiring
Book-Entry Depositary and (ii) duly assign, transfer and deliver to such
successor Book-Entry Depositary all property and money held by such retiring
Book-Entry Depositary hereunder. Any retiring Book-Entry Depositary shall,
nonetheless, retain a prior claim upon all property or funds held or collected
by such Book-Entry Depositary to secure any amounts then due it pursuant to
Section 3.06 hereof except to the extent that such prior claim and security
would breach or constitute a default under the Indenture or Debentures.
(b) Upon request of any such successor Book-Entry Depositary, the Issuer
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Book-Entry Depositary all such rights, powers
and agencies referred to in paragraph (a) of this Section 3.09.
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(c) No successor Book-Entry Depositary shall accept its appointment unless
at the time of such acceptance such successor Book-Entry Depositary shall be
eligible under this Article.
(d) Upon acceptance of appointment by any successor Book-Entry Depositary
as provided in this Section 3.09, the Issuer shall give notice thereof to the
Depositary in accordance with Section 4.02 hereof. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Book-Entry Depositary, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 3.08(b) hereof. If the Issuer
fails to give such notice within 10 days after acceptance of appointment by the
successor Book-Entry Depositary, the successor Book-Entry Depositary shall cause
such notice to be given at the expense of the Issuer.
Section 3.10. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Book-Entry Depositary 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 Book-Entry Depositary
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Book-Entry Depositary, shall be the successor of
the Book-Entry Depositary hereunder, without the execution of filing of any
paper or any further act on the part of any of the parties hereto.
Section 3.11. Letter of Representations.
The Book-Entry Depositary agrees to enter into and comply with all of the
provisions set forth in the Letters of Representations so long as DTC is the
holder of the Book-Entry Interests.
ARTICLE IV
Miscellaneous Provisions
Section 4.01. Notices to Book-Entry Depositary or Issuer.
Any request, demand, authorization, direction, notice, consent, or waiver
or other document provided or permitted by this Agreement to be made upon, given
or furnished to, or filed with,
(a) the Book-Entry Depositary by the Depositary, by the Trustee or the
Issuer shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in writing
and personally delivered or mailed, first-class postage prepaid, to the
Book-Entry Depositary at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration Department, or at any other address previously
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furnished in writing by the Book-Entry Depositary to the Depositary, the
Trustee and the Issuer, or
(b) the Issuer, by the Book-Entry Depositary or by DTC shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or
mailed, first-class postage prepaid to Yorkshire Power Finance Limited, c/o
Yorkshire Power Group Limited, Wetherby Road, Scarcroft, Leeds LS14 3HS,
England, Attention: Finance Director, or at any other address previously
furnished in writing to the Book-Entry Depositary by the Issuer.
Section 4.02. Notice to the Depositary; Waiver.
Where this Agreement provides for notice to the Depositary of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided or as provided in the Letter of Representations) if in writing and
mailed, first-class postage prepaid, to the Depositary at the address notified
to the Book-Entry Depositary, in each case not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
Where this Agreement 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 the Depositary shall be filed with the Book-Entry
Depositary, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case 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 with the approval of the Book-Entry Depositary
shall constitute a sufficient notification for every purpose hereunder.
Section 4.03. Effect of Headings and Table of Contents.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
Section 4.04. Successors and Assign.
All covenants and agreements in this Agreement and the Debentures by the
Issuer shall bind its successors and assigns, whether so expressed or not.
Section 4.05. Separability Clause.
In case any provision in this Agreement or in the Debentures 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.
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Section 4.06. Benefits of Agreement.
Nothing in this Agreement, the Debentures or the Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any benefits or any legal or equitable right, remedy or
claim under this Agreement; provided, that the Depositary and the beneficial
owners of Interests shall be intended third-party beneficiaries of this
Agreement. The Depositary and beneficial owners from time to time of Interests
in the Book-Entry Interests shall be parties to this Agreement and shall be
bound by all of the terms and conditions hereof and of the Indenture and the
Debentures, by their acceptance of delivery of the Interests or beneficial
interests therein.
