EXHIBIT 10.74
CONFORMED COPY
DATED 4th February, 1998
YORKSHIRE POWER FINANCE LIMITED
and
YORKSHIRE POWER GROUP LIMITED
and
BANKERS TRUSTEE COMPANY LIMITED
----------------------------
TRUST DEED
constituting
(pound)200,000,000
7.25 per cent, Guaranteed Bonds
due 2028
(with authority to issue further
bonds or notes)
------------------------------
For the Issuer
and the Guarantor:
Allen & Overy
One New Change
London EC4M9QQ
For the Trustee:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
CONTENTS
Clause
Page
1. Definitions 1
2. Covenant to Repay and to Pay Interest on Original Bonds 10
3. Form and Issue of Original Bonds and Original Coupons 13
4. Fees, Duties and Taxes 14
5. Covenant of Compliance 14
6. Cancellation of Securities and Records 14
7. Guarantee and Indemnity 15
8. Enforcement 18
9. Proceedings, Action and Indemnification 18
10. Application of Moneys 18
11. Notice of Payments 19
12. Investment by Trustee 19
13. Partial Payments 20
14. Covenants by the Issuer and the Guarantor 20
15. Remuneration and Indemnification of Trustee 24
16. Supplement to Trustee Act 1925 26
17. Trustee's Liability 29
18. Trustee Contracting with Issuer and Guarantor 29
19. Waiver, Authorisation and Determination 30
20. Holder of Definitive Bearer Security assumed to be Couponholder 30
21. Substitution 31
22. Currency Indemnity 32
23. New Trustee 32
24. Trustee's Retirement and Removal 33
25. Trustee's Powers to be Additional 34
26. Notices 34
27. Governing Law 35
28. Submission to Jurisdiction 35
29. Counterparts 36
Schedule
First Form of Original Temporary Global Bond 37
Form of Original Permanent Global Bond 48
Second Form of Original Bond 55
Form of Original Coupon 57
Form of Original Talon 58
Conditions of the Original Bonds 60
Third Register and Transfer of Registered Securities 75
Fourth Provisions for Meetings of Holders 77
THIS TRUST DEED is made on 4th February, 1998 BETWEEN:
(1) YORKSHIRE POWER FINANCE LIMITED, a company incorporated under the laws
of the Cayman Islands, whose registered office is at P.O. Box 309,
George Town, Grand Cayman, Cayman Islands (the "Issuer");
(2) YORKSHIRE POWER GROUP LIMITED, a company incorporated under the laws of
England, whose registered office is at Wetherby Road, Scarcroft, Leeds
LS14 3HS (the "Guarantor"); and
(3) BANKERS TRUSTEE COMPANY LIMITED, a company incorporated under the laws
of England, whose registered office is at 1 Appold Street, Broadgate,
London EC2A 2HE (the "Trustee", which expression shall, wherever the
context so admits, include such company and all other persons or
companies for the time being the trustee or trustees of these presents)
as trustee for the Holders and Couponholders (each as defined below).
WHEREAS:
(1) By resolutions of the board of directors of the Issuer passed on 5th
January, 1998 and by resolutions of a duly authorised committee of the
board of directors of the Issuer passed on 22nd January, 1998 the
Issuer has resolved to issue (pound)200,000,000 7.25 per cent.
Guaranteed Bonds due 2028 to be constituted by this Trust Deed.
(2) By a resolution of the Board of Directors of the Guarantor passed on
2nd December, 1997 the Guarantor has agreed to guarantee the said Bonds
and to enter into certain covenants as set out in this Trust Deed.
(3) The said Bonds in definitive form will be in bearer form with Coupons
attached.
(4) The Trustee has agreed to act as trustee of these presents for the
benefit of the Holders and Couponholders upon and subject to the terms
and conditions of these presents.
NOW THIS TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED as follows:
1. DEFINITIONS
(A) In these presents unless there is anything in the subject or context
inconsistent therewith the following expressions shall have the
following meanings:
"Agency Agreement" means, in relation to the Securities of any series,
the agreement appointing the initial Paying Agents and, if applicable,
Registrar and Transfer Agents in relation to such Securities and any
other agreement for the time being in force appointing Successor
.paying agents and, if applicable, registrars or transfer agents in
relation to such Securities, or in connection with their duties, the
terms of which have previously been approved in writing by the Trustee,
together with any agreement for the time being in force amending or
modifying with the prior written approval of the Trustee any of the
aforesaid agreements in relation to such Securities;
"Agent Bank" means, in relation to the Securities of any relevant
series, the bank initially appointed as agent bank in relation to such
Securities by the Issuer and the Guarantor pursuant to the relative
Agent Bank Agreement or, if applicable, any Successor agent bank in
relation to such Securities;
"Agent Bank Agreement" means, in relation to the Securities of any
relevant series, the agreement (which may, but need not, be the
relative Agency Agreement) appointing the initial Agent Bank in
relation to such Securities and any other agreement for the time being
in force appointing any Successor agent bank in relation to such
Securities, or in connection with its duties, the terms of which have
previously been approved in writing by the Trustee, together with any
agreement for the time being in force amending or modifying with the
prior written approval of the Trustee any of the aforesaid agreements
in relation to such Securities;
"Appointee" means any attorney, manager, agent, delegate or other
person appointed by the Trustee under these presents;
"Auditors" means the auditors for the time being of the Issuer or the
Guarantor (as the case may be) or, in the event of their being unable
or unwilling promptly to carry out any action requested of them
pursuant to the provisions of these presents, such other firm of
accountants as may be nominated or approved by the Trustee for the
purposes of these presents after consultation with the Issuer or the
Guarantor (as the case may be) where, in the opinion of the Trustee,
such consultation is practicable;
"Bearer Securities" means those of the Securities which are for the
time being in bearer form;
"Capital and Reserves" has the meaning set out in Condition 3;
"Cedel Bank" means Cedel Bank, societe anonyme;
"Conditions" means:
(i) in relation to the Original Bonds, the Conditions to be
endorsed on the Original Bonds in definitive form in the form
or substantially in the form set out in Part II of the Second
Schedule as the same may from time to time be modified in
accordance with these presents and any reference in these
presents to a particular specified Condition or paragraph of a
Condition shall in relation to the Original Bonds be construed
accordingly; and
(ii) in relation to the Further Securities of any series, the
Conditions to be endorsed on such Further Securities in
definitive form in the form or substantially in the form set
out or referred to in the supplemental Trust Deed relating
thereto as the same may from time to time be modified in
accordance with these presents and any reference in these
presents to a particular specified Condition or paragraph of a
Condition shall in relation to the Further Securities of any
series, unless either referring specifically to a particular
specified Condition or paragraph of a Condition of such
Further Securities or the context otherwise requires, be
construed as a reference to the provisions (if any) in the
Conditions thereof which correspond to the provisions of the
particular specified Condition or paragraph of a Condition of
the Original Bonds;
"Couponholders" means the several persons who are for the time being
holders of the Coupons;
"Coupons" means the bearer interest coupons appertaining to the Bearer
Securities in definitive form or, as the context may require, a
specific number thereof and includes any replacements for Coupons
issued pursuant to Condition 14 and, where the context so permits, the
Talons;
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System;
"Event of Default" means any of the conditions, events or acts provided
in Condition 11 to be events upon the happening of which the Securities
of any series would, subject only to notice by the Trustee as therein
provided, become immediately due and repayable;
"Excluded Subsidiary" has the meaning set out in Condition 3;
"Extraordinary Resolution" has the meaning set out in paragraph 21 of
the Fourth Schedule;
"Further Securities" means bonds or notes (whether in bearer or
registered form) of the Issuer constituted by a Trust Deed supplemental
to this Trust Deed pursuant to Clause 2(D) or the principal amount
thereof for the time being outstanding or as the context may require a
specific number thereof and includes any replacements for Further
Securities issued pursuant to Condition 14 and where applicable any
Global Security issued in respect thereof and, where the context
requires or admits, includes the Receipts issued in respect of any
Further Securities;
"Global Security" means the Original Temporary Global Bond and/or the
Original Permanent Global Bond and/or any other global bond or note
issued in respect of the Further Securities of any series and includes
any replacements for Global Securities issued pursuant to Condition 14;
"Holders" means the several persons who are for the time being holders
of the Securities (being, in the case of Bearer Securities, the bearers
thereof and, in the case of Registered Securities, the several persons
whose names are entered in the register of holders of the Registered
Securities as the holders thereof) and the words "holder" and "holders"
and related expressions shall (where appropriate) be construed
accordingly;
"indebtedness for borrowed money" has the meaning set out in Condition
3;
"Liability" means any loss, damage, cost, charge, claim, demand,
expense, judgment, action, proceeding or other liability whatsoever
(including, without limitation, in respect of taxes, duties, levies,
imposts and other charges) and including any value added tax or similar
tax charged or chargeable in respect thereof and legal fees and
expenses on a full indemnity basis;
"Original Bondholders" means the several persons who are for the time
being holders of the Original Bonds and, where the context so requires
or admits, shall include the Original Receiptholders;
"Original Bonds" means the bonds (in bearer form) comprising the said
(pound)200,000,000 7.25 per cent. Guaranteed Bonds due 2028 of the
Issuer hereby constituted or the principal amount thereof for the time
being outstanding or, as the context may require, a specific number
thereof and includes any replacements for Original Bonds issued
pursuant to Condition 14, where the context so requires or admits any
Original Receipts and (except for the purposes of Clause 3) the
Original Temporary Global Bond and the Original Permanent Global Bond;
"Original Couponholders" means the several persons who are for the time
being holders of the Original Coupons;
"Original Coupons" means the Coupons appertaining to the Original
Bonds;
"Original Permanent Global Bond" means the permanent global bond in
respect of the Original Bonds to be issued pursuant to Clause 3(C) in
the form or substantially in the form set out in the First Schedule;
"Original Receiptholders" means the holders of the Original Receipts;
"Original Receipts" means the Receipts appertaining to the Original
Bonds;
"Original Talons" means the Talons appertaining to the Original Bonds
in definitive form;
"Original Temporary Global Bond" means the temporary global bond in
respect of the Original Bonds to be issued pursuant to Clause 3(A) in
the form or substantially in the form set out in the First Schedule;
"outstanding" means in relation to the Securities all the Securities
issued other than:
(a) those Securities which have been redeemed pursuant to these
presents;
(b) those Securities in respect of which the date for redemption
in accordance with the Conditions has occurred and the
redemption moneys (including premium (if any) and all interest
payable thereon) have been duly paid to the Trustee or to the
Principal Paying Agent in the manner provided in the Agency
Agreement (and where appropriate notice to that effect has
been given to the relative Holders in accordance with
Condition 15) and remain available for payment against
presentation of the relevant Securities and/or Coupons;
(c) those Securities which have been purchased and cancelled in
accordance with Condition 7;
(d) those Securities which have become void under Condition 10;
(e) those mutilated or defaced Securities which have been
surrendered and cancelled and in respect of which replacements
have been issued pursuant to Condition 14;
(f) (for the purpose only of ascertaining the principal amount of
the Securities outstanding and without prejudice to the status
for any other purpose of the relevant Securities) those
Securities which are alleged to have been lost, stolen or
destroyed and in respect of which replacements have been
issued pursuant to Condition 14;
(g) any Global Security to the extent that it shall have been
exchanged for another Global Security in respect of the
Securities of the relevant series or for the Securities of the
relevant series in definitive form pursuant to its provisions;
and
(h) those Bearer Securities which have been exchanged for
Registered Securities (and, where applicable, vice versa) and
which have been cancelled or, if permitted by the Conditions
of such Securities, are for the time being retained by or on
behalf of the Issuer, in each case pursuant to the provisions
of these presents.
PROVIDED THAT for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Holders or
any of them;
(ii) the determination of how many and which Securities are for the
time being outstanding for the purposes of Clause 9(A),
Conditions 11, 12 and 16 and paragraphs 2, 5, 6 and 9 of the
Fourth Schedule;
(iii) any discretion, power or authority (whether contained in these
presents or vested by operation of law) which the Trustee is
required, expressly or impliedly, to exercise in or by
reference to the interests of the Holders or any of them; and
(iv) the determination by the Trustee whether any event,
circumstance, matter or thing is, in its opinion, materially
prejudicial to the interests of the Holders or any of them,
those Securities (if any) which are for the time being held by, for the
benefit of, or on behalf of, the Issuer, the Guarantor or any other
Subsidiary of the Guarantor, any holding company of the Guarantor or
any other Subsidiary of any such holding company, in each case as
beneficial owner, shall (unless and until ceasing to be so held) be
deemed not to remain outstanding;
"Paying Agents" means, in relation to the Securities of any series, the
several institutions (including where the context permits the Principal
Paying Agent) at their respective specified offices initially appointed
as paying agents in relation to such Securities by the Issuer and the
Guarantor pursuant to the relative Agency Agreement and/or, if
applicable, any Successor paying agents in relation to such.
Securities;
"PES Licence" has the meaning set out in Condition 3(j);
"PES Subsidiary" has the meaning set out in Condition 3;
"Potential Event of Default" means any condition, event or act which,
with the lapse of time and/or the issue, making or giving of any
notice, certification, declaration, demand, determination and/or
request and/or the taking of any similar action and/or the fulfillment
of any Similar condition, would constitute an Event of Default;
"Principal Paying Agent" means, in relation to the Securities of any
series, the institution at its Specified office initially appointed as
principal paying agent in relation to such Securities by the Issuer and
the Guarantor pursuant to the relative Agency Agreement or, if
applicable, any Successor principal paying agent in relation to such
Securities;
"Principal Subsidiary" means at any time a Subsidiary of the Guarantor
(other than the Issuer and not being an Excluded Subsidiary or any
other Subsidiary of the Guarantor whose only indebtedness for borrowed
money is Project Finance Indebtedness):
(a) whose net profits before tax attributable to the Guarantor
(consolidated in the case of a Subsidiary which itself has
Subsidiaries and which in the normal course, prepares con-
solidated accounts) or whose gross assets (consolidated in the
case of a Subsidiary which itself has Subsidiaries) represent
in each case (or, in the case of a Subsidiary acquired after
the end of the financial period to which the then latest
relevant audited consolidated accounts of the Guarantor and
its Subsidiaries relate, are equal to) not less than 20 per
cent, of the consolidated net profits before tax attributable
to the shareholders of the Guarantor, or, as the case may be,
consolidated gross assets, of the Guarantor and its Subsidi-
aries taken as a whole, all as calculated respectively by
reference to the then latest audited accounts (consolidated
or, as the case may be, unconsolidated) of such Subsidiary
and the then latest audited consolidated accounts of the
Guarantor and its Subsidiaries, provided that
(i) in the case of a Subsidiary acquired after the end of
the financial period to which the then latest
relevant audited consolidated accounts relate, the
reference to the then latest audited consolidated
accounts for the purposes of the calculation above
shall, until consolidated accounts for the financial
period in which the acquisition is made have been
prepared and audited as aforesaid, be deemed to
be a reference to such first-mentioned accounts as
if such Subsidiary had been shown in such accounts by
reference to its then latest relevant audited
accounts, adjusted as deemed appropriate by the
Auditors of the Guarantor; and
(ii) if, in the case of a Subsidiary which itself has
Subsidiaries, no consolidated accounts are prepared
and audited, its consolidated net profits before tax
attributable to the Guarantor and consolidated gross
assets shall be determined on the basis of pro forma
consolidated accounts of the relevant Subsidiary and
its Subsidiaries prepared and audited for this
purpose by the Auditors of the Guarantor or the
auditors for the time being of the relevant
Subsidiary; or
(b) to which is transferred all or substantially all of the
business, undertaking and assets of a Subsidiary of the
Guarantor which immediately prior to such transfer is a
Principal Subsidiary of the Guarantor, provided that the
transferor Subsidiary shall upon such transfer forthwith
cease to be a Principal Subsidiary of the Guarantor and the
transferee Subsidiary shall cease to be a Principal Subsidiary
of the Guarantor pursuant to this sub-paragraph (b) on the
date on which the consolidated accounts of the Guarantor and
its Subsidiaries for the financial period current at the
date of such transfer have been prepared and audited as
aforesaid but so that such transferor Subsidiary or such
transferee Subsidiary may be a Principal Subsidiary of the
Guarantor on or at any time after the date on which such
consolidated accounts have been prepared and audited as
aforesaid by virtue of the provisions of sub-paragraph (a)
above or before, on or at any time after such date by virtue
of the provisions of this sub-paragraph (b) or sub-paragraph
(c) below; or
(c) to which is transferred a business, an undertaking or assets
which, taken together with the business, undertaking and
assets of the transferee Subsidiary, generated (or, in the
case of the transferee Subsidiary being acquired after the
end of the financial period to which the then latest relevant
audited consolidated, accounts of the Guarantor and its Sub-
sidiaries relate, generate net profits before tax attributable
to the Guarantor equal to) not less than 20 per cent. of the
consolidated net profits before tax attributable to the share-
holders of the Guarantor, or represent (or, in the case afore-
said, are equal to) not less than 20 per cent, of the consoli-
dated gross assets, of the Guarantor and its Subsidiaries
taken as a whole, all as calculated as referred to in sub-
paragraph (a) above, provided that the transferor Subsidiary
(if a Principal Subsidiary of the Guarantor) shall upon such
transfer forthwith cease to be a Principal Subsidiary of the
Guarantor unless immediately following such transfer its
business, undertaking and assets generate (or, in the case
aforesaid, generate net profits before tax attributable to
the Guarantor equal to) not less than 20 per cent. of the con-
solidated net profits before tax attributable to the share-
holders of the Guarantor, or its assets represent (or, in the
case aforesaid, are equal to) not less than 20 per cent.
of the consolidated gross assets, of the Guarantor and its
Subsidiaries taken as a whole, all as calculated as referred
to in sub-paragraph (a) above, and the transferee Subsidiary
shall cease to be a Principal Subsidiary of the Guarantor
pursuant to this sub-paragraph (c) on the date on which the
consolidated accounts of the Guarantor and its Subsidiaries
for the financial period current at the date of such transfer
have been prepared and audited but so that such transferor
Subsidiary or such transferee Subsidiary may be a Principal
Subsidiary of the Guarantor on or at any time after the date
on which such consolidated accounts have been prepared and
audited as aforesaid by virtue of the provisions of sub-
paragraph (a) above or before, on or at any time after such
date by virtue of the provisions of this sub-paragraph (c)
or sub-paragraph (b) above,
provided that, in calculating the consolidated net profits before tax
attributable to the shareholders of the Guarantor or consolidated gross
assets of the Guarantor and its Subsidiaries taken as a whole, amounts
in respect of minority interests shall only be excluded if and to the
extent that such amounts have not been already excluded in the course
of preparation of the relevant consolidated accounts.
