EXHIBIT 10.79
YORKSHIRE POWER FINANCE 2 LIMITED, as Issuer
and
YORKSHIRE POWER GROUP LIMITED, as Guarantor
and
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Registrar and Transfer Agent
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 16, 2000
Reset Senior Notes Due February 15, 2020
FIRST SUPPLEMENTAL INDENTURE, dated as of February 16, 2000
(this "First Supplemental Indenture"), among YORKSHIRE POWER FINANCE 2 LIMITED,
a limited liability company organized under the laws of the Cayman Islands, as
issuer (the "Company"), YORKSHIRE POWER GROUP LIMITED, a private limited company
incorporated under the laws of England and Wales, as guarantor (the
"Guarantor"), and THE BANK OF NEW YORK, as Trustee, Principal Paying Agent,
Security Registrar and Transfer Agent under the Original Indenture referred to
below (the "Trustee").
WITNESSETH:
WHEREAS, each of the Company and the Guarantor has heretofore
executed and delivered to the Trustee an indenture dated as of February 1, 2000,
(hereinafter called the "Original Indenture"), to provide for the issuance from
time to time of certain of the Company's unsecured debentures, notes or other
evidences of indebtedness (herein called the "Securities"), the forms and terms
of which are to be established as set forth in Sections 201 and 301 of the
Original Indenture;
WHEREAS, Section 901 of the Original Indenture provides, among
other things, that the Company, the Guarantor and the Trustee may enter into
indentures supplemental to the Original Indenture for, among other things, the
purpose of establishing the forms and terms of the Securities of any series as
permitted by Sections 201 and 301 of the Original Indenture and of appointing an
Authenticating Agent with respect to the Securities of any series;
WHEREAS, the Company desires to create a series of the
Securities in an aggregate principal amount of (pound)155,000,000 to be
designated Reset Senior Notes Due February 15, 2020 (the "Senior Notes"), and
all action on the part of the Company necessary to authorize the issuance of the
Senior Notes under the Original Indenture and this First Supplemental Indenture
has been duly taken;
WHEREAS, all acts and things necessary to make the Senior
Notes, when executed by the Company and authenticated and delivered by the
Trustee as in the Original Indenture provided, the valid and binding obligations
of the Company and to constitute these presents a valid and binding supplemental
indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance
and purchase of the Senior Notes by the holders thereof and of the acceptance of
this trust by the Trustee, each of the Company and the Guarantor covenants and
agrees with the Trustee, for the equal benefit of holders of the Senior Notes,
as follows:
ARTICLE ONE
Definitions
The use of terms and expressions herein is in accordance with
the definitions, uses and constructions contained in the Original Indenture and
the forms of Securities attached hereto as Exhibits A and B. In addition, for
-1-
all purposes of this First Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise expressly requires, the following terms
shall have the respective meanings assigned to them as follows and shall he
construed as if defined in Article One of the Original Indenture:
"Agent Bank" means The Bank of New York as designated by the
Company in the Interest Calculation Agency Agreement, dated as of February 1,
2000, among the Company, the Guarantor and the Agent Bank.
"Book-Entry Depositary" means The Bank of New York as
designated by the Company in the Deposit Agreement until a successor shall have
become such pursuant to the applicable provisions of the Deposit Agreement, and
thereafter "Book-Entry Depositary" shall mean such successor Book-Entry
Depositary or the nominee or custodian of either.
"Business Day" means each day that is not a Saturday, Sunday
or a day on which banking institutions or foreign exchange markets in New York
City and London are authorized or obligated by law to remain closed.
"Callholder" means UBS AG, London Branch, as holder of the
call option under the Call Option Agreement.
"Call Option Agreement" means the confirmation, dated February
9, 2000, between the Pass-Through Trustee and the Callholder, pursuant to the
ISDA Master Agreement, providing a call option to the Callholder.
"Conversion Event" means the declaration, at any time prior to
(but excluding) the Initial Reset Date, of the principal amount of the Senior
Notes to be due and payable immediately in accordance with Section 502 of the
Original Indenture as a result of the occurrence of an Event of Default.
"Definitive Registered Securities" means the Senior Notes
substantially in the form of Exhibit B to this First Supplemental Indenture.
"Deposit Agreement" means the Deposit Agreement, dated as of
February 1, 2000, among the Company, the Book-Entry Depositary and the holders
and beneficial owners from time to time of interests in the Book-Entry Interests
issued thereunder.
"DTC" means The Depository Trust Company, New York, New York,
or its successors.
"Fixed Rate Determination Date" means the tenth Business Day
prior to the Fixed Rate Reset Date.
"Fixed Rate Reset Date" means the Reset Date corresponding to
the Floating Rate Period Termination Date or the Initial Reset Date, as
applicable.
"Floating Period Interest Rate" means, with respect to any
Floating Rate Reset Period, the per annum interest rate with respect to the
Senior Notes for such Floating Rate Reset Period determined by the Remarketing
Agent in accordance with the Remarketing Agreement.
-2-
"Floating Rate Option" means the right of the Company to, at
its option, reset the interest rate on the Senior Notes on the Initial Reset
Date to the Floating Period Interest Rate for each Floating Rate Reset Period.
"Floating Rate Period" means the period from and including the
Initial Reset Date to but excluding the Floating Rate Period Termination Date.
"Floating Rate Period Termination Date" means February 15,
2006 (unless such date is not a Business Day, in which case the next succeeding
day that is a Business Day) or, if the Company elects to earlier terminate the
Floating Rate Period, an earlier Reset Date, provided that the Company gives
notice of such election to the Trustee and the Remarketing Agent no later than
the 17th Business Day prior to such earlier Reset Date in accordance with the
Remarketing Agreement.
