Exhibit 5.2
21st July, 1998
To: Yorkshire Power Finance Limited
PO Box 309
George Town
Grand Cayman
Cayman Islands
British West Indies
Dear Sirs:
RE: REGISTRATION STATEMENT ON FORM S-4
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We are Cayman Islands Counsel to Yorkshire Power Finance Limited ("Yorkshire
Finance") in connection with the preparation of a registration statement on Form
S-4, including a preliminary prospectus, filed with the United States Securities
and Exchange Commission (the "Commission") on 21st July, 1998 (the "Registration
Statement"), under the United States Securities Act of 1933, as amended (the
"Securities Act"), relating to the proposed offer to exchange up to $350,000,000
aggregate principal amount of its 6.154% Series B Senior Notes due 2003 (the
"2003 Senior Notes") and up to $300,000,000 aggregate principal amount of its
6.496% Series B Senior Notes due 2008 (together with the 2003 Senior Notes, the
"Senior Notes") of Yorkshire Finance for a like principal amount of its 6.154%
Series A Senior Notes due 2003 (the "Original 2003 Senior Notes") and its 6.496%
Series B Senior Notes due 2008 (together with the Original 2003 Senior Notes,
the "Original Senior Notes"), respectively. The Original Senior Notes were and
the Senior Notes will be issued pursuant to an indenture dated as of 1st
February, 1998, as supplemented, entered into between Yorkshire Finance,
Yorkshire and the trustee named therein (the "Subordinated Indenture") in
substantially the form filed as an exhibit to the Registration Statement.
For the purposes of this opinion, we have reviewed the Companies Law (1995
Revision) of the Cayman Islands (the "Companies Law") and have examined and
relied upon:
1. the prospectus relating to the Senior Notes in the form included in the
Registration Statement;
2. the Memorandum and Articles of Association of Yorkshire Finance;
3. the Certificate of Incorporation and Certificate of Incorporation on Change
of Name of Yorkshire Finance;
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To: Yorkshire Power Finance Limited 21st July, 1998
Re: Registration Statement
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Yorkshire Finance:
4. the form of the Indenture;
5. the Minutes of a Meeting of the Board of Directors of Yorkshire Finance held
on 11th February, 1998 (the "Minutes"), the Power of Attorney granted by the
Company on 11th February, 1998 and the corporate records of Yorkshire
Finance;
6. a Certificate from a Director of Yorkshire Finance in the form annexed hereto
(the "Director's Certificate"); and
7. the opinion dated the date hereof and given by Dewey Ballantine, LLP, United
States counsel to Yorkshire Finance and Yorkshire (the "Dewey Ballantine
Opinion").
The following opinion is given only as to circumstances existing on the date
hereof and known to us and as to the laws of the Cayman Islands as the same are
in force at the date hereof. In giving this opinion, we have relied upon the
accuracy of the Director's Certificate and the Dewey Ballantine Opinion on the
date of issue hereof without further verification and have relied upon the
following assumptions, which we have not independently verified:-
(a) The Indenture has been duly authorised, executed and delivered by or on
behalf of all relevant parties (other than Yorkshire Finance);
(b) The Senior Notes will be duly authorised, executed and delivered by or on
behalf of all relevant parties (other than Yorkshire Finance).
(c) The choice of the laws of the State of New York as the governing law of the
Senior Notes and the Indenture has been in good faith and would be regarded
as a valid and binding selection which will be upheld by the courts of the
State of New York as a matter of New York law and all other relevant
courts (other than the courts of the Cayman Islands);
(d) Copy documents or the forms of documents provided to us are true copies of,
or in the final forms of, the originals;
(e) The genuineness of all signatures;
(f) The power, authority and legal right of all parties under all relevant laws
and regulations (other than Yorkshire Finance under the laws of the Cayman
Islands) to execute and perform their respective obligations under the
Senior Notes and the Indenture;
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Re: Registration Statement
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(g) The Senior Notes will be duly completed, executed, authenticated, delivered
and exchanged for a like principal amount of Original Senior Notes in
accordance with, and as contemplated by, the provisions of the Indenture;
(h) That all preconditions to the obligations of the parties to the Senior
Notes and the Subordinated Indenture have been or will be satisfied or duly
waived and there has been no breach of the terms of the Senior Notes or the
Indenture; and
(i) There is nothing under any law (other than the laws of the Cayman Islands)
which would or might affect the opinions hereinafter appearing.
Specifically, we have made no independent investigation of the laws of the
State of New York.
We render no opinion as to the negotiability or transferability by delivery of
any Senior Notes in any jurisdiction which does not recognise such negotiability
or transferability.