For the purposes of this definition if there shall at any time not be
any relevant audited consolidated accounts of the Guarantor and its
Subsidiaries, references thereto herein shall be deemed to refer to a
consolidation by the Auditors of the Guarantor of the relevant audited
accounts of the Guarantor and its Subsidiaries.
A report by the Auditors of the Guarantor that in their opinion a
Subsidiary of the Guarantor is or is not or was or was not at any
particular time or throughout any specified period a Principal
Subsidiary of the Guarantor shall, in the absence of manifest error, be
conclusive and binding on all parties;
"Project Finance Indebtedness" has the meaning set out in Condition 3;
"Receiptholders" means the holders of the Receipts;
"Receipts" means the non-transferable receipts (if any) for Securities
to be issued by Paying Agents to the Holders pursuant to Condition
8(c);
"Reference Banks" means, in relation to the Securities of any relevant
series, the several banks initially appointed as reference banks in
relation to such Securities by the Issuer and the Guarantor and
referred to in the Conditions of such Securities and/or, if applicable,
any Successor reference banks in relation to such Securities;
"Registered Securities" means those of the Securities which are for the
time being in registered form;
"Registrar" means, in relation to the Securities of any relevant series
(being, or which are exchangeable for, Registered Securities), the
institution at its specified office initially appointed as registrar in
relation to such Securities by the Issuer and the Guarantor pursuant to
the relative Agency Agreement or, if applicable, any Successor
registrar in relation to such Securities;
"Relevant Date" has the meaning set out in Condition 9;
"Relevant Indebtedness" has the meaning set out in Condition 3;
"repay", "redeem" and "pay" shall each include both the others and
cognate expressions shall be construed accordingly;
"Restructuring Event" has the meaning set out in Condition 8(d)(vii);
"Security Interest" has the meaning set out in Condition 3;
"Securities" means, as the context may require, the Original Bonds
and/or any Further Securities and/or any series thereof;
"Subsidiary" means any company which is for the time being a subsidiary
(within the meaning of Section 736 of the Companies Act 1985 of Great
Britain);
"Successor" means, in relation to the Agent Bank, the Principal Paying
Agent, the other Paying Agents, the Reference Banks, the Registrar and
the Transfer Agents, any successor to any one or more of them in
relation to the Securities of the relevant series which shall become
such pursuant to the provisions of these presents, the relative Agent
Bank Agreement and/or the relative Agency Agreement (as the case may
be) and/or such other or further agent bank, principal paying agent,
paying agents, reference banks, registrar and/or transfer agents (as
the case may be) in relation to such Securities as may (with the prior
approval of, and on terms previously approved by, the Trustee in
writing) from time to time be appointed as such, and/or, if applicable,
such other or further specified offices (in the former case being
within the same city as those for which they are substituted) as may
from time to time be nominated, in each case by the Issuer and, if
applicable, the Guarantor, and (except in the case of the initial
appointments and specified offices made under and specified in the
Conditions, the relative Agent Bank Agreement and/or the relative
Agency Agreement, as the case may be) notice of whose appointment or,
as the case may be, nomination has been given to the relevant Holders
pursuant to Clause 14(xiii) in accordance with Condition 15;
"Talons" means the talons appertaining to, and exchangeable in
accordance with the provisions therein contained for further Coupons
appertaining to, the Bearer Securities of any relevant Series in
definitive form and includes any replacements for Talons issued
pursuant to Condition 14;
"The Stock Exchange" means, in relation to the Securities of any
relevant series, the stock exchange or exchanges (if any) on which such
Securities are quoted or listed on the issue thereof;
"these presents" means this Trust Deed and the Schedules and any Trust
Deed Supplemental hereto and the Schedules (if any) thereto and the
Securities, the Coupons and the Conditions, all as from time to time
modified in accordance with the provisions herein or therein Contained;
"Transfer Agents" means, in relation to the Securities of any relevant
series (being, or which are exchangeable for, Registered Securities),
the institutions at their respective specified offices initially
appointed as transfer agents in relation to such Securities by the
Issuer and the Guarantor pursuant to the relative Agency Agreement
and/or, if applicable, any Successor transfer agents in relation to
such Securities;
"Trust Corporation" means a corporation entitled by rules made under
the Public Trustee Act 1906 of Great Britain or entitled pursuant to
any other comparable legislation applicable to a trustee in any other
jurisdiction to carry out the functions of a custodian trustee;
words denoting the singular shall include the plural and vice versa;
words denoting one gender only shall include the other genders; and
words denoting persons only shall include firms and corporations and
vice versa.
(B) (i) All references in these presents to principal and/or
premium and/or interest in respect of the Securities or to any
moneys payable by the Issuer and/or the Guarantor under these
presents shall be deemed to include a reference to any
additional amounts which may be payable under Condition 9 or,
if applicable, under any undertaking or covenant given
pursuant to Clause 14(xv) or Clause 21(A)(2)(ii).
(ii) All references in these presents to principal or principal
amount shall, unless the context otherwise requires, be deemed
to include the Redemption Price (as defined in Condition 7).
(iii) All references in these presents to "pounds", "sterling",
"pounds sterling" or the sign "(pound)" shall be construed as
references to the lawful currency for the time being of the
United Kingdom.
(iv) All references in these presents to any statute or any
provision of any statute shall be deemed also to refer to any
statutory modification or re-enactment thereof or any
statutory instrument, order or regulation made thereunder or
under any such modification or re-enactment.
(v) All references in these presents to guarantees or to an
obligation being guaranteed shall be deemed to include
respectively references to indemnities or to an indemnity
being given in respect thereof.
(vi) All references in these presents to any action, remedy or
method of proceeding for the enforcement of the rights of
creditors shall be deemed to include, in respect of any
jurisdiction other than England, references to such action,
remedy or method of proceeding for the enforcement of the
rights of creditors available or appropriate in such
jurisdiction as shall most nearly approximate to such action,
remedy or method of proceeding described or referred to in
these presents.
(vii) All references in these presents to taking proceedings against
the Issuer and/or the Guarantor shall be deemed to include
references to proving in the winding up of the Issuer and/or
the Guarantor (as the case may be).
(viii) Wherever in these presents the Issuer or the Guarantor (as the
case may be) is required to give an opinion or make any
determination, the Issuer or the Guarantor (as the case may
be) shall, in so doing, be entitled to rely on advice from
professional advisers but so that, as between the Issuer or
the Guarantor (as the case may be), the Trustee, the Holders
and the Couponholders, the Issuer or the Guarantor (as the
case may be) alone shall be liable as to the validity of such
opinion or determination.
(ix) Unless the context otherwise requires words or expressions
used in these presents shall bear the same meanings as in the
Companies Act 1985 of Great Britain.
(x) In this Trust Deed references to Schedules, Clauses,
sub-clauses, paragraphs and sub-paragraphs shall be construed
as references to the Schedules to this Trust Deed and to the
Clauses, sub-clauses, paragraphs and sub-paragraphs of this
Trust Deed respectively.
(xi) In these presents tables of contents and Clause headings are
included for ease of reference and shall not affect the
construction of these presents.
2. COVENANT TO REPAY AND TO PAY INTEREST ON ORIGINAL BONDS
(A) THE aggregate principal amount of the Original Bonds is limited to
(pound)200,000,000.
(B) The Issuer covenants with the Trustee that it will, in accordance with
these presents, on the due date for the final maturity of the Original
Bonds provided for in the Conditions, or on such earlier date as the
same or any part thereof may become immediately due and repayable
thereunder, pay or procure to be paid unconditionally to or to the
order of the Trustee in pounds sterling in London in immediately
available funds the principal amount of the Original Bonds repayable
on that date and shall in the meantime and until such date (both before
and after any judgment or other order of a court of competent juris-
diction) pay or procure to be paid unconditionally to or to the order
of the Trustee as aforesaid interest (which shall accrue from day to
day) on the principal amount of the Original Bonds at the rate of 7.25
per cent. per annum payable (less tax, if appropriate) annually in
arrear on 4th August, the first such payment to be made on 4th August,
1998 in respect of the period from (and including) 4th February,
1998 to (but excluding) 4th August, 1998 PROVIDED THAT:
(i) every payment of principal or interest in respect of the
Original Bonds to or to the account of the Principal Paying
Agent in the manner provided in the Agency Agreement shall
operate in satisfaction pro tanto of the relative covenant by
the Issuer in this Clause except to the extent that there is
default in the subsequent payment thereof in accordance with
the Conditions to the relevant Original Bondholders or
Original Couponholders (as the case may be);
(ii) in any case where payment of principal is not made to the
Trustee or the Principal Paying Agent on or before the due
date, interest shall continue to accrue on the principal
amount of the Original Bonds (both before and after any
judgment or other order of a court of competent jurisdiction)
at the rate aforesaid (or, if higher, the rate of interest
on judgment debts for the time being provided by English law)
up to and including the date which the Trustee determines to
be the date on and after which payment is to be made to the
Original Bondholders in respect thereof as stated in a notice
given to the Original Bondholders in accordance with Condition
15 (such date to be not later than 30 days after the day on
which the whole of such principal amount, together with an
amount equal to the interest which has accrued and is to
accrue pursuant to this proviso up to and including that date,
has been received by the Trustee or the Principal Paying
Agent);
(iii) in any case where payment of the whole or any part of the
principal amount of any Original Bond is improperly withheld
or refused upon due presentation thereof (other than in
circumstances contemplated by proviso (ii) above) interest
shall accrue on that principal amount payment of which has
been so withheld or refused (both before and after any
judgment or other order of a court of competent jurisdiction)
at the rate aforesaid or, if higher, the rate of interest on
judgment debts for the time being provided by English law)
from and including the date of such withholding or refusal
up to and including the date on which, upon further presenta-
tion of the relevant Original Bond, payment of the full
amount (including interest as aforesaid) in pounds sterling
payable in respect of such Original Bond is made or (if
earlier) the seventh day after notice is given to the relevant
Original Bondholder (either individually or in accordance
with Condition 15) that the full amount (including interest as
aforesaid) in pounds sterling payable in respect of such
Original Bond is available for payment, provided that, upon
further presentation thereof being duly made, such payment is
made.
The Trustee will hold the benefit of this covenant on trust for the
Original Bondholders and the Original Couponholders in accordance with
these presents.
TRUSTEE'S REQUIREMENTS REGARDING PAYING AGENTS, REGISTRAR AND TRANSFER
AGENTS
(C) At any time alter an Event of Default or a Potential Event of Default
shall have occurred or the Securities shall otherwise have become due
and repayable or the Trustee shall have received any money which it
proposes to pay under Clause 10 to the Holders and/or Couponholders,
the Trustee may:
(i) by notice in writing to the Issuer, the Guarantor, the
Principal Paying Agent, the other Paying Agents, the Registrar
and the Transfer Agents require the Principal Paying Agent,
the other Paying Agents, the Registrar and the Transfer Agents
pursuant to the Agency Agreement:
(a) to act thereafter as Principal Paying Agent, Paying
Agents, Registrar and Transfer Agents respectively of
the Trustee in relation to payments to be made by
or on behalf of. the Trustee under the provisions of
these presents mutatis mutandis on the terms provided
in the Agency Agreement (save that the Trustee's
liability under any provisions thereof for the
indemnification, remuneration and payment of out-of-
pocket expenses of the Paying Agents, the Registrar
and the Transfer Agents shall be limited to the
amounts for the time being held by the Trustee on the
trusts of these presents relating to the relative
Securities) and thereafter to hold all Securities and
Coupons and all sums, documents and records held by
them in respect of Securities and Coupons on behalf
of the Trustee; or
(b) to deliver up all Securities and Coupons and all
sums, documents and records held by them in respect
of Securities and Coupons to the Trustee or as the
Trustee shall direct in such notice provided that
such notice shall be deemed not to apply to any
documents or records which the relative Paying Agent,
the Registrar or the relative Transfer Agent, as the
case may be, is obliged not to release by any law or
regulation; and
(ii) by notice in writing to the Issuer and the Guarantor require
each of them to make all subsequent payments in respect of the
Securities and Coupons to or to the order of the Trustee and
not to the Principal Paying Agent; with effect from the issue
of any such notice to the Issuer and the Guarantor and until
such notice is withdrawn provisos (i) and (ii) to sub-clause
(B) of this Clause relating to the Original Bonds and any
similar provisos relating to any Further Securities shall
cease to have effect.
FURTHER ISSUES
(D) (i) The Issuer shall be at liberty from time to time (but
subject always to the provisions of these presents) without
the consent of the Holders or Couponholders to create and
issue further bonds or notes (whether in bearer or registered
form) either (a) ranking pari passu in all respects (or in all
respects save for the first payment of interest thereon), and
so that the same shall be consolidated and form a single
series, with the Original Bonds and/or the Further Securities
of any series or (b) upon such terms as to ranking, interest,
conversion, redemption and otherwise as the Issuer may at the
time of issue thereof determine.
(ii) Any further bonds or notes which are to be created and
issued pursuant to the provisions of paragraph (i) above
so as to form a single series with the Original Bonds and/or
the Further Securities of any series shall be constituted by
a trust deed supplemental to this Trust Deed and any other
further bonds or notes which are to be created and issued
pursuant to the provisions of paragraph (i) above may
(subject to the consent of the Trustee) be constituted by a
trust deed supplemental to this Trust Deed. In any such case
the Issuer and the Guarantor shall prior to the issue of any
further bonds or notes to be so constituted (being Further
Securities) execute and deliver to the Trustee a trust deed
supplemental to this Trust Deed (in relation to which all
applicable stamp duties or other documentation fees, duties or
taxes have been paid and, if applicable, duly stamped or
denoted accordingly) and containing a covenant by the Issuer
in the form mutatis mutandis of Clause 2(B) in relation to
the principal, premium (if any) and interest in respect of
such Further Securities and such other provisions (whether
or not corresponding to any of the provisions contained in
this Trust Deed) as the Trustee shall require.
(iii) A memorandum of every such supplemental Trust Deed shall be
endorsed by the Trustee on this Trust Deed and by the Issuer
and the Guarantor on their duplicates of this Trust Deed.
(iv) Whenever it is proposed to create and issue any Further
Securities the Issuer shall give to the Trustee not less than
14 days' notice in writing of its intention so to do stating
the amount of further bonds or notes proposed to be created
and issued.
(E) Any Further Securities not forming a single series with the Original
Bonds or Further Securities of any series shall form a separate series
and accordingly, unless for any purpose the Trustee in its absolute
discretion shall otherwise determine, the provisions of sub-clause (C)
of this Clause and of Clauses 4 to 22 (both inclusive) and 23(B) and
the Third and Fourth Schedules shall apply mutatis mutandis separately
and independently to each series of the Securities and in such Clauses
and Schedules the expressions "Securities", "Holders", "Coupons",
"Couponholders", "Receipts", "Receiptholders" and "Talons" shall be
construed accordingly.
3. FORM AND ISSUE OF ORIGINAL BONDS AND ORIGINAL COUPONS
(A) THE Original Bonds shall be represented initially by the Original
Temporary Global Bond which the Issuer shall issue to a bank depositary
common to both Euroclear and Cedel Bank on terms that such depositary
shall hold the same for the account of the persons who would otherwise
be entitled to receive the Original Bonds in definitive form
("Definitive Original Bonds") (as notified to such depositary by UBS
Limited on behalf of the Managers of the issue of the Original Bonds)
and the successors in title to such persons as appearing in the records
of Euroclear and Cedel Bank for the time being.
(B) The Original Temporary Global Bond shall be printed or typed in the
form or substantially in the form set out in the First Schedule. The
Original Temporary Global Bond shall be in the aggregate principal
amount shown therein and shall be signed manually by a person duly
authorised by the Issuer on behalf of the Issuer and shall be
authenticated by or on behalf of the Principal Paying Agent. The
Original Temporary Global Bond so executed and authenticated shall be a
binding and valid obligation of the Issuer.
(C) The Issuer shall issue the Original Permanent Global Bond in exchange
for the Original Temporary Global Bond in accordance with the
provisions thereof. The Original Permanent Global Bond shall be printed
or typed in the form or substantially in the form set out in the First
Schedule. The Original Permanent Global Bond shall be in the aggregate
principal amount shown therein and shall be signed manually or in
facsimile by a person duly authorised by the Issuer on behalf of the
Issuer and shall be authenticated by or on behalf of the Principal
Paying Agent. The Original Permanent Global Bond so executed and
authenticated shall be a binding and valid obligation of the Issuer.
(D) The Issuer shall issue the Definitive Original Bonds (together with the
unmatured Original Coupons attached) in exchange for the Original
Permanent Global Bond in accordance with the provisions thereof.
Pending exchange of the entire principal amount of the Original
Permanent Global Bond the holder thereof shall, subject to the terms
thereof, be deemed to be the holder of the Original Bonds and the
Original Coupons represented thereby for all purposes.
(E) The Definitive Original Bonds and the Original Coupons shall be issued
to bearer in the respective forms or substantially in the respective
forms set out in Part I of the Second Schedule and the Definitive
Original Bonds shall be issued in the denominations of (pound)1,000,
(pound)10,000 and (pound)100,000 (serially numbered) and shall be
endorsed with the Conditions. Title to the Definitive Original Bonds
and the Original Coupons shall pass by delivery.
(F) The Definitive Original Bonds shall be signed manually or in
facsimile by a Director of the Issuer on behalf of the Issuer and shall
be authenticated by or on behalf of the Principal Paying Agent. The
Issuer may use the facsimile signature of any person who at the date
such signature is affixed is a Director of the Issuer notwithstanding
that at the time of issue of any of the Definitive Original Bonds he
may have ceased for any reason to be the holder of such office. The
Definitive Original Bonds so executed and authenticated and the
Original Coupons, upon execution and authentication of the relevant
Definitive Original Bonds, shall be binding and valid obligations of
the Issuer. The Original Coupons shall not be signed.
4. FEES, DUTIES AND TAXES
THE Issuer will pay any stamp, issue, registration, documentary and
other fees, duties and taxes, including interest and penalties, payable
on or in connection with (i) the execution and delivery of these
presents, (ii) the constitution and original issue of the Securities
and the Coupons and (iii) any action taken by or on behalf of the
Trustee or (where permitted under these presents so to do) any Holder
or Couponholder to enforce, or to resolve any doubt concerning, or for
any other purpose in relation to, these presents.
5. COVENANT OF COMPLIANCE
EACH of the Issuer and the Guarantor severally covenants with the
Trustee that it will comply with and perform and observe all the
provisions of these presents which are expressed to be binding on it.