"Floating Rate Purchase Price" means the purchase price to be
paid by any Floating Rate Dealer for the Senior Notes on the Initial Reset Date,
which shall be equal to (i) the principal amount of the Senior Notes plus (ii)
the Senior Note Premium.
"Floating Rate Reset Period" means the period from and
including the Initial Reset Date to but excluding the next succeeding Reset Date
and thereafter the period from and including such next succeeding Reset Date to
but excluding the next succeeding Reset Date; provided, however, that the final
Floating Rate Reset Period shall extend to but exclude the Floating Rate Period
Termination Date.
"Floating Rate Spread Determination Date" means the tenth
Business Day prior to the Initial Reset Date.
"Global Securities" means Global Bearer Securities, evidencing
the Senior Notes, issued to the Book-Entry Depositary substantially in the form
of Exhibit A to this First Supplemental Indenture.
"Initial Reset Date" means February 15, 2005 (unless such date
is not a Business Day, in which case the next succeeding day that is a Business
Day).
"Interest Accrual Period" means the period from and including
the preceding Interest Payment Date (or, in the case of the first such period,
from and including the date of initial issuance of the Senior Notes) to but
excluding the current Interest Payment Date.
"Interest Payment Date" means, in the case of interest
accruing on the Senior Notes (i) during the period from and including the date
of initial issuance of the Senior Notes to but excluding the Initial Reset Date,
each February 15 and August 15 in such period and the Initial Reset Date (unless
any such date is not a Business Day and a Conversion Event has not occurred, in
which case the next succeeding day that is a Business Day), (ii) during the
period from and including the Fixed Rate Reset Date to but excluding the final
maturity of the Senior Notes, each February 15 and August 15 occurring after the
Initial Reset Date and (iii) during each Floating Rate Reset Period in the
Floating Rate Period, the Reset Date next succeeding such Floating Rate Reset
Period.
-3-
"Interest Rate to Maturity" means the per annum interest rate
with respect to the Senior Notes from and including the Fixed Rate Reset Date to
but excluding the final maturity of the Senior Notes equal to the rate that
would amortize the Senior Note Premium determined by the Remarketing Agent
pursuant to the Remarketing Agreement.
"ISDA Master Agreement" means the ISDA Master Agreement dated
as of February 1, 2000 between UBS AG, London Branch and the Pass-Through
Trustee, as supplemented and amended by the Schedule thereto.
"Pass-Through Trustee" means The Bank of New York, as trustee
of the Yorkshire Power Pass-Through Asset Trust 2000-1.
"Reference Banks" means the Agent Bank and any other four
reference dealers selected by the Agent Bank and agreed to by the Company.
"Regulation S" means Regulation S under the Securities Act, as
such Regulation may be amended from time to time, or under any similar rules or
regulations hereafter adopted by the Commission.
"Remarketing Agreement" means the Remarketing Agreement dated
as of February 1, 2000 among the Company, the Guarantor and the Remarketing
Agent.
"Remarketing Agent" means UBS AG, London Branch or any
affiliate thereof or its successor or assigns.
"Reset Date" means the Initial Reset Date and, as applicable,
May 15, 2005, August 15, 2005, November 15, 2005 or February 15, 2006 (unless
any such date is not a Business Day, in which case the next succeeding day that
is a Business Day).
"Restricted Securities Legend" means a legend substantially in
the form of the legend contained in the form of Global Security set forth in
Exhibit A hereto.
"Restricted Security" means the Senior Notes that bear or are
required to bear the Restricted Securities Legend.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or under any similar rules or regulation
hereafter adopted by the Commission.
"Screen Rate" means the rate for six-month Sterling deposits
displayed on the Bridge/Telerate Page No. 3750 (or such replacement page on that
service which displays the information).
"Senior Note Premium" means the premium on the Senior Notes
determined by the Remarketing Agent pursuant to the Remarketing Agreement.
-4-
ARTICLE TWO
Terms and Issuance of the Senior Notes
SECTION 201. Issue of Securities.
(a) A series of Securities which shall be designated the
"Reset Senior Notes Due February 15, 2020" shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all respects be
subject to the terms, conditions and covenants of the Original Indenture and
this First Supplemental Indenture (including the forms of the Senior Notes set
forth in Exhibits A and B hereto).
(b) The aggregate principal amount of the Senior Notes which
may be authenticated and delivered under the First Supplemental Indenture shall
not, except as permitted by the provisions of the Original Indenture, exceed
(pound)155,000,000; provided, however, that, upon the occurrence of a Conversion
Event, such aggregate principal amount shall not, except as permitted by the
provisions of the Original Indenture, exceed $250,000,000.
(c) On or after the Initial Reset Date, the Senior Notes shall
be issuable in minimum denominations of (pound)10,000 and integral multiples of
(pound)1,000 in excess thereof. Prior to the Initial Reset Date, (i) so long as
the Senior Notes are issued in the form of one or more Global Securities, the
Senior Notes shall be issuable in any denomination or denominations requested by
the Book-Entry Depositary and (ii) if the Senior Notes are issued in the form of
Definitive Registered Securities, the Senior Notes shall be issuable in minimum
denominations of (pound)10,000 and integral multiples of (pound)1,000 in excess
thereof, unless such Definitive Registered Securities are issued as a result of
an Optional Definitive Security Request, in which case such Senior Notes shall
be issuable in minimum denominations of $100,000 and integral multiples of
$1,000 in excess thereof.
(d) The Senior Notes shall have a final maturity date of
February 15, 2020.
(e) The Regular Record Date for the Senior Notes shall be 15
calendar days immediately prior to each Interest Payment Date.
SECTION 202. Interest through Initial Reset Date.