Based upon and subject to the foregoing and having regard to such legal
considerations as we deem relevant, we are of the opinion that:-
1. Yorkshire Finance has been duly incorporated and is validly existing under
the laws of the Cayman Islands;
2. Assuming that the precise terms of issue of the Senior Notes are duly
determined by an Attorney of the Company in accordance with the resolutions
set forth in the Minutes, the Senior Notes have been duly authorised by
Yorkshire Finance and, when executed on behalf of Yorkshire Finance,
authenticated in the manner set forth in the Junior Subordinated Indenture
and delivered in exchange for a like principal amount of validly tendered
Original Senior Notes, will constitute the legal, valid and binding
obligations of Yorkshire Finance enforceable in accordance with their terms,
except and insofar as such enforcement may be limited as hereinafter set
forth. The term "enforceable" as used above means the obligations assumed by
Yorkshire Finance under the Senior Notes are of a type which the Courts of
the Cayman Islands enforce. It does not mean those obligations will
necessarily be enforced in all circumstances in accordance with their terms
and we would draw to your attention:
(i) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization and other laws of general application relating to or
affecting the rights of creditors;
(ii) enforcement may be limited by general principles of equity - for example,
equitable remedies such as specific performance may not be available, inter
alia, where damages are considered to be an adequate remedy;
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Re: Registration Statement
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(iii) claims may become barred under the statutes of limitation or may be or
become subject to defences of set-off or counterclaim;
(iv) where obligations are to be performed in a jurisdiction outside the
Cayman Islands, they may not be enforceable in the Cayman Islands to the
extent that performance would be illegal under the laws of that
jurisdiction;
(v) in the event of any proceedings being brought in the Cayman Islands
courts in respect of a monetary obligation expressed to be payable in a
currency other than Cayman Islands dollars, a Cayman Islands court will
give judgement expressed as an order to pay such other currency on
enforcement of the judgement. With respect to winding up proceedings,
Cayman Islands law will require that all claims or debts are converted
into Yorkshire Finance's functional currency of account;
(vi) Cayman Islands stamp duty will be payable if any of the Senior Notes in
bearer form or the Indenture is brought to or executed in the Cayman
Islands, which duty would be up to CI$250 on each of the Senior Notes in
bearer form (unless Yorkshire Finance has paid a duty of CI$500 in
respect of the issue of the Senior Notes in bearer form) and would be
CI$40 on the Indenture. Senior Notes in registered form and any global
Notes representing the Senior Notes which are evidence of entitlement
only and title to which passes by entry in the relevant register, will
not be subject to Cayman Islands stamp duty. Any instrument transferring
title to any Senior Note in registered form may be subject to Cayman
Islands stamp duty of CI$100 if brought to or executed in the Cayman
Islands;
(vii) a certificate, determination, calculation or designation of any party to
the foregoing documents as to any matter provided therein might be held
by a Cayman Islands court not to be conclusive, final and binding if, for
example, it could be shown to have an unreasonable or arbitrary basis or
in the event of manifest error;
(viii) although there is no statutory enforcement in the Cayman Islands of
judgments obtained in New York, the courts of the Cayman Islands will
recognise and enforce a foreign judgment of a court of competent
jurisdiction without reexamination or relitigation of the matter
adjudicated upon, based on the principle that a judgment of a competent
foreign court imposes upon the judgment debtor an obligation to pay the
sum for which judgment has been given, and provided such judgment is
final, for a liquidated sum not in respect of taxes or a fine or penalty,
and which was not obtained in a manner, and is not of a kind the
enforcement of which is, contrary to the public policy of the Cayman
Islands; a Cayman Islands court may stay proceedings if concurrent
proceedings are being brought elsewhere;
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(ix) obligations to make payments that may be regarded as penalties will not
be enforceable to the extent that they are penal;
(x) in principle a Cayman Islands court will award costs and disbursements in
litigation in accordance with contractual provisions in this regard but
the applicable rule of court (GCR Order 62, rule 2) has been in force
only since 1st June, 1995 and there remains some uncertainty as to the
way in which it will be applicable in practice. Whilst it is clear that
costs incurred prior to judgement can be recovered in accordance with the
contract, it is likely that post-judgment costs will be recoverable, if
at all, in accordance with the scales laid down in the Grand Court
(Taxation of Costs) Rules 1995;
(xi) we reserve our opinion as to the extent to which a Cayman Islands court
would, in the event of any relevant illegality, sever the offending
provisions and enforce the remainder of the transaction of which such
provisions form a part, notwithstanding any express provisions in this
regard;
(xii) to maintain Yorkshire Finance in good standing under the laws of the
Cayman Islands, annual filing fees must be paid and Returns made to the
Registrar of Companies;
(xiii) the obligations of Yorkshire Finance under the Senior Notes or the
Indenture which involve the government of any country which is currently
the subject of United Nations sanctions as extended to the Cayman Islands
by an Order in Council (namely Iraq and Libya and each an "Affected
Country"), any person or body resident in, incorporated in or constituted
under the laws of any Affected Country or exercising public functions in
any Affected Country or any person or body controlled by any of the
foregoing or by any person acting on behalf of any of the foregoing may
be subject to restrictions pursuant to such sanctions as implemented
under the laws of the Cayman Islands;
(xiv) if Yorkshire Finance obtains a beneficial interest in any of the Senior
Notes then its rights and obligations in respect thereof may merge thus
extinguishing its rights and obligations in respect thereof, so that any
attempted resale of those Senior Notes might constitute a separate issue
of debt obligations;
(xvi) we make no comment with regard to the references to foreign statutes in
the Senior Notes or the Indenture.