The Conditions shall be binding on the Issuer, the Guarantor, the
Holders and the Couponholders. The Trustee shall be entitled to enforce
the obligations of the Issuer and the Guarantor under the Securities
and the Coupons as if the same were set out and contained in the trust
deeds constituting the same, which shall be read and construed as one
document with the Securities and the Coupons.
The Trustee shall hold the benefit of this covenant upon trust for
itself and the Holders according to its and their respective interests.
6. CANCELLATION OF SECURITIES AND RECORDS
(A) THE Issuer shall procure that all Securities (i) redeemed or (ii)
purchased by or on behalf of the Issuer, the Guarantor or any other
Subsidiary of the Guarantor and surrendered for cancellation or
(iii) which, being mutilated or defaced, have been surrendered and
replaced pursuant to Condition 14 or (iv) exchanged as provided in
these presents (together in each case with all unmatured Coupons
attached thereto or delivered therewith) and all Coupons paid in
accordance with the Conditions or which, being mutilated or defaced,
have been surrendered and replaced pursuant to Condition 14 and all
Talons exchanged in accordance with the Conditions for further Coupons
shall forthwith be cancelled by or on behalf of the Issuer and a
certificate stating:
(a) the aggregate principal amount of Securities which have been
redeemed and the aggregate amounts in respect of Coupons which
have been paid;
(b) the serial numbers of such Bearer Securities in definitive
form;
(c) the total numbers (where applicable, of each denomination) by
maturity date of such Coupons;
(d) the aggregate amount of interest paid (and the due dates of
such payments) on Global Securities and/or on Registered
Securities;
(e) the aggregate principal amount of Securities (if any) which
have been purchased by or on behalf of the Issuer, the
Guarantor or any other Subsidiary of the Guarantor and
cancelled and the serial numbers of such Bearer Securities in
definitive form and the total number (where applicable, of
each denomination) by maturity date of the Coupons attached
thereto or surrendered therewith;
(f) the aggregate principal amounts of Securities and the
aggregate amounts in respect of Coupons which have been so
exchanged or surrendered and replaced and the serial numbers
of such Bearer Securities in definitive form and the total
number (where applicable, of each denomination) by maturity
date of such Coupons;
(g) the total number (where applicable, of each denomination) by
maturity date of unmatured Coupons missing from Securities in
definitive form bearing interest at a fixed rate which have
been redeemed or exchanged or surrendered and replaced and the
serial numbers of the Bearer Securities in definitive form to
which such missing unmatured Coupons appertained; and
(h) the total number (where applicable, of each denomination) by
maturity date of Talons which have been exchanged for further
Coupons,
shall be given to the Trustee by or on behalf of the Issuer as soon as
possible and in any event within four months after the date of such
redemption, purchase, payment, exchange or replacement (as the case may
be). The Trustee may accept such certificate as conclusive evidence of
redemption, purchase, exchange or replacement pro tanto of the
Securities or payment of interest thereon or exchange of the Talons
respectively and of cancellation of the relative Securities and
Coupons.
(B) The Issuer shall procure (i) that the Principal Paying Agent shall
keep a full and complete record of all Securities and Coupons (other
than serial numbers of Coupons) and of their redemption, purchase by
or on behalf of the Issuer, the Guarantor or any other Subsidiary of
the Guarantor, cancellation, payment or exchange (as the case may be)
and of all replacement securities or coupons or talons issued in sub-
stitution for lost, stolen, mutilated, defaced or destroyed Securities
or Coupons (ii) that the Principal Paying Agent shall in respect of
the Coupons of each maturity retain (in the case of Coupons other
than Talons) until the expiry of 10 years from the Relevant Date in
respect of such Coupons and (in the case of Talons) indefinitely
either all paid or exchanged Coupons of that maturity or a list of
the serial numbers of Coupons of that maturity still remaining unpaid
or unexchanged and (iii) that such records and Coupons (if any) shall
be made available to the Trustee at all reasonable times.
7. GUARANTEE AND INDEMNITY
(A) THE Guarantor hereby irrevocably and unconditionally guarantees to the
Trustee:
(i) the due and punctual payment in accordance with the provisions
of these presents of the principal of and premium (if any) and
interest on the Securities and of any other amounts payable by
the Issuer under these presents; and
(ii) the due and punctual performance and observance by the Issuer
of each of the other provisions of these presents on the
Issuer's part to be performed or observed.
(B) If the Issuer fails for any reason whatsoever punctually to pay any
such principal, premium, interest or other amount, the Guarantor shall
cause each and every such payment to be made as if the Guarantor
instead of the Issuer were expressed to be the primary obligor under
these presents and not merely as surety (but without affecting the
nature of the Issuer's obligations) to the intent that the holder of
the relevant Security, Coupon or Receipt or the Trustee (as the case
may be) shall receive the same amounts in respect of principal,
premium, interest or such other amount as would have been receivable
had such payments been made by the Issuer.
(C) If any payment received by the Trustee or any Holder or Couponholder
under the provisions of these presents shall (whether on the subsequent
bankruptcy, insolvency or corporate reorganisation of the Issuer
or, without limitation, on any other event) be avoided or set aside
for any reason, such payment shall not be considered as discharging
or diminishing the liability of the Guarantor and this guarantee
shall continue to apply as if such payment had at all times remained
owing by the Issuer and the Guarantor shall indemnify the Trustee and
the Holders and/or Couponholders and/or Receiptholders (as the case
may be) in respect thereof PROVIDED THAT the obligations of the
Issuer and/or the Guarantor under this sub-clause shall, as regards
each payment made to the Trustee or any Holder or Couponholder or
Receiptholder which is avoided or set aside, be contingent upon such
payment being reimbursed to the Issuer or other persons entitled
through the Issuer.
(D) The Guarantor hereby agrees that its obligations under this Clause
shall be unconditional and that the Guarantor shall be fully liable
irrespective of the validity, regularity, legality or enforceability
against the Issuer of, or of any defence or counter-claim whatsoever
available to the Issuer in relation to, its obligations under these
presents, whether or not any action has been taken to enforce the same
or any judgment obtained against the Issuer, whether or not any of the
other provisions of these presents have been modified, whether or not
any time, indulgence, waiver, authorisation or consent has been
granted to the Issuer by or on behalf of the Holders or the Coupon-
holders or the Receiptholders or the Trustee, whether or not any
determination has been made by the Trustee pursuant to Clause 19(A),
whether or not there have been any dealings or transactions between
the Issuer, any of the Holders or Couponholders or Receiptholders or
the Trustee, whether or not the Issuer has been dissolved,
liquidated, merged, consolidated, bankrupted or has changed its status,
functions, control or ownership, whether or not the Issuer has been
prevented from making payment by foreign exchange provisions applicable
at its place of registration or incorporation and whether or not
any other circumstances have occurred which might otherwise con-
stitute a legal or equitable discharge of or defence to a guarantor.
Accordingly the validity of this guarantee shall not be affected
by reason of any invalidity, irregularity, illegality or unenforce-
ability of all or any of the obligations of the Issuer under these
presents and this guarantee shall not be discharged nor shall the
liability of the Guarantor under these presents be affected by any
act, thing or omission or means whatever whereby its liability would
not have been discharged if it had been the principal debtor.
(E) Without prejudice to the provisions of Clause 9(A) the Trustee may
determine from time to time whether or not it will enforce this
guarantee which it may do without making any demand of or taking any
proceedings against the Issuer and may from time to time make any
arrangement or compromise with the Guarantor in relation to this
guarantee which the Trustee may consider expedient in the interests of
the Holders.
(F) The Guarantor waives diligence, presentment, demand of payment, filing
of claims with a court in the event of dissolution, liquidation, merger
or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to these presents or
the indebtedness evidenced thereby and all demands whatsoever and
covenants that this guarantee shall be a continuing guarantee, shall
extend to the ultimate balance of all sums payable and obligations owed
by the Issuer under these presents, shall not be discharged except by
complete performance of the obligations in these presents and is
additional to, and not instead of, any security or other guarantee
or indemnity at any time existing in favour of any person, whether
from the Guarantor or otherwise.
(G) If any moneys shall become payable by the Guarantor under this
guarantee the Guarantor shall not, so long as the same remain unpaid,
without the prior written consent of the Trustee:
(i) in respect of any amounts paid by it under this guarantee,
exercise any rights of subrogation or contribution or, without
limitation. any other right or remedy which may accrue to it
in respect of or as a result of any such payment; or
(ii) in respect of any other moneys for the time being due to the
Guarantor by the Issuer, claim payment thereof or exercise any
other right or remedy;
(including in either case claiming the benefit of any security or right
of set-off or, on the liquidation of the Issuer, proving in competition
with the Trustee). If, notwithstanding the foregoing, upon the
bankruptcy, insolvency or liquidation of the Issuer, any payment or
distribution of assets of the Issuer of any kind or character, whether
in cash, property or securities, shall be received by the Guarantor
before payment in full of all amounts payable under these presents
shall have been made to the Holders, the Couponholders, the
Receiptholders and the Trustee, such payment or distribution shall be
received by the Guarantor on trust to pay the same over immediately to
the Trustee for application in or towards the payment of all sums due
and unpaid under these presents in accordance with Clause 10.
(H) The obligations of the Guarantor under these presents constitute
direct, unconditional and (subject to the provisions of Condition 3)
unsecured obligations of the Guarantor and (subject as aforesaid) rank
and will rank pari passu with all other outstanding unsecured and
unsubordinated obligations of the Guarantor, present and future, but,
in the event of insolvency, only to the extent permitted by applicable
laws relating to creditors' rights.
(I) As separate, independent and alternative stipulations, the Guarantor
unconditionally and irrevocably agrees (1) that any sum which, although
expressed to be payable by the Issuer under this Trust Deed, the
Securities or the Coupons, is for any reason (whether or not now
existing and whether or not now known or becoming known to the Issuer,
the Guarantor, the Trustee or any holder or Couponholder) not recover-
able from the Guarantor on the basis of a guarantee will nevertheless
be recoverable from it as if it were the sole principal debtor and
will be paid by it to the Trustee on demand and (2) as a primary
obligation to indemnify the Trustee, each Holder and each Couponholder
against any loss suffered by it as a result of any sum expressed to be
payable by the Issuer under this Trust Deed, the Securities or the
Coupons not being paid on the date and otherwise in the manner
specified in this Trust Deed or any payment obligation of the Issuer
under this Trust Deed, the Securities or the Coupons being or
becoming void, voidable or unenforceable for any reason (whether
or not now existing and whether or not now known or becoming known to
the Trustee, any Holder or any Couponholder), the amount of any such
loss being the amount expressed to be payable by the Issuer in respect
of the relevant sum.
8. ENFORCEMENT
(A) THE Trustee may at any time, at its discretion and without notice, take
such proceedings and/or other action as it may think fit against or in
relation to each of the Issuer and the Guarantor to enforce their
respective obligations under these presents.
(B) Proof that as regards any specified Security or Coupon the Issuer or
the Guarantor (as the case may be) has made default in paying any
amount due in respect of such Security or Coupon shall (unless the
contrary be proved) be sufficient evidence that the same default has
been made as regards all other Securities or Coupons (as the case may
be) in respect of which the relevant amount is due and payable.
(C) References in the provisions of any Trust Deed supplemental to this
Trust Deed corresponding to provisos (ii) and (iii) to Clause 2(B) to
"the rate aforesaid" shall, in respect of any Securities bearing
interest at a floating or variable rate, in the event of such
Securities having become due and repayable, with effect from the expiry
of the interest period during which such Securities become due and
repayable, be construed as references to a rate of interest calculated
mutatis mutandis in accordance with the Conditions except that no
notices need be published in respect thereof.
9. PROCEEDINGS, ACTION AND INDEMNIFICATION
(A) THE Trustee shall not be bound to take any proceedings mentioned in
Clause 8(A) or any other action in relation to these presents unless
respectively directed or requested to do so (i) by an Extraordinary
Resolution or (ii) in writing by the holders of at least one-quarter in
principal amount of the Securities then outstanding and in either case
then only if it shall be indemnified to its satisfaction against all
Liabilities to which it may thereby render itself liable or which it
may incur by so doing.
(B) Only the Trustee may enforce the provisions of these presents. No
Holder or Couponholder shall be entitled to proceed directly against
the Issuer or the Guarantor to enforce the performance of any of the
provisions of these presents unless the Trustee having become bound as
aforesaid to take proceedings fails to do so within a reasonable period
and such failure is continuing.
10. APPLICATION OF MONEYS
ALL moneys received by the Trustee under these presents shall, unless
and to the extent attributable in the opinion of the Trustee to a
particular series of the Securities, be apportioned pari passu and
rateably between each series of the Securities, and all moneys received
by the Trustee under these presents to the extent attributable in the
opinion of the Trustee to a particular series of the Securities or
which are apportioned to such series as aforesaid (including any moneys
which represent principal, premium or interest in respect of Securities
or Coupons which have become void under Condition 10) shall be held by
the Trustee upon trust to apply them (subject to Clause 12):
FIRST in payment or satisfaction of all amounts then due and unpaid
under Clauses 15 and/or 16(J) to the Trustee and/or any Appointee;
SECONDLY in or towards payment pari passu and rateably of all
principal, premium (if any) and interest then due and unpaid in respect
of the Securities of that series;
THIRDLY in or towards payment pari passu and rateably of all principal,
premium (if any) and interest then due and unpaid in respect of the
Securities of each other series; and
FOURTHLY in payment of the balance (if any) to the Issuer or the
Guarantor, as the case may be, (without prejudice to, or liability in
respect of, any question as to how such payment to the Issuer shall be
dealt with as between the Issuer, the Guarantor and any other person).
Without prejudice to this Clause 10, if the Trustee holds any moneys
which represent principal, premium (if any) and interest in respect of
the Securities which have become void or in respect of which claims
have been prescribed under Condition 10, the Trustee will hold such
moneys on the above trusts.
11. NOTICE OF PAYMENTS
THE Trustee shall give notice to the relevant Holders in accordance
with Condition 15 of the day fixed for any payment to them under Clause
10. Such payment may be made in accordance with Condition 6 and any
payment so made shall be a good discharge to the Trustee.
12. INVESTMENT BY TRUSTEE
(A) IF the amount of the moneys at any time available for the payment of
principal, premium (if any) and interest in respect of the Securities
under Clause 10 shall be less than 10 per cent. of the principal
amount of the Securities then outstanding the Trustee may at its
discretion invest such moneys in some or one of the investments
authorised below. The Trustee at its discretion may vary such invest-
ments and may accumulate such investments and the resulting income
until the accumulations, together with any other funds for the time
being under the control of the Trustee and available for such purpose,
amount to at least 10 per cent. of the principal amount of the
Securities then outstanding and then such accumulations and funds shall
be applied under Clause 10.
(B) Any moneys which under the trusts of these presents ought to or may be
invested by the Trustee may be invested in the name or under the
control of the Trustee in any investments or other assets in any part
of the world whether or not they produce income or by placing the
same on deposit in the name or under the control of the Trustee at such
bank or other financial institution and in such currency as the Trustee
may think fit. If such bank or financial institution is the Trustee
or a Subsidiary, holding or associated company of the Trustee it
need only account for an amount of interest equal to the largest
amount of interest payable by it on such a deposit to an independent
customer. The Trustee may at any time vary any such investments for or
into other investments or convert any moneys so deposited into any
other currency and shall not be responsible for any loss resulting
from any such investments or deposits, whether due to depreciation in
value, fluctuations in exchange rates or otherwise.
13. PARTIAL PAYMENTS
UPON any payment under Clause 10 (other than payment in full against
surrender of a Security or Coupon) the Security or Coupon in respect of
which such payment is made shall be produced to the Trustee or the
Paying Agent by or through whom such payment is made and the Trustee
shall or shall cause such Paying Agent to enface thereon a memorandum
of the amount and the date of payment but the Trustee may in any
particular case or generally in relation to Registered Securities
dispense with such production and enfacement upon such indemnity being
given as it shall think sufficient.