(a) The per annum interest rate on the Senior Notes for each
Interest Accrual Period through the Initial Reset Date will be reset semi-
annually as described in this Section 202; provided, however, that, upon the
occurrence of a Conversion Event, the provisions of Section 203 shall become
effective.
(b) Interest on the Senior Notes through the Initial Reset
Date will be payable semi-annually on each Interest Payment Date, commencing on
the Interest Payment Date next succeeding the date of initial issuance of the
Senior Notes; provided, however, that, upon a Conversion Event, if any such
Interest Payment Date is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay).
-5-
(c) The rate of interest payable from time to time through the
Initial Reset Date in respect of the Senior Notes for any Interest Accrual
Period (the "Rate of Interest") will be determined on the basis of the following
provisions:
(i) on the first day of such Interest Accrual Period (the
"Interest Determination Date"), the Agent Bank will determine the
Screen Rate at or about 11:00 a.m. (London time) on the Interest
Determination Date. If such Screen Rate is unavailable, the Agent Bank
will request the principal London office of each of the Reference Banks
to provide the Agent Bank with its offered quotation to leading banks
for Sterling deposits in the London interbank market for such Interest
Accrual Period at or about 11:00 a.m. (London time) on the Interest
Determination Date. The Rate of Interest for such Interest Accrual
Period shall be such Screen Rate plus 0.805% per annum (the "Margin")
or, if such Screen Rate is unavailable, the arithmetic average (rounded
upwards if necessary to the nearest 1/16th of 1%) of the offered
quotations provided by the Reference Banks (excluding the highest and
lowest (or, in either case, if more than one, then only one of them) of
such quotations) plus the Margin;
(ii) if on the Interest Determination Date such Screen Rate is
unavailable and only four of the Reference Banks provide offered
quotations, the Rate of Interest for such Interest Accrual Period shall
be determined in accordance with the provisions of paragraph (i) above
on the basis of the offered quotations of those Reference Banks
providing the offered quotations (excluding the highest and lowest of
such quotations as provided in paragraph (i) above);
(iii) if on the Interest Determination Date such Screen Rate
is unavailable and only two or three of the Reference Banks provide
offered quotations, the Rate of Interest for such Interest Accrual
Period shall be determined in. accordance with the provisions of
paragraph (i) above on the basis of the offered quotations of those
Reference Banks providing the offered quotations (but without excluding
the highest and lowest of such quotations as provided in paragraph (i)
above); and
(iv) if on the Interest Determination Date such Screen Rate is
unavailable and only one or none of the Reference Banks provides an
offered quotation, then the Rate of Interest for such Interest Accrual
Period shall be (a) the Rate of Interest in effect for that Interest
Accrual Period to which paragraph (i), (ii) or (iii) above shall have
applied which last preceded such Interest Accrual Period or (b) if
determinable and if higher, the Reserve Interest Rate (as defined
below). The "Reserve Interest Rate" shall be the rate per annum which
the Agent Bank determines to be either (A) the arithmetic average
(rounded upward if necessary to the nearest 1/16th of 1%) of the
Sterling lending rates for loans in an amount approximately equal to
the principal amount of the Senior Notes which London banks selected by
the Agent Bank are quoting, at or about 11:00 a.m. (London time) on the
Interest Determination Date, for such Interest Accrual Period, to the
Reference Banks or those of them (being at least two in number) to
which the quotations are, in the opinion of the Agent Bank, being so
made plus the Margin or (B) if the Agent Bank cannot determine the
arithmetic average, the lowest Sterling lending rate which four London
banks selected by the Agent Bank are quoting, on the Interest
Determination Date, for such Interest Accrual Period, to leading
European banks plus the Margin.
-6-
(d) The Agent Bank shall, as soon as practicable after 11:00
a.m. (London time) on each Interest Determination Date, but in no event later
than the third Business Day thereafter, determine the Sterling amount payable in
respect of interest on the principal amount of the Senior Notes (the "Interest
Amount") for the relevant Interest Accrual Period. The Interest Amount for any
Interest Accrual Period shall be determined by (i) applying the Rate of Interest
for such Interest Accrual Period to the principal amount of the Senior Notes and
(ii) multiplying that amount by the actual number of days in such Interest
Accrual Period divided by 365 (or if such Interest Accrual Period ends after
February 28 in a leap year, 366) expressed as a decimal and rounded upward if
necessary to the nearest 1/16th of 1%.
(e) All determinations, certificates, calculations, quotations
and decisions given, expressed, made or obtained for the purposes of the pro-
visions of this Section 202, whether by the Reference Banks (or any of them) or
the Agent Bank, will (in the absence of willful default, bad faith or manifest
error) be binding on the Company, the Guarantor, the Reference Banks, the Agent
Bank, the Paying Agent and all holders of Senior Notes, and (in the absence as
referred to above) no liability to the Company, the Guarantor or the holders of
Senior Notes shall attach to the Reference Banks or the Agent Bank in
connection with the exercise or non-exercise by them of their powers, duties and
discretions under this Section 202.
SECTION 203. Conversion Event.
(a) Upon the occurrence of a Conversion Event, then
automatically (i) the aggregate principal amount of the Senior Notes shall
convert to $250,000,000 effective from the date of the immediately preceding
Interest Payment Date prior to the occurrence of such Conversion Event, (ii) the
interest rate on the Senior Notes shall convert to 8.25% per annum effective
from the date of the immediately preceding Interest Payment Date prior to the
occurrence of such Conversion Event and (iii) such interest rate shall be
calculated on the basis of a 360-day year of twelve 30-day months.
(b) Notwithstanding anything in Section 502 of the Original
Indenture to the contrary, the aggregate principal amount of the Outstanding
Senior Notes that shall become immediately due and payable upon a Conversion
Event shall be as set forth in clause (i) of Section 203(a) hereof.