This opinion is for the benefit of the addressees but may be relied upon by the
addressees' legal advisors (in that capacity only).We hereby consent to the
filing of this opinion as an exhibit to the Registration Statement and to the
reference to us under the heading "Legal Opinions" in the prospectus included in
the Registration Statement. In giving such consent, we
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To: Yorkshire Power Finance Limited 21st July, 1998
Re: Registration Statement
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do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules or regulations of
the Commission thereunder.
Yours faithfully
/s/ Maples And Calder
MAPLES AND CALDER
Attachment to Exhibit 5.2
YORKSHIRE POWER FINANCE LIMITED
Ugland House
P.O. Box 309
Grand Cayman, Cayman Islands
British West Indies
21st July, 1998
Maples and Calder
P.O. Box 309
Grand Cayman
British West Indies
Dear Sirs,
I, being a Director of YORKSHIRE POWER FINANCE LIMITED (the "Company"), hereby
certify that as at the date hereof:-
1. The Memorandum and Articles of Association of the Company as registered on
18th August, 1997 remain in full force and effect and are unamended save that
the name of the Company was changed from Yorkshire Power Finance (Cayman)
Limited to Yorkshire Power Finance Limited by special resolution of the sole
shareholder passed on 12th December, 1997.
2. The Minutes of the Meetings of the Board of Directors held on 11th February,
1998 (the "Meeting") are a true and correct record of the proceedings of the
Meeting duly convened and held, and at which a quorum was present throughout, in
the manner prescribed in the Articles of Association. The issued share capital
of the Company is 2,000 shares, which shares are fully paid up. The
shareholders of the Company, being Yorkshire Power Group Limited and Yorkshire
Holdings PLC, have not restricted the powers of the Directors in any fashion.
3. The resolutions set forth in the Minutes of the Meetings were duly adopted
and are in full force and effect at the date hereof and the resolutions set
forth in the Minutes of the Meeting, insofar as they relate to the Senior Notes
the subject of your opinion dated the date hereof, have not been amended, varied
or revoked in any respect.
4. The precise terms of issue of the Senior Notes referred to in the Minutes of
the Meeting (including principal amount and interest rates) were duly determined
by an Attorney of the Company, and the Documents and Senior Notes also referred
to in the Minutes of the Meeting were duly executed and delivered by an Attorney
on behalf of the Company, each in accordance with the resolutions set forth in
the Minutes of the Meeting.
5. The directors of the Company at the date of the Meeting and at the date
hereof were
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and are as follows:-
A.G Donnelly
R. Dickinson
G.J. Hall
6. The Minute Book and corporate records of the Company as maintained at its
registered office in the Cayman Islands and made available to you are complete
and accurate in all material respects and all Minutes and Resolutions filed
thereon represent a complete and accurate record of all Meetings of the
Shareholders and Directors duly convened in accordance with the Articles of
Association and all Resolutions passed by written consent.
7. Prior to, at the time of, and immediately following execution of the
Documents (as referred to in the Minutes of the Meeting) to which the Company is
a party, the Company was able to pay its debts as they fell due and entered into
the Documents for proper value and not with an intention to defraud or hinder
its creditors or by way of undue or fraudulent preference.
8. Each Director has acted bona fide in the interests of the Company and for
proper purposes in approving the transaction the subject of your opinion and has
disclosed his interest (if any) in accordance with the Articles of Association
of the Company.
9. No steps have been taken by the Company to wind up the Company and to the
best of my knowledge no Resolutions have been passed by the Shareholders to
voluntarily wind up the Company.
10. The Company has not entered into any mortgages and charges over its
property, details of which are required to be entered in the Register of
Mortgages and Charges maintained at its registered office in the Cayman Islands.
11. The Company has no employees located in the Cayman Islands.
Signature:.........................................
Name:
Title: Director