14. COVENANTS BY THE ISSUER AND THE GUARANTOR
SO long as any of the Securities remains outstanding (or, in the case
of paragraphs (viii), (ix), (xiii) to (xvi) inclusive and (xviii), so
long as any of the Securities or Coupons remains liable to
prescription) each of the Issuer and the Guarantor severally covenants
with the Trustee that it shall:
(i) at all times carry on and conduct its affairs and procure its
Subsidiaries (if any) to carry on and conduct their respective
affairs in a proper and efficient manner;
(ii) give or procure to be given to the Trustee such opinions,
certificates, information and evidence as it shall properly
require and in such form as it shall properly require
(including without limitation the procurement by the Issuer
and/or the Guarantor of all such certificates called for by
the Trustee pursuant to Clause 16(C)) for the purpose of the
proper discharge or exercise of the duties, trusts, powers,
authorities and discretions vested in it under these presents
or by operation of law;
(iii) cause to be prepared and certified by its Auditors in respect
of each financial accounting period accounts in such form as
will comply with all relevant legal and accounting
requirements and all applicable requirements for the time
being of The Stock Exchange;
(iv) at all times keep and procure its Subsidiaries (if any) to
keep proper books of account and following the occurrence of
an Event of Default or a Potential Event of Default or if the
Trustee has grounds to believe that an Event of Default or a
Potential Event of Default has occurred or is likely to occur
allow and procure its Subsidiaries to allow the Trustee and
any person appointed by the Trustee to whom the Issuer, the
Guarantor or the relevant Subsidiary (as the case may be)
shall have no reasonable objection free access to such books
of account at all reasonable times during normal business
hours;
(v) send to the Trustee (in addition to any copies to which it may
be entitled as a holder of any securities of the Issuer or the
Guarantor) two copies in English of every balance sheet,
profit and loss account, report, circular and notice of
general meeting and every other document issued or sent to its
shareholders in their capacity as such together with any of
the foregoing, and every document issued or sent to holders of
securities other than its shareholders (including the Holders)
in their capacity as such as soon as reasonably practicable
after the issue or publication thereof;
(vi) forthwith give notice in writing to the Trustee of the coming
in to existence of any Security Interest which would require
any security to be given to any series of the Securities
pursuant to Condition 3 or of the occurrence of any Event of
Default or any Potential Event of Default or any Restructuring
Event
(vii) give to the Trustee (a) within seven days after demand by the
Trustee therefor and (b) (without the necessity for any such
demand) promptly after the publication of its audited accounts
(if such audited accounts are prepared and published) in
respect of each financial period commencing with the financial
period ending 31st March, 1998 (or such later date as may be
the end of the first financial period in respect of which such
accounts are required to be prepared) and in any event not
later than 180 days after the end of each such financial
period a certificate signed by two Directors of the Issuer and
two Directors of the Guarantor to the effect that as at a
date not more than seven days before delivering such certifi-
cate (the "relevant date") there did not exist and had not
existed since the relevant date of the previous certificate
(or in the case of the first such certificate the date hereof)
any Event of Default or any Potential Event of Default or any
Restructuring Event (or if such exists or existed specifying
the same) and that during the period from and including the
relevant date of the last such certificate or in the case of
the first such certificate the date hereof) to and including
the relevant date of such certificate each of the Issuer and
the Guarantor has complied with all its obligations contained
in these presents or (if such is not the case) specifying the
respects in which it has not complied;
(viii) at all times execute and do all such further documents, acts
and things as may be necessary at any time or times in the
opinion of the Trustee to give effect to these presents;
(ix) at all times maintain an Agent Bank, Reference Banks, Paying
Agents, a Registrar and Transfer Agents in accordance with the
Conditions;
(x) procure the Principal Paying Agent to notify the Trustee
forthwith in the event that it does not, on or before the due
date for any payment in respect of the Securities or any of
them or any of the Coupons, receive unconditionally pursuant
to the Agency Agreement payment of the full amount in the
requisite currency of the moneys payable on such due date on
all such Securities or Coupons as the case may be;
(xi) in the event of the unconditional payment to the Principal
Paying Agent of any sum due in respect of the Securities or
any of them or any of the Coupons being made after the due
date for payment thereof forthwith give or procure to be given
notice to the relevant Holders in accordance with Condition 15
that such payment has been made;
(xii) use all reasonable endeavours to maintain the listing of the
Securities on The Stock Exchange or, if it is unable to do so
having used all reasonable endeavours, use all reasonable
endeavours to obtain and maintain a quotation or listing of
the Securities on such other stock exchange or exchanges or
securities market or markets as the Issuer may (with the prior
written approval of the Trustee) decide and shall also upon
obtaining a quotation or listing of the Securities on such
other stock exchange or exchanges or securities market or
markets enter into a trust deed supplemental to this Trust
Deed to effect such consequential amendments to these presents
as the Trustee may require or as shall be requisite to comply
with the requirements of any such stock exchange or securities
market;
(xiii) give notice to the Holders in accordance with Condition 15
of any appointment, resignation or removal of any Agent Bank,
Reference Bank, Paying Agent, Registrar or Transfer Agent
(other than the appointment of the initial Agent Bank,
Reference Banks, Paying Agents, Registrar and Transfer Agents)
after having obtained the prior written approval of the
Trustee thereto or any change of any Paying Agents,
Registrar's or Transfer Agent's specified office and (except
as provided by the Agent Bank Agreement or the Agency Agree-
ment or the Conditions) at least 30 days prior to such
event taking effect; PROVIDED ALWAYS THAT so long as any of
the Securities remains outstanding in the case of the termina-
tion of the appointment of the Agent Bank, the Registrar or
a Transfer Agent or so long as any of the Securities or
Coupons remains liable to prescription in the case of the
termination of the appointment of the Principal Paying Agent
no such termination shall take effect until a new Agent Bank,
Registrar, Transfer Agent or Principal Paying Agent (as the
case may be) has been appointed on terms previously approved
in writing by the Trustee;
(xiv) obtain the prior written approval of the Trustee to, and
promptly give to the Trustee two copies of, the form of every
notice given to the Holders in accordance with Condition 15
(such approval, unless so expressed, not to constitute
approval for the purposes of Section 57 of the Financial
Services Act 1986 of the United Kingdom of any such notice
which is an investment advertisement (as therein defined));
(xv) if payments of principal, premium or interest in respect of
the Securities or the Coupons by the Issuer or the Guarantor
shall become subject generally to the taxing jurisdiction of
any territory or any political sub-division thereof or any
authority therein or thereof having power to tax other than
or in addition to the United Kingdom or any such political
sub-division thereof or any such authority therein or
thereof, as soon as reasonably practicable after having
become aware thereof notify the Trustee of such event and
(unless the Trustee otherwise agrees) enter forthwith into a
Trust Deed supplemental to this Trust Deed, giving to the
Trustee (if required by it) an undertaking or covenant in form
and manner satisfactory to the Trustee confirming the juris-
diction or jurisdictions which is or are the Relevant Juris-
diction for the purposes of Condition 7 and Condition 9;
(xvi) comply with and perform all its obligations under the Agent
Bank Agreement and the Agency Agreement and use all reasonable
endeavours to procure that the Agent Bank, the Paying Agents,
the Registrar and the Transfer Agents comply with and perform
all their respective obligations thereunder and (in the case
of the Paying Agents) any notice given by the Trustee pursuant
to Clause 2(C)(i) and not make any amendment or modification
to either of such Agreements without the prior written
approval of the Trustee;
(xvii) in order to enable the Trustee to ascertain the principal
amount of Securities of each series for the time being
outstanding for any of the purposes referred to in the proviso
to the definition of "outstanding" in Clause 1, deliver to the
Trustee forthwith upon being so requested in writing by the
Trustee a certificate in writing signed by two Directors of
the Issuer or two Directors of the Guarantor (as appropriate)
setting out the total number and aggregate principal amount of
Securities of each series which:
(a) up to and including the date of such certificate have
been purchased by the Issuer, the Guarantor, any
other Subsidiary of the Guarantor, any holding
company of the Guarantor or any other Subsidiary of
any such holding company and cancelled; and
(b) are at the date of such certificate held by, for the
benefit of, or on behalf of, the Issuer, the
Guarantor, any other Subsidiary of the Guarantor, any
holding company of the Guarantor or any other
Subsidiary of any such holding company;
(xviii) procure its Subsidiaries to comply with all (if any)
applicable provisions of Condition 7(d);
(xix) procure that each of the Paying Agents makes available for
inspection by Holders and Couponholders at its specified
office copies of these presents, the Agency Agreement, the
Agent Bank Agreement and the then latest audited balance sheet
and profit and loss account (consolidated if applicable) of
the Issuer and the Guarantor;
(xx) if, in accordance with the provisions of the Conditions,
interest in respect of Bearer Securities denominated in U.S.
dollars becomes payable at the specified office of any Paying
Agent in the United States of America promptly give notice
thereof to the Holders in accordance with Condition 15;
(xxi) give to the Trustee at the same time as sending to it the
certificates referred to in paragraph (vii) above and in any
event not later than 180 days after the last day of each
financial period of the Guarantor, a certificate by the
Auditors of the Guarantor listing those Subsidiaries of the
Guarantor which as at the relevant date (as defined in
paragraph (vii) above) of the relevant certificate given under
paragraph (vii) above or, as the case may be, as at such last
day were Principal Subsidiaries of the Guarantor for the
purposes of Condition 11;
(xxii) (in respect of the Guarantor only) give to the Trustee, as
soon as reasonably practicable after the acquisition or
disposal of any company which thereby becomes or ceases to be
a Principal Subsidiary of the Guarantor or after any transfer
is made to any Subsidiary of the Guarantor which thereby
becomes a Principal Subsidiary of the Guarantor, a certificate
by the Auditors of the Guarantor to such effect;
(xxiii) upon due surrender in accordance with the Conditions, pay the
face value of all Coupons (including Coupons issued in
exchange for Talons) appertaining to all Securities purchased
by (except for those held by the Issuer) the Issuer, the
Guarantor, any other Subsidiary of the Guarantor, any holding
company of the Guarantor or any other Subsidiary of any such
holding company;
(xxiv) (in respect of the Guarantor only) give to the Trustee a
certificate of the Auditors of the Guarantor:
(a) specifying the amount of the Capital and Reserves for
the purposes of Condition 3, such certificate to be
provided before the Issuer creates or has outstanding
a Security Interest in respect of any Relevant
Indebtedness and/or guarantees within Condition 3;
(b) specifying that a Subsidiary of the Guarantor
satisfies the provisions of Condition 3(c)(i) and
(ii), such certificate to be provided before or at
the same time as any written notice given to the
Trustee by the Guarantor under Condition 3(c)(iii)
that a Subsidiary of the Guarantor is an Excluded
Subsidiary; and
(c) specifying the amount of the Capital and Reserves for
the purposes of Condition 11(c), such certificate to
be provided within 10 days of any request by the
Trustee for its provision;
(xxv) give to the Trustee a certificate of two Directors of the Issuer
or of the Guarantor:
specifying the aggregate amount of any Relevant
Indebtedness of the Issuer, the Guarantor or a PES
Subsidiary or guaranteed by the Issuer, the Guarantor
or a PES Subsidiary and in respect of which a
Security Interest or Security Interests has or have
been created or is or are outstanding, such
certificate to be provided before the Issuer, the
Guarantor or a PES Subsidiary creates or has
outstanding any new Security Interest;
(xxvi) procure delivery to the Trustee of a certificate of two
Directors of Yorkshire Electricity Group plc ("YEG"):
(a) specifying details of any modification to the terms
and conditions of the PES Licence, such certificate
to be provided promptly upon any such modification
being made; and
(b) specifying any higher figure determined by the
Director (as defined in the PES Licence) as is
mentioned in Condition 11, such certificate to be
provided within 5 days of the Director determining
such figure by notice in writing to the Secretary of
State (as defined in the PES Licence) and YEG; and
(xxvii) give notice to the Trustee as soon as practicable after its
Directors or the Directors of any PBS Subsidiary have resolved
to give any Security Interest in respect of any Relevant
Indebtedness or guarantee as described in Condition 3.
15. REMUNERATION AND INDEMNIFICATION OF TRUSTEE
(A) THE Issuer shall pay to the Trustee remuneration for its services
as trustee as from the date of this Trust Deed, such remuneration to
be at such rate as may from time to time be agreed between the Issuer,
the Guarantor and the Trustee. Such remuneration shall be payable in
advance on 4th February in each year, the first such payment to be made
on the date hereof. Upon the issue of any Further Securities the rate
of remuneration in force immediately prior thereto shall be increased
by such amount as shall be agreed between the Issuer and the Trustee,
such increased remuneration to be calculated from such date as shall be
agreed as aforesaid. The rate of remuneration in force from time to
time may upon the final redemption of the whole of the Securities of
any series be reduced by such amount as shall be agreed between the
Issuer and the Trustee, such reduced remuneration to be calculated
from such date as shall be agreed as aforesaid. Such remuneration shall
accrue from day to day and be payable (in priority to payments to the
Holders and Couponholders) up to and including the date when, all the
Securities having become due for redemption, the redemption moneys
and interest thereon to the date of redemption have been paid to the
Principal Paying Agent or the Trustee PROVIDED THAT if upon due pre-
sentation of any Security or Coupon or any cheque payment of the moneys
due in respect thereof is improperly withheld or refused, remuneration
will commence again to accrue.
(B) In the event of the occurrence of an Event of Default or a Potential
Event of Default or the Trustee considering it expedient or necessary
or being requested by the Issuer or the Guarantor to undertake duties
which the Trustee and the Issuer or (as the case may be) the Guarantor
agree to be of an exceptional nature or otherwise outside the scope of
the normal duties of the Trustee under these presents the Issuer shall
pay to the Trustee such additional remuneration as shall be agreed
between them (being the Issuer, the Guarantor and the Trustee).
(C) The Issuer shall in addition pay to the Trustee an amount equal to the
amount of any value added tax or similar tax chargeable in respect of
its remuneration under these presents.
(D) In the event of the Trustee and the Issuer or (as the case may be) the
Guarantor failing to agree:
(1) (in a case to which sub-clause (A) above applies) upon the
amount of the remuneration; or
(2) (in a case to which sub-clause (B) above applies) upon whether
such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Trustee under
these presents, or upon such additional remuneration,
such matters shall be determined by a merchant bank (acting as an
expert and not as an arbitrator) selected by the Trustee and approved
by the Issuer or, falling such approval, nominated (on the application
of the Trustee) by the President for the time being of The Law Society
of England and Wales (the expenses involved in such nomination and the
fees of such merchant bank being payable by the Issuer or failing whom
the Guarantor) and the determination of any such merchant bank shall be
final and binding upon the Trustee and the Issuer and (where relevant)
the Guarantor.
(E) The Issuer shall also, pay or discharge all Liabilities incurred by the
Trustee in relation to the preparation and execution of, the exercise
of its powers and the performance of its duties under, and in any other
manner in relation to, these presents, including but not limited to
travelling expenses and any stamp, issue, registration. documentary and
other taxes or duties paid or payable by the Trustee in connection with
any action taken or contemplated by or on behalf of the Trustee for
enforcing, or resolving any doubt concerning, or for any other purpose
in relation to, these presents.
(F) All amounts payable pursuant to sub-clause (E) above and/or Clause
16(J) shall be payable by the Issuer within 14 days of a demand by the
Trustee and in the case of payments actually made by the Trustee prior
to such demand shall (if not paid within seven days after such
demand and the Trustee so requires) carry interest at the rate of
one per cent. per annum above the Base Rate from time to time of.
National Westminster Bank Plc from the date specified in such demand,
and in all other cases shall (if not paid within 14 days of such
demand or, if later, within seven days after such demand and, in either
case, the Trustee so requires) carry interest at such rate from the
date specified in such demand. All remuneration payable to the Trustee
shall carry interest at such rate from the due date therefor.
(G) Unless otherwise specifically stated in any discharge of these presents
the provisions of this Clause and Clause 16(J) shall continue in full
force and effect notwithstanding such discharge.
(H) The Trustee shall be entitled in its absolute discretion to determine
in respect of which series of Securities any Liabilities incurred under
these presents have been incurred or to allocate any such Liabilities
between the Original Bonds and any Further Securities of any series.
16. SUPPLEMENT TO TRUSTEE ACT 1925
THE Trustee shall have all the powers conferred upon trustees by the
Trustee Act 1925 of England and Wales and by way of supplement thereto
it is expressly declared as follows:
(A) The Trustee may in relation to these presents act on the advice or
opinion of or any information obtained from any lawyer, valuer,
accountant, surveyor, banker, broker, auctioneer or other expert
whether obtained by the Issuer, the Guarantor, the Trustee or otherwise
and shall not be responsible for any Liability occasioned by so acting.
(B) Any such advice, opinion or information may be sent or obtained by
letter, telex, telegram. facsimile transmission or cable and the
Trustee shall not be liable for acting on any advice, opinion or
information purporting to be conveyed by any such letter, telex,
telegram, facsimile transmission or cable although the same shall
contain some error or shall not be authentic.
(C) The Trustee may call for and shall be at liberty to accept as
sufficient evidence of any fact or matter or the expediency of any
transaction or thing a certificate signed by any two Directors of the
Issuer and/or by any two Directors of the Guarantor and/or (where
permitted by the Conditions) any two Directors of YEG and the Trustee
shall not be bound in any such case to call for further evidence or be
responsible for any Liability that may be occasioned by it or any other
person acting on such certificate.
(D) The Trustee shall be at liberty to hold or to place these presents and
any other documents relating thereto in any part of the world with any
banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm of lawyers
considered by the Trustee to be of good repute and the Trustee shall
not be responsible for or required to insure against any Liability
incurred in connection with any such deposit and may pay all sums
required to be paid on account of or in respect of any such deposit.
(E) The Trustee shall not be responsible for the receipt or application of
the proceeds of the issue of any of the Securities by the Issuer, the
exchange of any Global Security for another Global Security or
definitive Securities or the delivery of any Global Security or
definitive Securities to the person(s) entitled to it or them.
(F) The Trustee shall not be bound to give notice to any person of the
execution of any documents comprised or referred to in these presents
or to take any steps to ascertain whether any Event of Default,
Potential Event of Default, Negative Rating Event, any Restructuring
Event or any event which could lead to the occurrence of or could
constitute a Restructuring Event has occurred and, until it shall
have actual knowledge or express notice pursuant to these presents
to the contrary, the Trustee shall be entitled to assume that no Event
of Default, Potential Event of Default, Negative Rating Event, any
Restructuring Event or any other such event has occurred and that the
Issuer and the Guarantor are observing and performing all their
respective obligations under these presents.
(G) Save as expressly otherwise provided in these presents, the Trustee
shall have absolute and uncontrolled discretion as to the exercise of
its trusts, powers, authorities and discretions under these presents
(the exercise of which as between the Trustee and the Holders and
Couponholders shall be conclusive and binding on the Holders and
Couponholders) and shall not be responsible for any Liability which may
result from their exercise or non-exercise.
(H) The Trustee shall not be liable to any person by reason of having acted
upon any resolution purporting to have been passed at any meeting of
the Holders of Securities of all or any series in respect whereof
minutes have been made and signed even though subsequent to its acting
it may be found that there was some defect in the constitution of the
meeting or the passing of the resolution or that for any reason the
resolution was not valid or binding upon such Holders and the relative
Couponholders.
(I) The Trustee shall not be liable to any person by reason of having
accepted as valid or not having rejected any Security or Coupon
purporting to be such and subsequently found to be forged or not
authentic.
(J) Without prejudice to the right of indemnity by law given to trustees,
each of the Issuer and the Guarantor shall severally indemnify the
Trustee and every Appointee and keep it or him indemnified against all
Liabilities to which it or he may be or become subject or which may be
incurred by it or him in the execution or purported execution of any of
its trusts, powers, authorities and discretions under these presents or
its or his functions under any such appointment or in respect of any
other matter or thing done or omitted in any way relating to these
presents or any such appointment.
(K) Any consent or approval given by the Trustee for the purposes of these
presents may be given on such terms and subject to such conditions (if
any) as the Trustee thinks fit and notwithstanding anything to the
contrary in these presents may be given retrospectively.
(L) The Trustee shall not (unless and to the extent ordered so to do by a
court of competent jurisdiction) be required to disclose to any Holder
or Couponholder any information (including, without limitation,
information of a confidential, financial or price sensitive nature)
made available to the Trustee by the Issuer or the Guarantor or YEG or
any. other person in connection with these presents and no Holder or
Couponholder shall be entitled to take any action to obtain from the
Trustee any such information.
(M) Where it is necessary or desirable for any purpose in connection with
these presents to convert any sum from one currency to another it shall
(unless otherwise provided by these presents or required by law) be
converted at such rate or rates, in accordance with such method and as
at such date for the determination of such rate of exchange, as may be
agreed by the Trustee in consultation with the Issuer or the Guarantor
as relevant and any rate, method and date so agreed shall be binding on
the Issuer, the Guarantor, the Holders and the Couponholders.