(c) Upon a Conversion Event, the Trustee shall provide notice
by first class mail within 15 calendar days after the occurrence of such
Conversion Event (or if the declaration of acceleration relating to such
Conversion Event shall have been given by holders of the Senior Notes, after the
date on which the Trustee shall receive notice of such acceleration) of the
information set forth in this Section 203 to any securities exchange on which
the Senior Notes may then be listed and to the holder of the Senior Notes.
SECTION 204. Interest after Initial Reset Date.
(a) Interest Rate to Maturity.
(i) In accordance with the procedures established in the
Remarketing Agreement and subject to Section 212, the interest rate in effect
with respect to the Senior Notes immediately prior to the Initial Reset Date
shall be reset on the Initial Reset Date to equal the Interest Rate to Maturity,
-7-
which shall be effective from and including the Initial Reset Date to but
excluding the final maturity of the Senior Notes, unless the Company shall
exercise the Floating Rate Option in accordance with paragraph (b) of this
Section 204. If the Company shall have so exercised the Floating Rate Option,
then the Floating Period Interest Rate shall be reset in accordance with the
Remarketing Agreement on the Reset Date corresponding to the Floating Rate
Period Termination Date to equal the Interest Rate to Maturity, which shall be
effective from and including such Reset Date to but excluding the final maturity
of the Senior Notes.
(ii) During the period from and including the Fixed Rate Reset
Date to but excluding the final maturity of the Senior Notes, interest on the
Senior Notes shall accrue on the principal amount of the Senior Notes at the
Interest Rate to Maturity and shall be payable semi-annually on each Interest
Payment Date, commencing with the first such Interest Payment Date following the
Fixed Rate Reset Date; provided, however, that, if any such Interest Payment
Date is not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay). Interest on the Senior
Notes from the Fixed Rate Reset Date shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
(b) Floating Rate Period.
(i) In accordance with procedures established in the
Remarketing Agreement and subject to Section 212, if the Company exercises the
Floating Rate Option no later than the seventh Business Day prior to the
Floating Rate Spread Determination Date by providing notice to the Trustee and
Remarketing Agent, then the Senior Notes shall bear interest at the Floating
Period Interest Rate for each Floating Rate Reset Period in the Floating Rate
Period.
(ii) During each Floating Rate Reset Period in the Floating
Rate Period, interest on the Senior Notes shall accrue on the Floating Rate
Purchase Price at the Floating Period Interest Rate for such Floating Rate Reset
Period and shall be payable quarterly on each Interest Payment Date, commencing
with the first such Interest Payment Date following the Initial Reset Date. The
Interest Amount for such Floating Rate Reset Period shall be determined by (A)
applying the Floating Period Interest Rate for such Floating Rate Reset Period
to the Floating Rate Purchase Price and (B) multiplying that amount by the
actual number of days in such Floating Rate Reset Period divided by 365 (or, if
such Floating Rate Reset Period ends after February 28 in a leap year, 366)
expressed as a decimal and rounded upward if necessary to the nearest 1/16th of
1%.
(c) Notice.
Subject to Section 212, the Remarketing Agent shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission) by 4:00 p.m. (London time),
(i) on the Fixed Rate Determination Date of the Interest Rate to Maturity, which
shall be effective from and including the Fixed Rate Reset Date and (ii) on each
Reset Date, if the Company elects the Floating Rate Option, of the Floating
Period Interest Rate for the Floating Rate Reset Period beginning on such Reset
Date, which shall be effective from and including such Reset Date. Any such
notification by the Remarketing Agent, absent manifest error, shall be binding
and conclusive upon the holders of beneficial interests in the Senior Notes, the
Company, the Guarantor and the Trustee.
-8-
SECTION 205. Limitation on Liens. The covenant provided
by Section 1004 of the Original Indenture shall be applicable to the Senior
Notes.
SECTION 206. Limitation on Sale and Lease-Back Trans-
actions. The covenant provided by Section 1005 of the Original Indenture shall
be applicable to the Senior Notes.
SECTION 207. Guarantee. The Guarantee provided by Article
Fourteen of the Original Indenture shall be applicable to the Senior Notes.
SECTION 208. Place of Payment.
(a) The Place of Payment in respect of the Senior Notes will
be in New York, New York, initially the Corporate Trust Office of The Bank of
New York, and, for so long as the Senior Notes are listed on the Luxembourg
Stock Exchange, in Luxembourg, initially the corporate trust office of Banque
Generale du Luxembourg S.A., which at the date hereof, is located at 50 Avenue
J. F. Kennedy, L-2951 Luxembourg.
(b) The Trustee shall make Sterling-denominated payments on
the Senior Notes through a London-based account of the Trustee.
SECTION 209. Issuance of Global Securities. Each of the
Senior Notes shall be issued as one or more Global Securities and delivered by
the Trustee to the Book-Entry Depositary, as the Holder thereof, or a nominee or
custodian therefor, to be held by the Book-Entry Depositary pursuant to the
Deposit Agreement. Definitive Registered Securities shall only be issued by the
Company in exchange for the Global Securities in the circumstances set forth in
the Global Securities. The forms of the Global Securities and the Definitive
Registered Securities shall be substantially in the forms of Exhibits A and B,
respectively, attached hereto, the terms of which are herein incorporated by
reference and which are part of this First Supplemental Indenture. The Senior
Notes offered and sold in their initial distribution in reliance on Rule 144A
shall initially be issued in the form of one or more separate Global Securities
(each, a "Rule 144A Global Security"). The Senior Notes offered and sold in
their initial distribution in reliance on Regulation S shall initially be issued
in the form of one or more separate Global Securities (each, a "Regulation S
Global Security").
SECTION 210. Transfer Restrictions.