Section 4.07. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 4.08. Jurisdiction.
(a) The Issuer agrees that any legal suit, action or proceeding against the
Issuer brought by the Book-Entry Depositary arising out of or based upon this
Agreement may be instituted in any state or 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 pursuant to Section 4.11 hereof,
irrevocably submits to the nonexclusive jurisdiction of such courts in any suit,
action or proceeding.
(b) The Issuer has appointed CT Corporation System at 1633 Broadway, New
York, New York 10019, 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 of the United States District Court for the Southern
District of New York by DTC or the Book-Entry Depositary, 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 the
Issuer. Notwithstanding the foregoing, any action based on this Agreement may be
instituted by the Book-Entry Depositary in any competent court in England or the
Cayman Islands.
(c) To the extent that the Issuer 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
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jurisdiction there may be attributed to itself or its assets such immunity
(whether or not claimed), the Issuer irrevocably agrees with respect to any
matter arising under this Deposit Agreement for the benefit of the Registered
Holder from time to time of the Book-Entry Interests, not to claim, and
irrevocably waives, such immunity to the full extent permitted by the laws of
such jurisdiction.
Section 4.09. Counterparts.
This Agreement may be executed in any number of counterparts by the parties
hereto on separate counterparts, each of which, when so executed and delivered,
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument.
Section 4.10. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times during
normal business hours at the Corporate Trust Office of the Book-Entry Depositary
for inspection by the Depositary.
Section 4.11. Satisfaction and Discharge.
This Agreement upon Issuer Order shall cease to be of further effect, and
the Book-Entry Depositary, at the expense of the Issuer shall execute proper
instruments acknowledging satisfaction and discharge of this Agreement, when (i)
either (a) the Indenture has been satisfied and discharged pursuant to the
provisions thereof or (b) Definitive Registered Debentures have been issued and
the Global Debentures have been canceled in accordance with the provisions of
Section 2.07 and the Indenture, (ii) the Issuer has paid or caused to be paid
all sums payable hereunder by the Issuer and (iii) the Issuer has delivered to
the Book-Entry Depositary an Officers' Certificate and an Opinion of Counsel,
stating that all conditions precedent herein provided relating to the
satisfaction and discharge of this Agreement have been complied with.
Section 4.12. Amendments.
The Issuer and the Book-Entry Depositary may amend this Agreement without
the consent of the Depositary:
(a) to cure any formal defect, omission, inconsistency or ambiguity
herein;
(b) to add to the covenants and agreements of the Issuer or the
Book-Entry Depositary ;
(c) to effect the assignment of the Book-Entry Depositary's rights and
duties to a qualified successor as provided herein;
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(d) to comply with any requirements of the Securities Act, the
Exchange Act, the Investment Company Act of 1940, as amended, the Trust
Indenture Act or any other applicable securities laws;
(e) to modify this Agreement in connection with an amendment to the
Indenture that does not require the consent of the Depositary; or
(f) to modify, alter, amend or supplement this Agreement in any other
respect not inconsistent with this Agreement which, in the opinion of
counsel acceptable to the Issuer, is not materially adverse to the
Depositary or the beneficial owners of Interests.
Except as set forth in this Section 4.12, no amendment which materially
adversely affects the Depositary or beneficial owners of Interests may be made
to this Agreement without the consent of the Depositary or such beneficial
owner.
Section 4.13. Book-Entry Depositary To Sign Amendments.
The Book-Entry Depositary shall sign any amendment authorized pursuant to
Section 4.12 hereof if the amendment does not materially adversely affect the
rights, duties, liabilities or immunities of the Book-Entry Depositary. If it
does, the Book-Entry Depositary may, but need not sign it.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
YORKSHIRE POWER FINANCE LIMITED
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK, as
Book-Entry Depositary
By:
---------------------------------
Name:
Title:
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