(N) The Trustee may certify whether or not any of the conditions, events
and acts set out in sub-paragraphs (b), (c), (e), (f), (g) and (h)
(both inclusive) of Condition 11 (each of which conditions, events and
acts shall, unless in any case the Trustee in its absolute discretion
shall otherwise determine, for all the purposes of these presents be
deemed to include the circumstances resulting therein and the
consequences resulting therefrom) is in its opinion materially
prejudicial to the interests of the Holders and any such certificate
shall be conclusive and binding upon the Issuer, the Guarantor, the
Holders and the Couponholders.
(O) The Trustee as between itself and the Holders and Couponholders may
determine all questions and doubts arising in relation to any of the
provisions of these presents. Every such determination, whether or not
relating in whole or in part to the acts or proceedings of the Trustee,
shall be conclusive and shall bind the Trustee and the Holders and
Couponholders.
(P) In connection with the exercise by it of any of its trusts, powers,
authorities and discretions under these presents (including, without
limitation, any modification, waiver, authorisation, determination
or substitution), the Trustee shall have regard to the interests of
the Holders as a class and, in particular but without limitation, shall
not have regard to the consequences of such exercise for individual
Holders or Couponholders resulting from their being for any purpose
domiciled or resident in, or otherwise connected with, or subject to
the jurisdiction of, any particular territory or any political sub-
division thereof and the Trustee shall not be entitled to require, nor
shall any Holder or Couponholder be entitled to claim, from the Issuer,
the Guarantor, the Trustee or any other person any indemnification or
payment in respect of any tax consequence of any such exercise upon
individual Holders or Couponholders except to the extent already
provided for in Condition 9 and/or any undertaking given in addition
thereto or in substitution therefor under these presents.
(Q) Any trustee of these presents being a lawyer, accountant, broker or
other person engaged in any profession or business shall be entitled to
charge and be paid all usual professional and other charges for
business transacted and acts done by him or his firm in connection with
the trusts of these presents and also his reasonable charges in
addition to disbursements for all other work and business done and all
time spent by him or his firm in connection with matters arising in
connection with these presents.
(R) The Trustee may whenever it thinks fit delegate by power of attorney
or otherwise to any person or persons or fluctuating body of persons
(whether being a joint trustee of these presents or not) all or any of
its trusts, powers, authorities and discretions under these presents.
Such delegation may be made upon such terms (including power to sub-
delegate) and subject to such conditions and regulations as the Trustee
may in the interests of the Holders think fit. The Trustee shall not
be under any obligation to supervise the proceedings or acts of any
such delegate or sub-delegate or be in any way responsible for any
Liability incurred by reason of any misconduct or default on the
part of any such delegate or sub-delegate. The Trustee shall within
a reasonable time after any such delegation or any renewal, extension
or termination thereof give notice thereof to the Issuer.
(S) The Trustee may in the conduct of the trusts of these presents instead
of acting personally employ and pay an agent (whether being a lawyer or
other professional person) to transact or conduct, or concur in
transacting or conducting, any business and to do, or concur in doing,
all acts required to be done in connection with these presents
(including the receipt and payment of money). The Trustee shall not be
in any way responsible for any Liability incurred by reason of any
misconduct or default on the part of any such agent or be bound to
supervise the proceedings or acts of any such agent.
(T) The Trustee shall not be responsible for the execution, delivery,
legality, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of these presents or any
other document relating thereto and shall not be liable for any failure
to obtain any licence, consent or other authority for the execution,
delivery, legality, effectiveness, adequacy, genuineness, validity,
performance, enforceability or admissibility in evidence of these
presents or any other document relating thereto.
l7. TRUSTEE'S LIABILITY
NOTHING in these presents shall in any case in which the Trustee has
failed to show the degree of care and diligence required of it as
trustee having regard to the provisions of these presents conferring on
it any trusts, powers, authorities or discretions exempt the Trustee
from or indemnify it against any liability for breach of trust or any
Liability which by virtue of any rule of law would otherwise attach to
it in respect of any negligence, default, breach of duty or breach of
trust of which it may be guilty in relation to its duties under these
presents.
18. TRUSTEE CONTRACTING WITH ISSUER AND GUARANTOR
NEITHER the Trustee nor any director or officer of a corporation acting
as a trustee under these presents shall by reason of its or his
fiduciary position be in any way precluded from:
(i) entering into or being interested in any contract or financial
or other transaction or arrangement with the Issuer or the
Guarantor or any person or body corporate associated with the
Issuer or the Guarantor (including without limitation any con-
tract, transaction or arrangement of a banking or insurance
nature or any contract, transaction or arrangement in relation
to the making of loans or the provision of financial
facilities to, or the purchase, placing or underwriting of
or the subscribing or procuring subscriptions for or otherwise
acquiring, holding or dealing with the Securities or any other
bonds, notes, stocks, shares, debenture stock debentures or
other securities of, the Issuer or the Guarantor or any
person or body corporate associated as aforesaid); or
(ii) accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or
relating to the Issuer or the Guarantor or any such person or
body corporate so associated or any other office of profit
under the Issuer or the Guarantor or any such person or body
corporate so associated,
and shall be entitled to retain and shall not be in any way liable to
account for any profit made or share of brokerage or commission or
remuneration or other benefit received thereby or in connection
therewith.
19. WAIVER, AUTHORISATION AND DETERMINATION
(A) THE Trustee may without prejudice to its rights in respect of any
subsequent breach, Event of Default or Potential Event of Default
from time to time and at any time but only if and in so far as in its
opinion the interests of the Holders shall not be materially prejudiced
thereby waive or authorise any breach or proposed breach by the Issuer
or the Guarantor of any of the covenants or provisions contained in
these presents or determine that any Event of Default or Potential
Event of Default shall not be treated as such for the purposes of these
presents PROVIDED ALWAYS THAT the Trustee shall not exercise any powers
conferred on it by this Clause in contravention of any express direc-
tion given by Extraordinary Resolution or by a request under Condition
11 but so that no such direction or request shall affect any waiver,
authorisation or determination previously given or made. Any such
waiver, authorisation or determination may be given or made on such
terms and subject to such conditions (if any) as the Trustee may
determine, shall be binding on the Holders and the Couponholders and,
if, but only if, the Trustee shall so require, shall be notified by the
Issuer to the Holders in accordance with Condition 15 as soon as
practicable thereafter.
MODIFICATION
(B) The Trustee may without the consent of the Holders or Couponholders
at any time and from time to time concur with the Issuer and the
Guarantor in making any modification (i) to these presents (other than
the proviso to paragraphs of the Fourth Schedule or any of the matters
referred to in that proviso) which in the opinion of the Trustee it
may be proper to make PROVIDED THAT the Trustee is of the opinion that
such modification will not be materially prejudicial to the interests
of the Holders or (ii) to these presents if in the opinion of the
Trustee such modification is of a formal, minor or technical nature or
to correct a manifest error. Any such modification may be made on
such terms and subject to such conditions (if any) as the Trustee may
determine, shall be binding upon the Holders and the Couponholders
and, unless the Trustee agrees otherwise, shall be notified by the
Issuer to the Holders in accordance with Condition 15 as soon as
practicable thereafter.
20. HOLDER OF DEFINITIVE BEARER SECURITY ASSUMED TO BE COUPONHOLDER
(A) WHEREVER in these presents the Trustee is required or entitled to
exercise a power, trust, authority or discretion under these presents,
except as ordered by a court of competent jurisdiction or as required
by applicable law, the Trustee shall, notwithstanding that it may have
express notice to the contrary, assume that each Holder is the holder
of all Coupons appertaining to each Bearer Security in definitive form
of which he is the holder.
NO NOTICE TO COUPONHOLDERS
(B) Neither the Trustee nor the Issuer nor the Guarantor shall be required
to give any notice to the Couponholders for any purpose under these
presents and the Couponholders shall be deemed for all purposes to have
notice of the contents of any notice given to the Holders in accordance
with Condition 15.
ENTITLEMENT TO TREAT HOLDER AS ABSOLUTE OWNER
(C) The Issuer, the Guarantor, the Trustee, the Paying Agents, the
Registrar and the Transfer Agents may (to the fullest extent permitted
by applicable laws) deem and treat the holder of any Security and the
holder of any Coupon as the absolute owner of such Security or
Coupon, as the case may be, for all purposes (whether or not such
Security or Coupon shall be overdue and notwithstanding any notice
of ownership thereof, any notice of loss or theft thereof or any
writing thereon), and the Issuer, the Guarantor, the Trustee, the
Paying Agents, the Registrar and the Transfer Agents shall not be
affected by any notice to the contrary. All payments made to any
such holder shall be valid and, to the extent of the sums so paid,
effective to satisfy and discharge the liability for the moneys
payable in respect of such Security or Coupon, as the case may be.
21. SUBSTITUTION
(A) (1) The Trustee may without the consent of the Holders or Coupon-
holders at any time agree with the Issuer and the Guarantor
to the substitution in place of the Issuer (or of the previous
substitute under this Clause) is the principal debtor under
these presents of the Guarantor or any other Subsidiary of
the Guarantor (such substituted company being hereinafter
called the "New Company") provided that a trust deed is
executed or some other form of undertaking is given by the
New Company in form and manner satisfactory to the Trustee,
agreeing to be bound by the provisions of these presents with
any consequential amendments which the Trustee may deem
appropriate as fully as if the New Company had been named in
these presents as the principal debtor in place of the
Issuer (or of the previous substitute under this Clause) and
provided further that (other than in the case of a substitu-
tion of the Guarantor) the Guarantor unconditionally and
irrevocably guarantees all amounts payable under these
presents save where YEG has transferred the PES Licence to the
New Company.
(2) The following further conditions shall apply to (1) above:
(i) the Issuer, the Guarantor and the New Company shall
comply with such other requirements as the Trustee
may direct in the interests of the Holders;
(ii) without prejudice to the rights of reliance of the
Trustee under the immediately following paragraph
(iii), the Trustee is satisfied that the relevant
transaction is not materially prejudicial to the
interests of the Holders; and
(iii) if two Directors of the New Company (or other
officers acceptable to the Trustee) shall certify
that the New Company is solvent at the time at which
the relevant transaction is proposed to be effected
(which certificate the Trustee may rely upon
absolutely) the Trustee shall not be under any duty
to have regard to the financial condition, profits or
prospects of the New Company or to compare the same
with those of the Issuer or the previous substitute
under this Clause as applicable.
(B) Any such Trust Deed or undertaking shall, if so expressed, operate
to release the Issuer or the previous substitute as aforesaid from all
of its obligations qua principal debtor under these presents.
Not later than 14 days after the execution of such documents and com-
pliance with such requirements, the New Company shall give notice
thereof in a form previously approved by the Trustee to the Holders
in the manner provided in Condition 15. Upon the execution of such
documents and compliance with such requirements, the New Company
shall be deemed to be named in these presents as the principal debtor
in place of the Issuer (or in place of the previous substitute under
this Clause) under these presents and these presents shall be deemed to
be amended in such manner as shall be necessary to give effect to
the above provisions and, without limitation, references in these
presents to the Issuer shall, where the context so requires, be deemed
to be or include references to the New Company.
22. CURRENCY INDEMNITY
EACH of the Issuer and the Guarantor shall severally indemnify the
Trustee, every Appointee, the Holders and the Couponholders and keep
them indemnified against:
(a) any Liability incurred by any of them arising from the
non-payment by the Issuer or the Guarantor of any amount due
to the Trustee or the Holders or Couponholders under these
presents by reason of any variation in the rates of exchange
between those used for the purposes of calculating the amount
due under a judgment or order in respect thereof and those
prevailing at the date of actual payment by the Issuer or the
Guarantor; and
(b) any deficiency arising or resulting from any variation in
rates of exchange between (i) the date as of which the local
currency equivalent of the amounts due or contingently due
under these presents (other than this Clause) is calculated
for the purposes of any bankruptcy, insolvency or liquidation
of the Issuer or the Guarantor and (ii) the final date for
ascertaining the amount of claims in such bankruptcy,
insolvency or liquidation. The amount of such deficiency
shall be deemed not to be reduced by any variation in rates
of exchange occurring between the said final date and the date
of any distribution of assets in connection with any such
bankruptcy, insolvency or liquidation.
The above indemnities shall constitute obligations of the Issuer and
the Guarantor separate and independent from their obligations under the
other provisions of these presents and shall apply irrespective of any
indulgence granted by the Trustee or the Holders or the Couponholders
from time to time and shall continue in full force and effect
notwithstanding the judgment or filing of any proof or proofs in any
bankruptcy, insolvency or liquidation of the Issuer or the Guarantor
for a liquidated sum or sums in respect of amounts due under these
presents (other than this Clause). Any such deficiency as aforesaid
shall be deemed to constitute a loss suffered by the Holders and
Couponholders and no proof or evidence of any actual loss shall be
required by the Issuer or the Guarantor or their liquidator or
liquidators.
23. NEW TRUSTEE
(A) THE power to appoint a new trustee of these presents shall be vested
in the Issuer but no person shall be appointed who shall not previously
have been approved by an Extraordinary Resolution. One or more persons
may hold office as trustee or trustees of these presents but such
trustee or trustees shall be or include a Trust Corporation. Whenever
there shall be more than two trustees of these presents the majority
of such trustees shall be competent to execute and exercise all the
duties, powers, trusts, authorities and discretions vested in the
Trustee by these presents provided that a Trust Corporation shall be
included in such majority. Any appointment of a new trustee of these
presents shall as soon as practicable thereafter be notified by the
Issuer to the Principal Paying Agent, the Registrar, the Transfer
Agents and the Holders.
SEPARATE AND CO-TRUSTEES
(B) Notwithstanding the provisions of sub-clause (A) above, the Trustee
may, upon giving prior notice to the Issuer and the Guarantor (but
without the consent of the Issuer, the Guarantor, the Holders or the
Couponholders), appoint any person established or resident in any
jurisdiction (whether a Trust Corporation or not) to act either as a
separate trustee or as a co-trustee jointly with the Trustee:
(i) if the Trustee considers such appointment to be in the
interests of the Holders;
(ii) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction
or the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of these presents
against the Issuer and/or the Guarantor.
Each of the Issuer and the Guarantor irrevocably appoints the Trustee
to be its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the
provisions of these presents) have such trusts, powers, authorities and
discretions (not exceeding those conferred on the Trustee by these
presents) and such duties and obligations as shall be conferred or
imposed by the instrument of appointment. The Trustee shall have power
in like manner to remove any such person. Such reasonable remuneration
as the Trustee may pay to any such person, together with any
attributable Liabilities incurred by it in performing its function as
such separate trustee or co-trustee, shall for the purposes of these
presents be treated as Liabilities incurred by the Trustee.
24. TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of these presents may retire at any time on giving not less
than three months' prior written notice to the Issuer and the Guarantor
without giving any reason and without being responsible for any
Liabilities incurred by reason of such retirement. The Holders may by
Extraordinary Resolution remove any trustee or trustees for the time
being of these presents. The Issuer and the Guarantor undertake that in
the event of the only trustee of these presents which is a Trust
Corporation giving notice under this Clause or being removed by
Extraordinary Resolution they will use their best endeavours to procure
that a new trustee of these presents being a Trust Corporation is
appointed as soon as reasonably practicable thereafter. The retirement
or removal of any such trustee shall not become effective until a
successor trustee being a Trust Corporation is appointed and if, in
such circumstances no such appointment has become effective within two
months of such notice of retirement or Extraordinary Resolution, the
Trustee shall (with the prior written consent of the Issuer and the
Guarantor, such consent not be unreasonably withheld) be entitled to
appoint a trust corporation as Trustee and shall notify the Issuer and
the Guarantor of such appointment.
25. TRUSTEE'S POWERS TO BE ADDITIONAL
THE powers conferred upon the Trustee by these presents shall be in
addition to any powers which may from time to time be vested in the
Trustee by the general law or as a holder of any of the Securities or
Coupons.
26. NOTICES
ANY notice or demand to the Issuer, the Guarantor or the Trustee to be
given, made or served for any purposes under these presents shall be
given, made or served by sending the same by pre-paid post (first class
if inland, first class airmail if overseas), telex (if available) or
facsimile transmission or by delivering it by hand as follows:
to the Issuer: P.O. Box 309
George Town
Grand Cayman
Cayman Islands
(Attention: the Company Secretary)
Facsimile No. 001 345 949 8080
(Copy to the Guarantor)
to the Guarantor: Yorkshire Power Group Limited
Wetherby Road
Scarcroft
Leeds
LSI4 3HS
England
(Attention: the Company Secretary)
Telex No. 55128
Facsimile No. 0113 289 5926
to the Trustee: 1 Appold Street
Broadgate
London EC2A 2HE
England
(Attention: the Managing Director)
Telex No. 883341 BANTR-G
Facsimile No. 0171-982 1149
or to such other address, telex or facsimile number as shall have been
notified (in accordance with this Clause) to the other parties hereto
and any notice or demand sent by post as aforesaid shall be deemed to
have been given, made or served three days in the case of inland post
or seven days in the case of overseas post after despatch and any
notice or demand sent by telex or facsimile transmission as aforesaid
shall be deemed to have been given, made or served 24 hours after the
time of despatch provided that in the case of a notice or demand given
by telex or facsimile transmission such notice or demand shall
forthwith be confirmed by post. The failure of the addressee to receive
such confirmation shall not invalidate the relevant notice or demand
given by telex or facsimile transmission.
27. GOVERNING LAW
THESE presents are governed by, and shall be construed in accordance
with, English law.
28. SUBMISSION TO JURISDICTION
(A) THE Issuer irrevocably agrees for the benefit of the Trustee, the
Holders and the Couponholders that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with these presents and that accordingly any suit, action
or proceedings arising out of or in connection with these presents
(together referred to as "Proceedings") may be brought in the courts
of England. The Issuer irrevocably and unconditionally waives and
agrees not to raise any objection which it may have now or subsequently
to the laying of the venue of any Proceedings in the courts of England
and any claim that any Proceedings have been brought in an inconvenient
forum and further irrevocably and unconditionally agrees that a
judgment in any Proceedings brought in the courts of England shall be
conclusive and binding upon the Issuer and may be enforced in the
courts of any other jurisdiction. Nothing in this Clause shall limit
any right to take Proceedings against the Issuer in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one
or more jurisdictions preclude the taking of Proceedings in any
other jurisdiction, whether concurrently or not.