(a) Except as otherwise determined by the Company in
accordance with applicable law as set forth below, the Senior Notes shall bear
the Restricted Securities Legend and may not be transferred except in compliance
with the Restricted Securities Legend. Unless with respect to the whole or any
portion of any Restricted Security the Company determines otherwise in
accordance with applicable law, the Restricted Securities Legend borne by such
Restricted Security shall be removed by the Company (i) in the case of any Rule
144A Global Security or any Definitive Registered Security issued in exchange
for an interest therein, upon presentation to the Trustee of such Restricted
Security by the Holder thereof at any time on or after the occurrence of the
"Resale Restriction Termination Date" on such Legend and (ii) in the case of any
Regulation S Global Security or any Definitive Registered Security issued in
exchange for an interest therein, upon presentation to the Trustee of such
-9-
Restricted Security by the Holder thereof at any time on or after the expiration
of the "distribution compliance period" (within the meaning of Regulation S).
(b) If a holder of a beneficial interest in a Rule 144A Global
Security wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in a Regulation S
Global Security, or if a holder of a beneficial interest in a Regulation S
Global Security wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in a Rule
144A Global Security, upon receipt by the Trustee of (A) written instructions
given in accordance with the rules and procedures of DTC (together with, as
applicable, the rules and procedures of The Euroclear System and Clearstream
Banking, societe anonyme, the "Applicable Procedures") from the applicable
Participant directing the Book-Entry Depositary to cause to be credited to
another account of a Participant a beneficial interest in such Regulation S
Global Security or Rule 144A Global Security (as the case may be) equal to that
of the beneficial interest in such Rule 144A Global Security or Regulation S
Global Security (as the case may be) to be so transferred, (B) a written order
given in accordance with the Applicable Procedures containing information
regarding such other account, as well as the account of The Euroclear System or
Clearstream Banking, societe anonyme (as the case may be), for which such other
account is held, to be credited with, and the account of such applicable
Participant to be debited for, such beneficial interest and (C) a certificate
satisfactory to the Company, the Guarantor and the Trustee, as to such
transfer's compliance with the registration requirements of the Securities Act,
given by the transferor of such beneficial interest, the Trustee shall (1)
reduce or increase (as the case may be) the principal amount of such Rule 144A
Global Security, and increase or reduce (as the case maybe) the principal amount
of such Regulation S Global Security, in each case by an amount equal to the
principal amount of the beneficial interest in such Rule 144A Global Security or
Regulation S Global Security (as the case may be) to be so transferred, as
evidenced by appropriate endorsements on Schedule A to each such Global
Security, (2) instruct the Book-Entry Depositary to make a corresponding
reduction or increase (as the case may be) to the Book-Entry Interests relating
to such Global Security and (3) cause the Book-Entry Depositary to instruct DTC
to credit and debit such beneficial interests to the respective accounts
specified in the instructions referred to above.
SECTION 211. Mandatory Tender.
(a) If the Callholder shall have purchased the Senior Notes
pursuant to the Call Option Agreement and the Company shall have elected the
Floating Rate Option, the Senior Notes shall be automatically tendered, or
deemed tendered, by the Holders thereof to the Remarketing Agent for purchase on
the Floating Rate Period Termination Date. On the Reset Date corresponding to
the Floating Rate Period Termination Date, the interest rate on the Senior Notes
shall be reset to equal the Interest Rate to Maturity in accordance with, and
the Senior Notes shall be remarketed pursuant to, the Remarketing Agreement.
(b) The purchase price for the Senior Notes tendered pursuant
to paragraph (a) of this Section 211 shall equal 100% of the Floating Rate
Purchase Price plus accrued and unpaid interest, if any, thereon to but
excluding the Floating Rate Period Termination Date. If for any reason the
Remarketing Agent does not purchase all of the Senior Notes on the Floating Rate
Period Termination Date, the Company shall redeem the Senior Notes on the
Floating Rate Period Termination Date at a redemption price equal to 100% of the
-10-
Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon
to but excluding the Floating Rate Period Termination Date. If the Remarketing
Agent elects to purchase the Senior Notes, such obligation of the Remarketing
Agent is subject to the conditions set forth in the Remarketing Agreement.
SECTION 212. Redemption
(a) Early Redemption Right of Holder.
(i) In the event that the Callholder (A) has not given notice
on or before January 10, 2005 of its intention to exercise the call option under
the Call Option Agreement or (B) fails to pay on or before the Business Day next
preceding the Early Redemption Date (as defined below) the call price required
under the Call Option Agreement, the Company shall redeem the Senior Notes on
February 15, 2005 (such date, unless it is not a Business Day, in which case the
next succeeding day that is a Business Day, the "Early Redemption Date"), in
whole but not in part, at a price equal to 100% of the aggregate principal
amount of the Senior Notes plus accrued and unpaid interest thereon to but
excluding the Early Redemption Date, upon written notice by 5:00 p.m. (London
time) on the Business Day next preceding the Early Redemption Date from the
Book-Entry Depositary, as holder of the Senior Notes.
(ii) Any written notice given by the Book-Entry Depository, as
holder of the Senior Notes, pursuant to paragraph (a) of this Section 212 shall
be irrevocable; provided, however, that if prior to the Early Redemption Date an
Event of Default shall have occurred and be continuing, such holder, at its
option, may elect by written notice to the Company, to withdraw the instructions
given pursuant to this Section 212 and instead declare the Senior Notes to be
due and payable pursuant to Section 502 of the Original Indenture.
(iii) Sections 1102 and 1104 of the Original Indenture shall
not apply to any redemption pursuant to paragraph (a) of this Section 212.
(b) Mandatory Redemption.