(B) The Issuer irrevocably and unconditionally appoints the Guarantor
(which appointment the Guarantor hereby accepts) at its registered
office for the time being and in the event of its ceasing so to act
will appoint such other person as the Trustee may approve and as the
Issuer may nominate in writing to the Trustee for the purpose to accept
service of process on its behalf in England in respect of any
Proceedings. The Issuer:
(i) agrees to procure that, so long as any of the Securities
remains liable to prescription, there shall be in force an
appointment of such a person approved by the Trustee with an
office in England with authority to accept service as
aforesaid;
(ii) agrees that failure by any such person to give notice of such
service of process to the Issuer shall not impair the validity
of such service or of any judgment based thereon;
(iii) consents to the service of process in respect of any
Proceedings by the airmailing of copies, postage prepaid, to
the Issuer in accordance with Clause 26; and
(iv) agrees that nothing in these presents shall affect the right
to serve process in any other manner permitted by law.
29. COUNTERPARTS
THIS Trust Deed and any Trust Deed supplemental hereto may be executed
and delivered in any number of counterparts, all of which, taken
together, shall constitute one and the same deed and any party to this
Trust Deed or any Trust Deed supplemental hereto may enter into the
same by executing and delivering a counterpart.
IN WITNESS whereof this Trust Deed has been executed as a deed by the Issuer,
the Guarantor and the Trustee and delivered on the date first stated above.
THE FIRST SCHEDULE
FORM OF ORIGINAL TEMPORARY GLOBAL BOND
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(Incorporated with limited liability under the laws of the Cayman Islands)
TEMPORARY GLOBAL BOND
representing
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS
DUE 2028
Unconditionally and irrevocably guaranteed
as to payment of principal and interest by
YORKSHIRE POWER GROUP LIMITED
(Incorporated in England as a private company with limited liability
under the Companies Act 1985 with registered number 3227432)
This Bond is a Temporary Global Bond without interest coupons in respect of a
duly authorised issue of Bonds of Yorkshire Power Finance Limited (the
"Issuer"), designated as specified in the title hereof (the "Bonds"), limited to
the aggregate principal amount of Two Hundred Million Pounds Sterling
((pound)200,000,000) and constituted by a Trust Deed dated 4th February, 1998
(the "Trust Deed") between the Issuer, Yorkshire Power Group Limited as
guarantor (the "Guarantor") and Bankers Trustee Company Limited as trustee (the
trustee for the time being thereof being herein called the "Trustee").
References herein to the Conditions (or to any particular numbered Condition)
shall be to the Conditions (or that particular one of them) set out in Part II
of the Second Schedule to the Trust Deed.
1. Promise to pay
Subject as provided in this Temporary Global Bond the Issuer promises
to pay to the bearer the principal amount of this Temporary Global Bond
(being at the date hereof Two Hundred Million Pounds Sterling
((pound)200,000,000)) on 4th February, 2028 (or on such earlier date as
the said principal amount may become repayable in accordance with the
Conditions or the Trust Deed) and to pay interest annually in arrear on
4th August on the principal amount from time to time of this Temporary
Global Bond at the rate of 7.25 per cent. per annum, the first such
payment to be made on 4th August, 1998 in respect of the period from
(and including) 4th February, 1998 to (but excluding) 4th August, 1998.
together with such other amounts (if any) as may be payable, all
subject to and in accordance with the Conditions and the provisions of
the Trust Deed.
2. Exchange for Permanent Global Bond and purchases
This Temporary Global Bond is exchangeable in whole or in part upon the
request of the bearer for a further global bond in respect of
(pound)200,000,000 aggregate principal amount or Bonds (the "Permanent
Global Bond") only on and subject to the terms and condition set out
below.
On and after 16th March, 1998 this Temporary Global Bond may be
exchanged in whole or in part at the specified office of the Principal
Paying Agent (or such other place as the Trustee may agree) for the
Permanent Global Bond and the Issuer shall procure that the Principal
Paying Agent shall issue and deliver, in full or partial exchange for
this Temporary Global Bond, the Permanent Global Bond (or, as the case
may be, endorse the Permanent Global Bond) in an aggregate principal
amount equal to the principal amount of this Temporary Global Bond
submitted for exchange Provided that if Definitive Bonds (together with
the Coupons appertaining thereto) have already been issued in exchange
for all the Bonds represented for the time being by the Permanent
Global Bond, then this Temporary Global Bond may thereafter be
exchanged only for Definitive Bonds (together with the Coupons
appertaining thereto) and in such circumstances references herein to
the Permanent Global Bond shall be construed accordingly and Provided
further that the Permanent Global Bond shall be issued and delivered
(or, as the case may be, endorsed) only if and to the extent that there
shall have been presented to the Issuer a certificate from Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System ("Euroclear") or from Cedel Bank societe anonyme
("Cedel Bank") substantially in the form of the certificate attached as
Exhibit A.
Any person who would, but for the provisions of this Temporary Global
Bond, the Permanent Global Bond and the Trust Deed, otherwise be
entitled to receive a Definitive Bond or Definitive Bonds shall not be
entitled to require the exchange of an appropriate part of this
Temporary Global Bond for a like part of the Permanent Global Bond
unless and until he shall have delivered or caused to be delivered to
Euroclear or Cedel Bank a certificate substantially in the form of the
certificate attached as Exhibit B (copies of which form of certificate
will be available at the offices of Euroclear in Brussels and Cedel
Bank in Luxembourg and the specified office of each of the Paying
Agents).
Upon (i) any exchange of a part of this Temporary Global Bond for a
like part of the Permanent Global Bond or (ii) the purchase by or on
behalf of the Issuer, the Guarantor or any other Subsidiary of the
Guarantor and cancellation of a part of this Temporary Global Bond in
accordance with the Conditions, the portion of the principal amount
hereof so exchanged or so purchased and cancelled shall be endorsed by
or on behalf of the Principal Paying Agent on behalf of the Issuer on
Part II of the Schedule hereto, whereupon the principal amount hereof
shall be reduced for all purposes by the amount so exchanged or so
purchased and cancelled and endorsed.
3. Payments
Until the entire principal amount of this Temporary Global Bond has
been extinguished, this Temporary Global Bond shall in all respects be
entitled to the same benefits as the Definitive Bonds and shall be
entitled to the benefit of and be bound by the Trust Deed. except that
the holder of this Temporary Global Bond shall not (unless upon due
presentation of this Temporary Global Bond for exchange. issue and
delivery (or, as the case may be. endorsement) of the Permanent Global
Bond is improperly withheld or refused and such withholding or refusal
is continuing at the relevant payment date) be entitled (i) subject to
(ii) below to receive any payment of interest on this Temporary Global
Bond except upon certification as hereinafter provided or (ii) on and
after the Exchange Date, to receive any payment on the Permanent Global
Bond. Upon any payment of principal or interest on this Temporary
Global Bond the amount so paid shall be endorsed by or on behalf of the
Principal Paying Agent on behalf of the Issuer on Part I of the
Schedule hereto.
Payments of interest in respect of Bonds for the time being represented
by this Temporary Global Bond shall be made to the bearer only upon
presentation to the Issuer or its agent of a certificate from Euroclear
or from Cedel Bank substantially in the form of the certificate
attached as Exhibit A. Any person who would, but for the provisions of
this Temporary Global Bond and of the Trust Deed, otherwise be
beneficially entitled to a payment of interest on this Temporary Global
Bond shall not be entitled to require such payment unless and until he
shall have delivered or caused to be delivered to Euroclear or Cedel
Bank a certificate substantially in the form of the certificate
attached as Exhibit B (copies of which form of certificate will be
available at the offices of Euroclear in Brussels and Cedel Bank in
Luxembourg and the specified office of each of the Paying Agents).
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Temporary Global
Bond shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the bearer of this
Temporary Global Bond shall be valid and, to the extent of the sums so
paid, effectual to satisfy and discharge the liability for the moneys
payable hereon, on the Permanent Global Bond and on the relevant
Definitive Bonds and Coupons.
4. Accountholders
For so long as all of the Bonds are represented by one or both of the
Permanent Global Bond and this Temporary Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, each
person who is for the time being shown in the records of Euroclear or
Cedel Bank as the holder of a particular principal amount of such Bonds
(each an "Accountholder") (in which regard any certificate or other
document issued by Euroclear or Cedel Bank as to the principal amount
of such Bonds standing to the account of any person shall be conclusive
and binding for all purposes) shall be treated as the holder of such
principal amount of such Bonds for all purposes (including for the
purposes of any quorum requirements of, or the right to demand a poll
at, meetings of the Bondholders) other than with respect to the payment
of principal and interest on such Bonds, the right to which shall be
vested, as against the Issuer, the Guarantor and the Trustee, solely in
the bearer of the relevant Global Bond in accordance with and subject
to its terms and the terms of the Trust Deed. Each Accountholder must
look solely to Euroclear or Cedel Bank, as the case may be, for its
share of each payment made to the bearer of the relevant Global Bond.
5. Notices
For so long as all of the Bonds are represented by one or both of the
Permanent Global Bond and this Temporary Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank. notices
to Bondholders may be given by delivery of the relevant notice to
Euroclear and/or Cedel Bank (as the case may be) for communication to
the relative Accountholders rather than by publication as required by
Condition 15 provided that, so long as the Bonds are listed on the
Luxembourg Stock Exchange, the Luxemboure Stock Exchange so agrees. Any
such notice shall be deemed to have been given to the Bondholders on
the seventh day after the day on which such notice is delivered to
Euroclear and/or Cedel Bank (as the case may be) as aforesaid.
6. Prescription
Claims against the Issuer and the Guarantor in respect of principal and
interest on the Bonds represented by the Permanent Global Bond or this
Temporary Global Bond will be prescribed after ten years (in the case
of principal) and five years (in the case of interest) from the
Relevant Date (as defined in Condition 9).
7. Call Option
For so long as all of the Bonds are represented by one or both of the
Permanent Global Bond and/or this Temporary Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, no
drawing of Bonds will be required under Condition 7(b) in the event
that the Issuer exercises its call option pursuant to Condition 7(b) in
respect of less than the aggregate principal amount of the Bonds
outstanding at such time. In such event, the standard procedures of
Euroclear and/or Cedel Bank shall operate to determine which interests
in the Global Bond(s) are to be subject to such option.
8. Put Option
For so long as all of the Bonds are represented by one or both of the
Permanent Global Bond and/or this Temporary Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, the
option of the Bondholders provided for in Condition 8 may be exercised
by the Accountholders giving a duly completed redemption notice in the
form obtainable from any of the Paying Agents to the Principal Paying
Agent of the principal amount of the Bonds in respect of which such
option is exercised and at the same time presenting or procuring the
presentation of this Temporary Global Bond to the Principal Paying
Agent for notation accordingly within the time limits set forth in that
Condition. Whilst all of the Bonds are represented by one or both of
the Permanent Global Bond and this Temporary Global Bond and such
Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank,
redemption notices shall be given in accordance with the standard
procedures of Euroclear and/or Cedel Bank.
9. Euroclear and Cedel Bank
References herein to Euroclear and/or Cedel Bank shall be deemed to
include references to any other clearing system approved by the
Trustee.
10. Authentication
This Temporary Global Bond shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
11. Governing law
This Temporary Global Bond is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Issuer has caused this Temporary Global Bond to be signed
manually by a person duly authorised on its behalf.
YORKSHIRE POWER FINANCE LIMITED
By: ____________________________
Duly authorised
Issued in London, England on 4th February, 1998.
Certificate of authentication
This Temporary Global Bond is duly authenticated (without recourse, warranty or
liability).
Duly authorised
for and on behalf of
Union Bank of Switzerland
as Principal Paying Agent
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this Temporary Global Bond have been made:
Date Interest Principal Remaining principal Notation
made paid paid amount of this made on
Temporary Global behalf of
Bond following the Issuer
such payment
(pound) (pound) (pound)
PART II
EXCHANGES FOR PERMANENT GLOBAL BOND AND
PURCHASES AND CANCELLATIONS
The following exchanges of a part of this Temporary Global Bond for a like part
of the Permanent Global Bond and/or purchases and cancellations of a part of
this Temporary Global Bond have been made:
Date Part of principal Part of Aggregate principal Notation
made amount of this principal amount of this made on
Temporary amount of this Temporary behalf of
Global Bond Temporary Global Bond the Issuer
exchanged for Global Bond following such
a like part of purchased and exchange or purchase
the Permanent cancelled and cancellation
Global Bond
(pound) (pound) (pound)
EXHIBIT A
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000
7.25 per cent. Guaranteed Bonds due 2028
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Trust Deed, as of the date hereof, (pound)[ ] principal amount
of the above-captioned Securities (i) is owned by persons that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of Securities set forth above
that, except as set forth below, we have received in writing, by tested telex or
by electronic transmission, from our Member Organisations entitled to a portion
of such principal amount, certifications with respect to such portion,
substantially to the effect set forth in the Trust Deed.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
*Dated
[Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System] [Cedel Bank, societe anonyme]
By ______________________
Authorised Signatory
* To be dated no earlier than the date to which this certification
relates, namely (a) the payment date or (b) the date set for the
exchange of the Temporary Global Bond for the Permanent Global Bond.
EXHIBIT B
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000
7.25 per cent. Guaranteed Bonds due 2028
(the "Securities")
This is to certify that as of the date hereof. and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that (a)
are foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165 (j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
l.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is further to certify
that such financial institution has not acquired the Securities for the purposes
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act"), then this
is also to certify that, except as set forth below (i) in the case of debt
securities, the Securities are beneficially owned by (a) non-U.S. person(s) or
(b) U.S. person(s) who purchased the Securities in transactions which did not
require registration under the Act; or (ii) in the case of equity securities,
the Securities are owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S. person(s)) or (y)
U.S. person(s) who purchased the Securities in a transaction which did not
require registration under the Act. If this certification is being delivered in
connection with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to (pound)[ ] of such interest
in the above Securities in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Securities (or, if
relevant, exercise off any rights or collection of any interest) cannot be made
until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
*Dated
By _______________________
[Name of person giving certification]
(As, or as agent for, the beneficial
owner(s) of those of the Securities
to which this certification relates)
* To be dated no earlier than the fifteenth day before the date to which
this certification relates, namely (a) the payment date or (b) the date
set for the exchange of the Temporary Global Bond for the Permanent
Global Bond.
FORM OF ORIGINAL PERMANENT GLOBAL BOND
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS l65(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(Incorporated with limited liability under the laws of
the Cayman Islands)
PERMANENT GLOBAL BOND
representing up to
(pound)200,000,000 7.25 PER CENT. GUARANTEED
BONDS DUE 2028
Unconditionally and irrevocably guaranteed
as to payment of principal and interest by
YORKSHIRE POWER GROUP LIMITED
(Incorporated in England as a private company with limited liability
under the Companies Act 1985 with registered number 3227432)
This Bond is a Permanent Global Bond without interest coupons in respect of a
duly authorised issue of Bonds of Yorkshire Power Finance Limited (the
"issuer"), designated as specified in the title hereof (the "Bonds"), limited to
the aggregate principal amount of up to Two Hundred Million Pounds Sterling
((pound)200,000,000) and constituted by a Trust Deed dated 4th February, 1998
(the "Trust Deed') between the Issuer, Yorkshire Power Group Limited as
guarantor (the "Guarantor") and Bankers Trustee Company Limited as trustee (the
trustee for the time being thereof being herein called the "Trustee").
References herein to the Conditions (or to any particular numbered Condition)
shall be to the Conditions (or that particular one of them) set out in Part II
of the Second Schedule to the Trust Deed. The aggregate principal amount from
time to time of this Permanent Global Bond shall be that amount not exceeding
(pound)200,000,000 as shall be shown by the latest entry duly made in the
Schedule hereto.
1. Promise to pay
Subject as provided in this Permanent Global Bond the Issuer promises
to pay to the bearer the principal amount of this Permanent Global Bond
on 4th August, 2028 (or on such earlier date as the said principal
amount may become repayable in accordance with the Conditions or the
Trust Deed) and to pay interest annually in arrear on 4th August on the
principal amount from time to time of this Permanent Global Bond at the
rate of 7.25 per cent. per annum, the first such payment to be made on
4th August, 1998 in respect of the period from (and including) 4th
February, 1998 to (but excluding) 4th August, 1998, together with such
other amounts (if any) as may be payable, all subject to and in
accordance with the Conditions and the provisions of the Trust Deed.
2. Exchange for definitive Bonds and purchases
This Permanent Global Bond will be exchangeable in whole but not in
part (free of charge to the holder) for definitive Bonds only (i) upon
the happening of any of the events defined in the Trust Deed as "Events
of Default", (ii) if either Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") or
Cedel Bank. societe anonyme ("Cedel Bank") is closed for business for a
continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) or announces an intention permanently to cease
business or does in fact do so and no alternative clearing system
satisfactory to the Trustee is available, (iii) if as a result of any
such change or amendment as is referred to in Condition 7(c) which
becomes effective on or after 13th January, 1998, the Issuer or the
Guarantor or any Paying Agent is or will be required to make any
withholding or deduction from any payment in respect of the Bonds which
would not be required if the Bonds were in definitive form and a
certificate to such effect signed by two Directors of the Issuer is
given to the Trustee or (iv) upon the holder of this Permanent Global
Bond (acting on the instructions of (an) Accountholder(s) (as defined
below)) giving written notice to the Issuer requesting such exchange.
Thereupon (in the case of (i) and (ii) above) the holder of this
Permanent Global Bond (acting on the instructions of (an)
Accountholder(s)) may give notice to the Issuer, and (in the case of
(iii) above) the Issuer may give notice to the Trustee and the
Bondholders, of its intention to exchange this Permanent Global Bond
for definitive Bonds on or after the Exchange Date (as defined below).
On or after the Exchange Date the holder of this Permanent Global Bond
may or, in the case of (iii) above, shall surrender this Permanent
Global Bond to or to the order of the Principal Paying Agent. In
exchange for this Permanent Global. Bond the Issuer will deliver, or
procure the delivery of, definitive Bonds in bearer form, serially
numbered, in the denominations of (pound)1,000, (pound)10,000 and
(pound)100,000 each with interest coupons and one talon ("Coupons")
attached on issue in respect of interest which has not already been
paid on this Permanent Global Bond (in exchange for the whole of this
Permanent Global Bond).
"Exchange Date" means a day specified in the notice requiring exchange
falling not less than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Principal Paying Agent is located and in the
city in which the relevant clearing system is located.