If the Callholder shall have purchased the Senior Notes
pursuant to the Call Option Agreement and the Company shall have elected the
Floating Rate Option, the Company shall be required to redeem the Senior Notes,
in whole but not in part, on any Reset Date following the Initial Reset Date at
a redemption price equal to the Floating Rate Purchase Price plus accrued and
unpaid interest, if any, thereon to but excluding such Reset Date in the event
that (i) the Remarketing Agent for any reason does not notify the Company of the
Floating Period Interest Rate for the Floating Rate Reset Period beginning on
such Reset Date by 4:00 p.m. (London time) on such Reset Date or of the Interest
Rate to Maturity by 4:00 p.m., (London time) on the Fixed Rate Determination
Date, as applicable, (ii) prior to any such Reset Date, the Remarketing Agent
resigns and no successor has been appointed on or before such Reset Date or
Determination Date, as applicable, (iii) the Remarketing Agent elects to
terminate the Remarketing Agreement in accordance with its terms, (iv) the
Remarketing Agent for any reason does not elect (by notice to the Company and
the Trustee not later than the Fixed Rate Determination Date) to purchase the
Senior Notes for remarketing on the Floating Rate Period Termination Date, (v)
the Remarketing Agent for any reason does not deliver the purchase price of the
Senior Notes to or through DTC on or before the Floating Rate Period Termination
Date as provided in the Remarketing Agreement or (vi) the Company for any reason
-11-
fails to redeem the Senior Notes following the Company's election to effect such
redemption as set forth in paragraph (c) of this Section 212.
(c) Optional Redemption.
If the Callholder shall have purchased the Senior Notes
pursuant to the Call Option Agreement and the Company shall have elected the
Floating Rate Option, the Company shall notify the Callholder, the Remarketing
Agent and the Trustee, not later than the Business Day immediately preceding the
Floating Rate Period Termination Date, if the Company irrevocably elects to
exercise its right to redeem the Senior Notes, in whole but not in part, from
the Remarketing Agent on the Floating Rate Period Termination Date. If the
Company elects to redeem the Senior Notes, the Company shall redeem the Senior
Notes in whole at a redemption price equal to the Floating Rate Purchase Price
plus accrued and unpaid interest, if any thereon to but excluding the Floating
Rate Period Termination Date.
d) Optional Tax Redemption.
The redemption provisions of Section 1108 of the Original
Indenture shall be applicable to the Senior Notes.
ARTICLE THREE
Authenticating Agent; Book-Entry Depositary; Exchange Rate Agreement
SECTION 301. Authenticating Agent; Book-Entry Depositary. The
Bank of New York, a New York banking corporation, and its successors are hereby
appointed Authenticating Agent and Book-Entry Depositary with respect to the
Senior Notes.
SECTION 302. Exchange Rate Agency Agreement. The Company and
the Guarantor hereby agree to appoint the Trustee as an agent under an exchange
rate agency agreement, and will enter into such an agreement with the Trustee,
and the Trustee hereby agrees to accept such appointment, provided that such
agreement shall have such terms and provisions as are reasonably satisfactory to
the Trustee, prior to the Initial Reset Date if the Callholder exercises the
call option under the Call Option Agreement and the Senior Notes are not
redeemed pursuant to Section 212.
SECTION 303. Rule 144A Information. So long as the Senior
Notes are outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, the Company and the Guarantor shall furnish
to holders thereof and to prospective purchasers thereof designated by such
holders, upon request of such holders or such prospective purchasers, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless such information is contained, at the time of such
request, in documents filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act.
-12-
ARTICLE FOUR
Miscellaneous
SECTION 401. Execution of Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof.
SECTION 402. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this First Supplemental Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 403. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
SECTION 404. Successors and Assigns. All covenants and
agreements in this First Supplemental Indenture by each of the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 405. Severability Clause. In case any provision in
this First Supplemental Indenture or in the Senior Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 406. Benefits of First Supplemental Indenture. Nothing
in this First Supplemental Indenture or in the Senior Notes, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder and the holders, any benefit or any legal or equitable right, remedy
or claim under this First Supplemental Indenture.
SECTION 407. Execution and Counterparts. This First
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
-13-
IN WITNESS WHEREOF, the parties hereof have caused this First
Supplemental Indenture to be duly executed by their respective officers,
directors or signatories duly authorized thereto, all as of the day and year
first above written.
YORKSHIRE POWER FINANCE 2 LIMITED
By______________________________
Title: Attorney-in-Fact
YORKSHIRE POWER GROUP LIMITED
By______________________________
Title: Attorney-in-Fact
THE BANK OF NEW YORK,
as Trustee, Principal Paying Agent,
Security Registrar and Transfer
Agent
By______________________________
Title:
-14-
EXHIBIT A
{FORM OF FACE OF GLOBAL SECURITY}
[If the Global Security is a Restricted Security, insert the
following legend---THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM OR NOT
SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH YORKSHIRE POWER GROUP LIMITED (THE "GUARANTOR"),
YORKSHIRE POWER FINANCE 2 LIMITED (THE "ISSUER") OR ANY AFFILIATE OF THE
GUARANTOR OR THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE 144(k), OR
ANY SUCCESSOR PROVISION THEREOF, UNDER THE SECURITIES ACT) (THE "RESALE
RESTRICTION TERMINATION DATE") ONLY (A) TO THE GUARANTOR OR THE ISSUER, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT
TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE GUARANTOR'S, THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) ABOVE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE AS TO COMPLIANCE WITH CERTAIN CONDITIONS TO TRANSFER.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE OR SUCH EARLIER TIME AS DETERMINED BY THE ISSUER IN
ACCORDANCE WITH APPLICABLE LAW.]