Upon (i) any exchange of a part of the Temporary Global Bond for a part
of this Permanent Global Bond or (ii) the purchase by or on behalf of
the Issuer, the Guarantor or any other Subsidiary of the Guarantor and
cancellation of a part of this Permanent Global Bond in accordance with
the Conditions, the portion of the principal amount hereof so exchanged
or so purchased and cancelled shall be endorsed by or on behalf of the
Principal Paying Agent on behalf of the Issuer on Part II of the
Schedule hereto, whereupon the principal amount hereof shall be
increased or, as the case may be, reduced for all purposes by the
amount so exchanged or so purchased and cancelled and endorsed. Upon
the exchange of the whole of this Permanent Global Bond for definitive
Bonds this Permanent Global Bond shall be surrendered to or to the
order of the Principal Paying Agent and cancelled and, if the holder of
this Permanent Global Bond requests, returned to it together with any
relevant definitive Bonds.
3. Accountholders
For so long as all of the Bonds are represented by one or both of the
Temporary Global Bond and this Permanent Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, each
person who is for the time being shown in the records of Euroclear or
Cedel Bank as the holder of a particular principal amount of such Bonds
(each an "Accountholder") (in which regard any certificate or other
document issued by Euroclear or Cedel Bank as to the principal amount
of such Bonds standing to the account of any person shall be conclusive
and binding for all purposes) shall be treated as the holder of such
principal amount of such Bonds for all purposes (including for the
purposes of any quorum requirements of, or the right to demand a poll
at, meetings of the Bondholders) other than with respect to the payment
of principal and interest on such Bonds, the right to which shall be
vested, as against the Issuer, the Guarantor and the Trustee, solely in
the bearer of the relevant Global Bond in accordance with and subject
to its terms and the terms of the Trust Deed. Each Accountholder must
look solely to Euroclear or Cedel Bank, as the case may be, for its
share of each payment made to the bearer of the relevant Global Bond.
4. Payments
Until the entire principal amount of this Permanent Global Bond has
been extinguished, this Permanent Global Bond shall (subject as
hereinafter and in the Trust Deed provided) in all respects be entitled
to the same benefits as the definitive Bonds and shall be entitled to
the benefit of and be bound by the Trust Deed. Payments of principal
and interest in respect of Bonds represented by this Permanent Global
Bond will be made against presentation for endorsement and, if no
further payment falls to be made in respect of the Bonds, surrender of
this Permanent Global Bond to the order of the Principal Paying Agent
or such other Paying Agent as shall have been notified to the
Bondholders for such purposes. Upon any payment of principal or
interest on this Permanent Global Bond the amount so paid shall be
endorsed by or on behalf of the Principal Paying Agent on behalf of the
Issuer on Part I of the Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Permanent Gl6bal
Bond shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the bearer of this
Permanent Global Bond shall be valid and, to the extent of the sums so
paid, effectual to satisfy and discharge the liability for the moneys
payable hereon and on the relevant definitive Bonds and Coupons.
5. Notices
For so long as all of the Bonds are represented by one or both of the
Temporary Global Bond and this Permanent Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, notices
to Bondholders may be given by delivery of the relevant notice to
Euroclear and/or Cedel Bank (as the case may be) for communication to
the relative Accountholders rather than by publication as required by
Condition 15 provided that, so long as the Bonds are listed on the
Luxembourg Stock Exchange, the Luxembourg Stock Exchange so agrees. Any
such notice shall be deemed to have been given to the Bondholders on
the seventh day after the day on which such notice is delivered to
Euroclear and/or Cedel Bank (as the case may be) as aforesaid.
6. Prescription
Claims against the Issuer and the Guarantor in respect of principal and
interest on the Bonds represented by the Temporary Global Bond or this
Permanent Global Bond will be prescribed after ten years (in the case
of principal) and five years (in the case of interest) from the
Relevant Date (as defined in Condition 9).
7. Call Option
For so long as all of the Bonds are represented by one or both of the
Temporary Global Bond and/or this Permanent Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, no
drawing of Bonds will be required under Condition 7(b) in the event
that the Issuer exercises its call option pursuant to Condition 7(b) in
respect of less than the aggregate principal amount of the Bonds
outstanding at such time. In such event, the standard procedures of
Euroclear and/or Cedel Bank shall operate to determine which interests
in the Global Bond(s) are to be subject to such option.
8. Put Option
For so long as all of the Bonds are represented by one or both of the
Temporary Global Bond and this Permanent Global Bond and such Global
Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank, the
option of the Bondholders provided for in Condition 8 may be exercised
by the Accountholders giving a duly completed redemption notice in the
form obtainable from any of the Paying Agents to the Principal Paying
Agent of the principal amount of the Bonds in respect of which such
option is exercised and at the same time presenting or procuring the
presentation of this Permanent Global Bond to the Principal Paying
Agent for notation accordingly within the time limits set forth in that
Condition. Whilst all of the Bonds are represented by one or both of
the Temporary Global Bond and this Permanent Global Bond and such
Global Bond(s) is/are held on behalf of Euroclear and/or Cedel Bank,
redemption notices shall be given in accordance with the standard
procedures of Euroclear and/or Cedel Bank.
9. Euroclear and Cedel Bank
References herein to Euroclear and/or Cedel Bank shall be deemed to
include references to any other clearing system approved by the
Trustee.
10 Authentication
This Permanent Global Bond shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
11. Governing law
This Permanent Global Bond is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Issuer has caused this Permanent Global Bond to be signed
manually or in facsimile by a person duly authorised on its behalf.
YORKSHIRE POWER FINANCE LIMITED
By: ________________________
(Duly authorised)
Issued in London, England on 4th February, 1998.
Certificate of authentication
This Permanent Global Bond is duly authenticated
without recourse, warranty or liability.
Duly authorised
for and on behalf of
Union Bank of Switzerland
as Principal Paying Agent
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this Permanent Global Bond have been made:
Date Interest Principal Remaining principal Notation made on
made paid paid amount of this behalf of the Issuer
Permanent Global Bond
following such payment
(pound) (pound) (pound)
PART II
EXCHANGES OF THE TEMPORARY GLOBAL BOND FOR THIS
PERMANENT GLOBAL BOND AND
PURCHASES AND CANCELLATIONS
The following exchanges of a part of the Temporary Global Bond for a like part
of this Permanent Global Bond and purchases and cancellations of a part of this
Permanent Global Bond have been made:
Date Part of principal Part of principal Aggregate Notation made
made amount of the amount of this principal on behalf of
Temporary Global Permanent Global amount of this the Issuer
Bond exchanged Bond purchased Permanent Global
for a like part cancelled Bond following
of this Permanent such purchase
Global Bond and cancellation
(pound) (pound) (pound)
THE SECOND SCHEDULE
Part I
- FORM OF ORIGINAL BOND -
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
(pound)[1,000] [10,0001 [100,000] XS0083707884 [SERIES] [Serial No.]
YORKSHIRE POWER FINANCE LIMITED
(Incorporated with limited liability under the laws of the Cayman Islands)
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS
DUE 2028
Unconditionally and irrevocably guaranteed as to
payment of principal and interest by
YORKSHIRE POWER GROUP LIMITED
(Incorporated in England as a private company with limited liability
under the Companies Act 1985 with registered number 3227432)
The issue of the Bonds was authorised by resolutions of the Board of Directors
of Yorkshire Power Finance Limited (the "Issuer") passed on 5th January, 1998
and by resolutions of a duly authorised Committee of the Board of Directors of
the Issuer passed on 22nd January, 1998 and the giving of the guarantee in
respect of the Bonds was authorised by a resolution of the Board of Directors of
Yorkshire Power Group Limited (the "Guarantor") passed on 2nd December, 1997.
This Bond forms one of a series of Bonds constituted by a Trust Deed (the "Trust
Deed") dated 4th February, 1998 made between the Issuer, the Guarantor and
Bankers Trustee Company Limited as trustee for the holders of the Bonds and
issued as bearer bonds in the denominations of (pound)1,000. (pound)10,000 and
(pound)100,000 each with Coupons and one Talon attached in an aggregate
principal amount of (pound)200,000,000.
The Issuer for value received and subject to and in accordance with the
Conditions endorsed hereon hereby promises to pay to the bearer on 4th August.
2028 (or on such earlier date as the principal sum hereunder mentioned may
become repayable in accordance with the said Conditions) the principal sum of:
(pound)[l,000] [l0.000] [100,000] ([One] [Ten] [One Hundred] Thousand Pounds
Sterling)
together with interest on the said principal sum at the rate of 7.25 per cent.
per annum payable annually in arrear on 4th August, the first such payment to be
made on 4th August, 1998 in respect of the period from (and including) 4th
February, 1998 to (but excluding) 4th August, 1998, and together with such other
amounts (if any) as may be payable, all subject to and in accordance with the
said Conditions and the provisions of the Trust Deed.
Neither this Bond nor the Coupons and Talon appertaining hereto shall be or
become valid or obligatory for any purpose unless and until this Bond has been
authenticated by or on behalf of the principal Paying Agent.
IN WITNESS whereof this Bond has been executed on behalf of the Issuer.
YORKSHIRE POWER FINANCE LIMITED
By: ________________________
Director
Dated as of 4th February, 1998.
Issued in London, England.
Certificate of authentication
This Bond is duly authenticated (without recourse, warranty or liability).
- --------------------
Duly authorised
for and on behalf of
Union Bank of Switzerland
as Principal Paying Agent
- FORM OF ORIGINAL COUPON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS
DUE 2028
Coupon appertaining to a Bond in the denomination of (pound)[1,000] [10,000]
[100,000].
This Coupon is separately negotiable, [Coupon for
payable to bearer, and subject to the (pound)[36.25] [362.50] [3,625.00]
Conditions of the said Bonds due on
4th August, 1998]/
[Coupon for
(pound)[72.50] [725.00] [7,250.00] due
on 4th August, [1999/20[ ]]
[No.] (pound)[1,000] [10,000] [100,000] XS0083707884 [Series] [Serial No.]
- FORM OF ORIGINAL TALON -
On the front:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
YORKSHIRE POWER FINANCE LIMITED
(pound)200,000,000 7.25 PER CENT. GUARANTEED BONDS DUE 2028
Talon appertaining to a Bond in the denomination of(pound)[l,000] [10,000]
[100,000]
On and after 4th August, [2008/2018] [ten/eleven] further Coupons [and a further
Talon] will be issued at the specified office of any of the Paying Agents set
out on the reverse hereof (and/or any other or further Paying Agents and/or
specified offices as may from time to time be duly appointed and notified to the
Bondholders) upon production and surrender of this Talon.
[No.] (pound)[l,000] [10,000] [100,000] XS0083707884 [Series] [Serial No.]
On the back of the Original Coupons and the Original Talons:
PRINCIPAL PAYING AGENT
Union Bank of Switzerland
100 Liverpool Street
London EC2M 2RH
PAYING AGENT
Banque Generale du Luxembourg S.A.
50 Avenue J.F. Kennedy
L-2951 Luxembourg
THE THIRD SCHEDULE
REGISTER AND TRANSFER OF REGISTERED SECURITIES
1. The Issuer shall at all times ensure that the Registrar maintains in
London, or at such other place as the Trustee may agree, a register
showing the amount of the Registered Securities from time to time
outstanding and the dates of issue and all subsequent transfers and
changes of ownership thereof and the names and addresses of the holders
of the Registered Securities. The Trustee and the holders of the
Registered Securities or any of them and any person authorised by it or
any of them may at all reasonable times during office hours inspect the
register and take copies of or extracts from it. The register may be
closed by the Issuer for such periods at such times (not exceeding in
total 30 days in any one year) as it may think fit.
2. Each Registered Security shall have an identifying certificate number
which shall be entered on the register.
3. The Registered Securities are transferable by execution of the form of
transfer endorsed thereon under the hand of the transferor or, where
the transferor is a corporation, under its common seal or under the
hand of two of its officers duly authorised in writing. In each case
the signature(s) must be guaranteed by a commercial bank with a
correspondent bank in New York City, Luxembourg or London or by an
institution which is a member of The New York Stock Exchange or The
American Stock Exchange in New York City or the Luxembourg Stock
Exchange or The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited.
4. The Registered Securities to be transferred must be delivered for
registration to the specified office of the Registrar or any Transfer
Agent with the form of transfer endorsed thereon duly completed and
executed and must be accompanied by such documents, evidence and
information as may be required pursuant to the Conditions and such
other evidence as the Issuer may reasonably require to prove the title
of the transferor or his right to transfer the Registered Securities
and, if the form of transfer is executed by some other person on his
behalf or in the case of the execution of a form of transfer on behalf
of a corporation by its officers, the authority of that person or those
persons to do so.
5. The executors or administrators of a deceased holder of Registered
Securities (not being one of several joint holders) and in the case of
the death of one or more of several joint holders the survivor or
survivors of such joint holders shall be the only person or persons
recognised by the Issuer as having any title to such Registered
Securities.
6. Any person becoming entitled to Registered Securities in consequence of
the death or bankruptcy of the holder of such Registered Securities may
upon producing such evidence that he holds the position in respect of
which he proposes to act under this paragraph or of his title as the
Issuer shall require be registered himself as the holder of such
Registered Securities or, subject to the preceding paragraphs as to
transfer, may transfer such Registered Securities. The Issuer shall be
at liberty to retain any amount payable upon the Registered Securities
to which any person is so entitled until such person shall be
registered as aforesaid or shall duly transfer the Registered
Securities.
7. Unless otherwise requested by him, the holder of Registered Securities
of any series shall be entitled to receive only one Registered Security
in respect of his entire holding of such series.
8. The joint holders of Registered Securities of any series shall be
entitled to one Registered Security only in respect of their joint
holding of such series which shall, except where they otherwise direct,
be delivered to the joint holder whose name appears first in the
register of the holders of Registered Securities in respect of such
joint holding.
9. Where a holder of Registered Securities has transferred part only of
his holding of any series there shall be delivered to him without
charge a Registered Security in respect of the balance of such holding.
10. The Issuer shall make no charge to the Holders for the registration of
any holding of Registered Securities or any transfer thereof or for the
issue thereof or for the delivery thereof at the specified office of
the Registrar or of any Transfer Agent or by post to the address
specified by the Holder. if any Holder entitled to receive a Registered
Security wishes to have the same delivered to him otherwise than at the
specified office of the Registrar or of any Transfer Agent, such
delivery shall be made, upon his written request to the Registrar or
such Transfer Agent, at his risk and (except where sent by post to the
address specified by the Holder) at his expense.
11. The holder of a Registered Security may (to the fullest extent
permitted by applicable laws) be treated at all times, by all persons
and for all purposes as the absolute owner of such Registered
Security notwithstanding any notice any person may have of the right,
title, interest or claim of any other person thereto. The Issuer,
the Guarantor and the Trustee shall not be bound to see to the execu-
tion of any trust to which any Registered Security may be subject
and no notice of any trust shall be entered on the register. The
holder of a Registered Security will be recognised by the Issuer
and the Guarantor as entitled to his Registered Security free from
any equity, set-off or counterclaim on the part of the issuer or the
Guarantor against the original or any intermediate holder of such
Registered Security.
THE FOURTH SCHEDULE
PROVISIONS FOR MEETINGS OF HOLDERS
1. (A) As used in this Schedule the following expressions shall
have the following meanings unless the context otherwise
requires:
(i) "voting certificate" shall mean an English language
certificate issued by a Paying Agent and dated in
which it is stated:
(a) that on the date thereof Bearer Securities
(not being Bearer Securities in respect of
-which a block voting instruction has been
issued and is outstanding in respect of the
meeting specified in such voting certificate
or any adjourned such meeting) were
deposited with such Paying Agent or (to the
satisfaction of such Paying Agent) were held
to its order or under its control and that
no such Bearer Securities will cease to be
so deposited or held until the first to
occur of:
(1) the conclusion of the meeting
specified in such certificate or, if
later, of any adjourned such
meeting; and
(2) the surrender of the certificate to
the Paying Agent who issued the
same; and
(b) that the bearer thereof is entitled to
attend and vote at such meeting and any
adjourned such meeting in respect of the
Bearer Securities represented by such
certificate;
(ii) "block voting instruction" shall mean an English
language document issued by a Paying Agent and dated
in which:
(a) it is certified that Bearer Securities (not
being Bearer Securities in respect of which
a voting certificate has been issued and is
outstanding in respect of the meeting
specified in such block voting instruction
and any adjourned such meeting) have been
deposited with such Paying Agent or (to the
satisfaction of such Paying Agent) were held
to its order or under its control and that
no such Bearer Securities will cease to be
so deposited or held until the first to
occur of:
(1) the conclusion of the meeting
specified in such document or, if
later, of any adjourned such
meeting; and
(2) the surrender to the Paying Agent
not less than 48 hours before the
time for which such meeting or any
adjourned such meeting is convened
of the receipt issued by such Paying
Agent in respect of each such
deposited Bearer Security which is
to be released or (as the case may
require) the Bearer Security or
Bearer Securities ceasing with the
agreement of the Paving Agent to be
held to its order or under its
control and the giving of notice by
the Paying Agent to the Issuer in
accordance with paragraph 17 hereof
of the necessary amendment to the
block voting instruction:
(b) it is certified that each holder of such
Bearer Securities has instructed such
Paying Agent that the vote(s) attributable
to the Bearer Security or Bearer Securities
so deposited or held should be cast in a
particular way in relation to the resolution
or resolutions to be put to such meeting or
any adjourned such meeting and that all such
instructions are during the period
commencing 48 hours prior to the time for
which such meeting or any adjourned such
meeting is convened and ending at the con-
clusion or adjournment thereof neither
revocable nor capable of amendment;
(c) the aggregate principal amount of the Bearer
Securities so deposited or held are listed
distinguishing with regard to each such
resolution between those, in respect of
which instructions have been given as
aforesaid that the votes attributable
thereto should be cast in favour of the
resolution and those in respect of which
instructions have been so given that the
votes attributable thereto should be cast
against the resolution; and
(d) one or more persons named in such document
(each hereinafter called a "proxy") is or
are authorised and instructed by such Paying
Agent to cast the votes attributable to the
Bearer Securities so listed in accordance
with the instructions referred to in (c)
above as set out in such document;
(iii) "24 hours" shall mean a period of 24 hours including
all or part of a day upon which banks are open for
business in both the place where the relevant meeting
is to be held and in each of the places where the
Paying Agents have their specified offices
(disregarding for this purpose the day upon which
such meeting is to be held) and such period shall be
extended by one period or, to the extent necessary,
more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are
open for business in all of the places as aforesaid;
and
(iv) "48 hours" shall mean a period of 48 hours including
all or part of two days upon which banks are open for
business both in the place where the relevant meeting
is to be held and in each of the places where the
Paying Agents have their specified offices
(disregarding for this purpose the day upon which
such meeting is to be held) and such period shall be
extended by one period or, to the extent necessary,
more periods of 24 hours until there is included as
aforesaid all or part of two days upon which banks
are open for business in all of the places as
aforesaid.