THIS SECURITY IS A GLOBAL BEARER SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY A BOOK-ENTRY DEPOSITARY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES HELD BY A PERSON OTHER THAN THE
BOOK-ENTRY DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
A-1
UNLESS THIS GLOBAL BEARER SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE BOOK-ENTRY DEPOSITARY TO THE ISSUER OR ITS
AGENT FOR EXCHANGE OR PAYMENT, AND ANY DEFINITIVE REGISTERED SECURITY IS ISSUED
IN THE NAME OR NAMES AS DIRECTED IN WRITING BY THE BOOK-ENTRY DEPOSITARY, ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE BEARER HEREOF, THE BOOK-ENTRY DEPOSITARY, HAS AN
INTEREST HEREIN.
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
No.
(pound)
CUSIP
No.____________
YORKSHIRE POWER FINANCE 2 LIMITED, a limited liability company
incorporated under the laws of the Cayman Islands (herein called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the bearer upon
surrender hereof, the principal sum of (pound)____________* on February 15,
2020, and to pay interest thereon at the rate or rates per annum described
herein from February 16, 2000, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on February 15
and August 15 in each year, commencing August 15, 2000, to the Initial Reset
Date and thereafter subject to the terms and conditions set forth herein, at the
interest rate or rates determined by the Remarketing Agent in accordance with
the procedures set forth on the reverse hereof until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the bearer on such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the bearer on such Interest Payment Date and will be paid to the
bearer hereof at the time of payment of such Defaulted Interest or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
- ------------------------------
* Reference is made to (i) Schedule A attached hereto with respect to
decreases and increases in the aggregate principal amount of
Securities evidenced by this certificate and (ii) the other
provisions of this Security providing for the conversion to a US
Dollar-denominated Security.
A-2
The per annum interest rate on the Securities for each
Interest Accrual Period through the Initial Reset Date will be reset
semi-annually based on procedures set forth below and established in the
Indenture; provided, however, that upon the occurrence of a Conversion Event,
this Security will convert to a US Dollar-denominated Security as provided in
the Indenture.
The rate of interest payable from time to time through the
Initial Reset Date in respect of this Security, for any Interest Accrual Period
(the "Rate of Interest") will be determined on the basis of the following
provisions:
(i) on the first day of such Interest Accrual Period (the
"Interest Determination Date"), the Agent Bank will determine the
Screen Rate for six-month Sterling deposits at or about 11:00 a.m.
(London time) on the Interest Determination Date. If such Screen Rate
is unavailable, the Agent Bank will request the principal London office
of each of the Reference Banks to provide the Agent Bank with its
offered quotation to leading banks for Sterling deposits in the London
interbank market for such Interest Accrual Period at or about 11:00
a.m. (London time) on the Interest Determination Date. The Rate of
Interest for such Interest Accrual Period shall be such Screen Rate
plus 0.805% per annum (the "Margin") or, if such Screen Rate is
unavailable, the arithmetic average (rounded upwards if necessary to
the nearest 1/16th of 1%) of the offered quotations provided by the
Reference Banks (excluding the highest and lowest (or, in either case,
if more than one, then only one of them) of such quotations) plus the
Margin;
(ii) if on the Interest Determination Date such Screen Rate is
unavailable and only four of the Reference Banks provide offered
quotations, the Rate of Interest for such Interest Accrual Period shall
be determined in accordance with the provisions of paragraph (i) above
on the basis of the offered quotations of those Reference Banks
providing the offered quotations (excluding the highest and lowest of
such quotations as provided in paragraph (i) above);
(iii) if on the Interest Determination Date such Screen Rate
is unavailable and only two or three of the Reference Banks provide
offered quotations, the Rate of Interest for such Interest Accrual
Period shall be determined in accordance with the provisions of
paragraph (i) above on the basis of the offered quotations of those
Reference Banks providing the offered quotations (but without excluding
the highest and lowest of such quotations as provided in paragraph (i)
above); and
(iv) if on the Interest Determination Date such Screen Rate is
unavailable and only one or none of the Reference Banks provides an
offered quotation, then the Rate of Interest for such Interest Accrual
Period shall be (a) the Rate of Interest in effect for that Interest
Accrual Period to which paragraph (i), (ii) or (iii) above shall have
applied which last preceded such Interest Accrual Period or (b) if
determinable and if higher, the Reserve Interest Rate (as defined
below). The "Reserve Interest Rate" shall be the rate per annum which
the Agent Bank determines to be either (A) the arithmetic average
(rounded upward if necessary to the nearest 1/16th of 1%) of the
Sterling lending rates for loans in an amount approximately equal to
the principal amount of the Securities which London banks selected by
the Agent Bank are quoting, at or about 11:00 a.m. (London time) on the
Interest Determination Date, for such Interest Accrual Period, to the
A-3
Reference Banks or those of them (being at least two in number) to
which the quotations] are, in the opinion of the Agent Bank, being so
made plus the Margin or (B) if the Agent Bank cannot determine the
arithmetic average, the lowest Sterling lending rate which four London
banks selected by the Agent Bank are quoting, on the Interest
Determination Date, for such Interest Accrual Period, to leading
European banks plus the Margin.
The Interest Amount shall be determined by (i) applying the
Rate of Interest for such Interest Accrual Period to the principal amount of the
Securities and (ii) multiplying that amount by the actual number of days in such
Interest Accrual Period divided by 365 (or if such Interest Accrual Period ends
after February 28 in a leap year, 366) expressed as a decimal and rounded upward
if necessary to the nearest 1/16th of 1%.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, relating to the interest reset and
remarketing mechanics of this Security after the Initial Reset Date.
All payments in respect of this Security and all payments made
pursuant to the Guarantee of this Security shall be made in immediately
available funds at or through the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, and for so long
as this Security shall be listed on the Luxembourg Stock Exchange, in
Luxembourg, in such coin or currency of the United Kingdom or the United States
of America, as the case may be, as at the time of payment is legal tender for
the payment of public and private debt. The Trustee shall make
Sterling-denominated payments on the Senior Notes through a London-based account
of the Trustee.