(B) A holder of a Bearer Security may obtain a voting certificate
in respect of such Bearer Security from a Paying Agent or
require a Paying Agent to issue a block voting instruction
in respect of such Bearer Security by depositing such
Bearer Security with such Paying Agent or (to the satis-
faction of such Paying Agent by such Bearer Security
being held to its order or under its control, in each case not
less than 48 hours before the time fixed for the relevant
meeting and on the terms set out in sub-paragraph (i)(a) or
(ii)(a) above (as the case may be), and (in the case of a
block voting instruction) instructing such Paying Agent
to the effect set out in sub-paragraph (ii)(b) above.
The holder of any voting certificate or the proxies named in
any block voting instruction shall for all purposes in
connection with the relevant meeting or adjourned meeting
of Holders be deemed to be the holder of the Bearer
Securities to which such voting certificate or block voting
instruction relates and the Paying Agent with which such
Bearer Securities have been deposited or the person holding
the same to the order or under the control of such Paying
Agent shall be deemed for such purposes not to be the holder
of those Bearer Securities.
(C) (i) A holder of Registered Securities may, by an
instrument in writing in the English language (a
"form of proxy") signed by the holder or, in the case
of a corporation. executed under its common seal or
signed on its behalf by an attorney or a duly
authorised officer of the corporation and delivered
to the specified office of the Registrar not less
than 48 hours before the time fixed for the relevant
meeting, appoint any person (a "proxy") to act on his
or its behalf in connection with any meeting of the
Holders and any adjourned such meeting.
(ii) Any holder of Registered Securities which is a
corporation may by resolution of its directors or
other governing body authorise any person to act as
its representative (a "representative") in connection
with any meeting of the Holders and any adjourned
such meeting.
(iii) Any proxy appointed pursuant to sub-paragraph (i)
above or representative appointed pursuant to
sub-paragraph (ii) above shall so long as such
appointment remains in force be deemed, for all
purposes in connection with the relevant meeting or
adjourned meeting of the Holders, to be the holder of
the Registered Securities to which such appointment
relates and the holder of the Registered Securities
shall be deemed for such purposes not to be the
holder.
2. The Issuer, the Guarantor or the Trustee may at any time and the Issuer
shall upon a requisition in writing signed by the holders of not less
than one-tenth in principal amount of the Securities of any series for
the time being outstanding convene a meeting of the Holders and if the
Issuer makes default for a period of seven days in convening such a
meeting the same may be convened by the Trustee or the requisitionists.
Every such meeting shall be held at such time and place as the Trustee
may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice
is given and the day on which the meeting is to be held) specifying
the place, day and hour of meeting shall be given to the Holders prior
to any meeting of the Holders in the manner provided by Condition 15.
Such notice, which shall be in the English language, shall state
generally the nature of the business to be transacted at the meeting
thereby convened but (except for an Extraordinary Resolution) it shall
not be necessary to specify in such notice the terms of any resolution
to be proposed. Such notice shall include statements, if applicable,
to the effect that (i) Bearer Securities may, not less than 48 hours
before the time fixed for the meeting, be deposited with Paying Agents
or (to their satisfaction held to their order or under their control
for the purpose of obtaining voting certificates or appointing
proxies and (ii) the holders of Registered Securities may appoint
proxies by executing and delivering a form of proxy in the English
language to the specified office of the Registrar not less than 48
hours before the time fixed for the meeting or, in the case of corpora-
tions, may appoint representatives by resolution of their directors or
other governing body. A copy of the notice shall be sent by post to the
Trustee (unless the meeting is convened by the Trustee), to the Issuer
(unless the meeting is convened by the Issuer) and to the Guarantor
(unless the meeting is convened by the Guarantor).
4. A person (who may but need not be a Holder) nominated in writing by the
Trustee shall be entitled to take the chair at the relevant meeting or
adjourned meeting but if no such nomination is made or if at any
meeting or adjourned meeting the person nominated shall not be present
within 15 minutes after the time appointed for holding the meeting or
adjourned meeting the Holders present shall choose one of their number
to be Chairman. The Chairman of an adjourned meeting need not be the
same person as was Chairman of the meeting from which the adjournment
took place.
5. At any such meeting one or more persons present holding Securities or
voting certificates or being proxies or representatives and holding
or representing in the aggregate not less than one-twentieth of
the principal amount of the Securities for the time being outstanding
shall (except for the purpose of passing an Extraordinary Resolution)
form a quorum for the transaction of business and no business (other
than the choosing of a Chairman) shall be transacted at any meeting
unless the requisite quorum be present at the commencement of the
relevant business. The quorum at any such meeting for passing an
Extraordinary Resolution shall (subject as provided below) be one or
more persons present holding Securities or voting certificates or
being proxies or representatives and holding or representing in the
aggregate a clear majority in principal amount of the Securities for
the time being outstanding PROVIDED THAT at any meeting the business
of which includes any of the following matters (each of which shall,
subject only to Clause 19(B)(ii), only be capable of being effected
after having been approved by Extraordinary Resolution) namely:
(i) reduction or cancellation of the amount payable or, where
applicable, modification (except where such modification is,
in the opinion of the Trustee, bound to result in an increase)
of the method of calculating the amount payable or
modification of the date of payment or, where applicable, of
the method of calculating the date of payment in respect of
any principal, premium or interest in respect of the
Securities;
(ii) alteration of the currency in which payments under the
Securities and Coupons are to be made;
(iii) alteration of the majority required to pass an Extraordinary
Resolution;
(iv) the sanctioning of any such scheme or proposal as is described
in paragraph 18(I) below; and
(v) alteration of this proviso or the proviso to paragraph 6
below;
the quorum shall be one or more persons present holding Securities or
voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than two-thirds of the principal
amount of the Securities for the time being outstanding.
6. If within 15 minutes (or such longer period not exceeding 30 minutes
as the Chairman may decide) after the time appointed for any such
meeting a quorum is not present for the transaction of any particular
business, then, subject and without prejudice to the transaction
of the business (if any) for which a quorum is present, the meeting
shall if convened upon the requisition of Holders be dissolved. In
any other case it shall stand adjourned to the same day in the next
week (or if such day is a public holiday the next succeeding
business day) at the same time and place (except in the case of a
meeting at which an Extraordinary Resolution is to be proposed in
which case it shall stand adjourned for such period, being not less
than 14 clear days nor more than 42 clear days, and to such place
as may be appointed by the Chairman either at or subsequent to such
meeting and approved by the Trustee). If within 15 minutes (or such
longer period not exceeding 30 minutes as the Chairman may decide)
after the time appointed for any adjourned meeting a quorum is not
present for the transaction of any particular business, then, subject
and without prejudice to the transaction of the business (if any) for
which a quorum is present, the Chairman may either (with the approval
of the Trustee) dissolve such meeting or adjourn the same for such
period, being not less than 14 clear days (but without any maximum
number of clear days), and to such place as may be appointed by the
Chairman either at or subsequent to such adjourned meeting and approved
by the Trustee, and the provisions of this sentence shall apply to all
further adjourned such meetings. At any adjourned meeting one or
more persons present holding Securities or voting certificates or
being proxies or representatives (whatever the principal amount of
the Securities so held or represented by them) shall (subject as
provided below) form a quorum and shall (subject as provided below)
have power to pass any Extraordinary Resolution or other resolution
and to decide upon all matters which could properly have been dealt
with at the meeting from which the adjournment took place had the
requisite quorum been present PROVIDED THAT at any adjourned meeting
the quorum for the transaction of business comprising any of the
matters specified in the proviso to paragraph 5 above shall be
one or more persons present holding Securities or voting certificates
or being proxies or representatives and holding or representing in the
aggregate not less than one-third of the principal amount of the
Securities for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall state the relevant quorum. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned
meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting
vote in addition to the vote or votes (if any) to which he may be
entitled as a Holder or as a holder of a voting certificate or as a
proxy or as a representative.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman, the Issuer, the
Guarantor, the Trustee or any person present holding a Security or a
voting certificate or being a proxy or representative (whatever the
principal amount of the Securities so held or represented by him) a
declaration by the Chairman that a resolution has been carried or
carried by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact without proof of the
number or proportion of the votes recorded in favour of or against such
resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such pol1 shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of
the meeting for the transaction of any business other than the motion
on which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any
such meeting adjourn the same from time to time and from place to place
but no business shall be transacted at any adjourned meeting except
business which might lawfully (but for lack of required quorum) have
been transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or
on any question of adjournment shall be taken at the meeting without
adjournment.
13. The Trustee and its lawyers and financial advisers and any director,
officer or employee of a corporation being a trustee of these presents
and any director or officer of the Issuer or the Guarantor and its
lawyers and its accountants and financial advisers and any other person
authorised so to do by the Trustee may attend and speak at any meeting.
Save as aforesaid, but without prejudice to the proviso to the
definition of "outstanding" in Clause 1, no person shall be entitled
to attend and speak nor shall any person be entitled to vote at any
meeting of the Holders or join with others in requesting the convening
of such a meeting or to exercise the rights conferred on the Holders by
Conditions 11 and 12 unless he either produces the Bearer Security or
Bearer Securities of which he is the holder or a voting certificate or
is a proxy or a representative or is the holder of a Registered
Security or Registered Securities. No person shall be entitled to vote
at any meeting in respect of Securities held by, for the benefit of,
or on behalf of, the Issuer, the Guarantor, any other Subsidiary of the
Guarantor, any holding company of the Guarantor or any other Subsidiary
of any such holding company. Nothing herein shall prevent any of the
proxies named in any block voting instruction or form of proxy or any
representative from being a director, officer or representative of or
otherwise connected with the Issuer or the Guarantor.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and
produces a Bearer Security or voting certificate or is a
holder of Registered Securities or is a proxy or
representative shall have one vote; and
(B) on a poll every person who is so present shall have one vote
in respect of each (pound)1 or such other amount as the
Trustee may in its absolute discretion stipulate (or, in the
case of meetings of holders of Securities denominated in
another currency, such amount in such other currency as the
Trustee in its absolute discretion may stipulate) in principal
amount of the Securities so produced or represented by the
voting certificate so produced or in respect of which he is a
proxy or representative or in respect of which he is the
holder.
Without prejudice to the obligations of the proxies named in any block
voting instruction or form of proxy any person entitled to more than
one vote need not use all his votes or cast all the votes to which he
is entitled in the same way.
I5. In respect of Registered Securities, in the case of joint holders the
vote or the senior who tenders a vote whether in person or by proxy
shall be accepted to the exclusion of the votes of the other joint
holders and for this purpose seniority shall be determined by the order
in which the names stand in the register of Holders as the Holders
thereof.
16. The proxies named in any block voting instruction or form of proxy and
representatives need not be Holders.
17. Each block voting instruction together (if so requested by the Trustee)
with proof satisfactory to the Trustee of its due execution on
behalf of the relevant Paying Agent and each form of proxy shall be
deposited by the relevant Paying Agent or (as the case may be) by
the Registrar at such place as the Trustee shall approve not less
than 24 hours before the time appointed for holding the meeting or
adjourned meeting at which the proxies named in the block voting
instruction or form of proxy propose to vote and in default the block
voting instruction or form of proxy shall not be treated as valid
unless the Chairman of the meeting decides otherwise before such
meeting or adjourned meeting proceeds to business. A notarially
certified copy of each block voting instruction and form of proxy
shall be deposited with the Trustee before the commencement of the
meeting or adjourned meeting but the Trustee shall not thereby be
obliged to investigate or be concerned with the validity of or the
authority of the proxies named in any such block voting instruction or
form of proxy.
18. Any vote given in accordance with the terms of a block voting instruc-
tion or form of proxy shall be valid notwithstanding the previous
revocation or amendment of the block voting instruction or form of
proxy or of any of the Holders' instructions pursuant to which it was
executed provided that no intimation in writing of such revocation
or amendment shall have been received from the relevant Paying Agent
or in the case of a Registered Security from the holder thereof by the
Issuer at its registered office (or such other place as may have been
required or approved by the Trustee for the purpose) by the time being
24 hours and 48 hours respectively before the time appointed for
holding the meeting or adjourned meeting at which the block voting
instruction or form of proxy is to be used.
19. A meeting of the Holders shall in addition to the powers hereinbefore
given have the following powers exercisable only by Extraordinary
Resolution (subject to the provisions relating to quorum contained in
paragraphs 5 and 6 above) namely:
(A) Power to sanction any compromise or arrangement proposed to be
made between the Issuer, the Guarantor, the Trustee, any
Appointee and the Holders and Couponholders or any of them.
(B) Power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Trustee, any
Appointee, the Holders, the Couponholders, the Issuer or the
Guarantor against any other or others of them or against any
of their property whether such rights shall arise under these
presents or otherwise.
(C) Power to assent to any modification of the provisions of these
presents which shall be proposed by the Issuer, the Guarantor,
the Trustee or any Holder.
(D) Power to give any authority or sanction which under the
provisions of these presents is required to be given by
Extraordinary Resolution.
(E) Power to appoint any persons (whether Holders or not) as a
committee or committees to represent the interests of the
Holders and to confer upon such committee or committees any
powers or discretions which the Holders could themselves
exercise by Extraordinary Resolution.
(F) Power to approve of a person to be appointed a trustee and
power to remove any trustee or trustees for the time being of
these presents.
(G) Power to discharge or exonerate the Trustee and/or any
Appointee from all liability in respect of any act or omission
for which the Trustee and/or such Appointee may have become
responsible under these presents.
(H) Power to authorise the Trustee and/or any Appointee to concur
in and execute and do all such deeds, instruments, acts and
things as may be necessary to carry out and give effect to any
Extraordinary Resolution.
(I) Power to sanction any scheme or proposal for the exchange or
sale of the Securities for or the conversion of the Securities
into or the cancellation of the Securities in consideration of
shares, stock, bonds, notes, debentures, debenture stock
and/or other obligations and/or securities of the Issuer or
any other company formed or to be formed, or for or into or in
consideration of cash, or partly for or into or in
consideration of such shares, stock, bonds, notes, debentures,
debenture stock and/or other obligations and/or securities as
aforesaid and partly for or into or in consideration of cash.
20. Any resolution passed at a meeting of the Holders duly convened and
held in accordance with these presents shall be binding upon all the
Holders whether present or not present at such meeting and whether or
not voting and upon all Couponholders and each of them shall be bound
to give effect thereto accordingly and the passing of any such
resolution shall be conclusive evidence that the circumstances justify
the passing thereof. Notice of the result of the voting on any
resolution duly considered by the Holders shall be published in
accordance with Condition 15 by the Issuer within 14 days of such
result being known PROVIDED THAT the non-publication of such notice
shall not invalidate such result.
21. The expression "Extraordinary Resolution" when used in these presents
means a resolution passed at a meeting of the Holders duly convened and
held in accordance with these presents by a majority consisting of not
than three-fourths of the persons voting thereat upon a show of hands
or if a poll is duly demanded by a majority consisting of not less than
three-fourths of the votes cast on such poll.
22. Minutes of all resolutions and proceedings at every meeting of the
Holders shall be made and entered in books to be from time to time
provided for that purpose by the Issuer and any such Minutes as
aforesaid if purporting to be signed by the Chairman of the meeting at
which such resolutions were passed or proceedings transacted shall be
conclusive evidence of the matters therein contained and until the
contrary is proved every such meeting in respect of the proceedings of
which Minutes have been made shall be deemed to have been duly held
and convened and all resolutions passed or proceedings transacted
thereat to have been duly passed or transacted.
23. (A) If and whenever the Issuer shall have issued and have
outstanding Securities of more than one series the foregoing
provisions of this Schedule shall have effect, subject to the
following modifications:
(i) a resolution which in the opinion of the Trustee
affects the Securities of only one series shall be
deemed to have been duly passed if passed at a
separate meeting of the holders of the Securities of
that series;
(ii) a resolution which in the opinion of the Trustee
affects the Securities of more than one series but
does not give rise to a conflict of interest between
the holders of Securities of any of the series so
affected shall be deemed to have been duly passed if
passed at a single meeting of the holders of the
Securities of all the series so affected;
(iii) a resolution which in the opinion of the Trustee
affects the Securities of more than one series and
gives or may give rise to a conflict of interest
between the holders of the Securities of one series
or group of series so affected and the holders of the
Securities of another series or group of series so
affected shall be deemed to have been duly passed
only if passed at separate meetings of the holders of
the Securities of each series or group of series so
affected; and
(iv) to all such meetings all the preceding provisions of
this Schedule shall mutatis mutandis apply as though
references therein to Securities, Holders and holders
were references to the Securities of the series or
group of series in question or to the holders of such
Securities, as the case may be.
(B) If the Issuer shall have issued and have outstanding
Securities which are not denominated in pounds sterling, in
the case of any meeting of holders of Securities of more than
one currency the principal amount of such Securities shall
(i) for the purposes of paragraph 2 above be the equivalent
in pounds sterling at the spot rate of a bank nominated
by the Trustee for the conversion of the relevant currency
or currencies into pounds sterling on the seventh dealing day
prior to the day on which the requisition in writing is
received by the Issuer and (ii) for the purposes of paragraphs
5, 6 and 14 above (whether in respect of the meeting or any
adjourned such meeting or any poll resulting therefrom) be
the equivalent at such spot rate on the seventh dealing
day prior to the day of such meeting. In such circumstances,
on any poll each person present shall have one vote for each
(pound)1 (or such other pound sterling amount as the Trustee
may in its absolute discretion stipulate) in principal amount
of the Securities (converted as above) which he holds or
represents.
24. Subject to all other provisions of these presents the Trustee may
without the consent of the Issuer, the Guarantor, the Holders or the
Couponholders prescribe such further regulations regarding the
requisitioning and/or the holding of meetings of Holders and attendance
and voting thereat as the Trustee may in its sole discretion think fit.
EXECUTED as a deed )
by YORKSHIRE POWER FINANCE )
LIMITED, acting by A. DONNELLY ) A. DONNELLY
acting under the authority )
of that Company, in the presence of: )
Witness's signature
Name M. R. CHEVASSUT
Address 1 ABBEY LANE, HEALAUGH
NORTH YORKSHIRE
Occupation BANKING AND RISK MANAGER
EXECUTED as a deed by )
YORKSHIRE POWER ) A. PENA
GROUP LIMITED ) director
acting by A. PENA )
and R. KELLY ) R. KELLY
director
THE COMMON SEAL of )
BANKERS TRUSTEE )
COMPANY LIMITED was ) [SEAL[
affixed to this deed in the )
presence of: )
Director C. STRAKOSCH
Director M. JONES