All payments of principal of, and premium, if any, and
interest in respect of this Security and all payments made pursuant to the
Guarantee of this Security shall be made free and clear of, and without
withholding or deduction for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within a Taxing Jurisdiction or by or
within any political subdivision thereof or any authority therein or thereof
having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is
required by law. In the event of any such withholding or deduction, the Company
or the Guarantor, as the case may be, shall pay to the Holder such additional
amounts in respect of such withholding or reduction as are necessary so that the
Holder receives the amount that would have been due in the absence of such
withholding or deduction ("Additional Amounts"), except that no such Additional
Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is Liable
for such Gross-Up Taxes in respect of this Security or the Guarantee of
this Security by reason of such Holder or beneficial owner having some
connection with the relevant Taxing Jurisdiction (including being a
citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present
in, such Taxing Jurisdiction) other than the mere holding of this
Security or the receipt of principal of, and premium, if any, and
interest in respect thereon or in respect of the Guarantee of this
Security;
A-4
(b) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) for payment more than 30
days after the Relevant Date except to the extent that the Holder would
have been entitled to such Additional Amounts on presenting this
Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) in a Taxing Jurisdiction
or, so long as the Senior Notes are listed on the Luxembourg Stock
Exchange, in Luxembourg;
(d) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a
declaration of nonresidence or similar claim for exemption to the
relevant Taxing Jurisdiction; or
(e) to, or to a Person on behalf of, a Holder of a Registered
Security that is not a Global Security issued pursuant to the request
of any beneficial owner of an interest in the Security (an "Optional
Definitive Security Request") following and during the continuance of
an Event of Default if such Holder (or any predecessor Holder) was an
owner requesting that such Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security (or any interest therein) been the Holder
of the Security, such owner would not have been entitled to payment of
Additional Amounts by reason of any one or more of clauses (a) through (e)
above. If the Company or the Guarantor, as applicable, shall determine that
Additional Amounts will not be payable because of the immediately preceding
sentence, the Company or the Guarantor, as applicable, will inform such Holder
promptly after making such determination setting forth the reason(s) therefor.
"Relevant Date" means, in respect of any payment, whichever is
the later of (i) the date on which such payment first becomes due and (ii) if
the full amount payable has not been received in The City of New York by the
Book-Entry Depositary or the Trustee on or prior to such due date, the date on
which, the full amount having been so received, notice to that effect shall have
been given to the bearer hereof in accordance with the Indenture.
References to principal of, and premium or interest in respect
of, this Security or any payments pursuant to the Guarantee of this Security
shall be deemed to include any Additional Amounts which may be payable as set
forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts
(or a certified copy of the official receipts) evidencing payment of the
Gross-Up Taxes. Copies of such receipts shall be made available to the Holder of
this Security upon request.
All notices regarding the Securities of this Series shall be
published in a leading English language daily newspaper of general circulation
in London. Furthermore, so long as the Securities of this series are listed on
the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, notices to Holders of Securities of this series will also be published
in a leading newspaper having general circulation in Luxembourg (which is
expected to be the Luxemburger Wort).
A-5
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
A-6
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by an authorized signatory of the Company.
YORKSHIRE POWER FINANCE 2 LIMITED
By____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By____________________________________
Authorized Signatory
Dated:
A-7
[Form of Reverse of Security]
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of February 1, 2000 (herein called
the "Original Indenture"), among the Company, Yorkshire Power Group Limited, as
guarantor (the "Guarantor"), and The Bank of New York, as trustee, principal
paying agent, registrar and transfer agent (herein called the "Trustee", which
term includes any successor trustee under the Indenture), as supplemented by the
First Supplemental Indenture, dated as of February 16, 2000 (the "First
Supplemental Indenture"; together with the Original Indenture and any other
supplements thereto, the "Indenture"), among the Company, the Guarantor and the
Trustee to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to (pound)155,000,000; provided, however,
that upon a Conversion Event, such aggregate principal amount shall be limited
to $250,000,000.
Certain provisions with respect to the interest rate reset
procedures for the Securities after the Initial Reset Date set forth below are
contained in a Remarketing Agreement (the "Remarketing Agreement") between the
Company, the Guarantor and Warburg Dillon Read LLC, as Remarketing Agent (the
"Remarketing Agent").
In accordance with the procedures established in the
Remarketing Agreement and subject to Section 212 of the First Supplemental
Indenture, the interest rate in effect with respect to the Securities
immediately prior to the Initial Reset Date shall be reset on the Initial Reset
Date to equal the Interest Rate to Maturity which shall be effective from and
including the Initial Reset Date to but excluding the final maturity of the
Securities, unless the Company shall exercise the Floating Rate Option in
accordance with the provisions herein. If the Company shall have so exercised
the Floating Rate Option, then the Floating Period Interest Rate shall be reset
in accordance with the Remarketing Agreement on the Reset Date corresponding to
the Floating Rate Period Termination Date to equal the Interest Rate to
Maturity, which shall be effective from and including such Reset Date to but
excluding the final maturity of the Securities.
During the period from and including the Fixed Rate Reset Date
to but excluding the final maturity of the Securities, interest on the
Securities shall accrue on principal amount of the Securities at the Interest
Rate to Maturity and shall be payable semi-annually on each Interest Payment
Date, commencing with the first such Interest Payment Date following the Fixed
Rate Reset Date; provided, however, that, if any such Interest Payment Date is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay). Interest on the Securities from the
Fixed Rate Reset Date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
A-8
In accordance with procedures established in the Remarketing
Agreement and subject to Section 212 of the First Supplemental Indenture, if the
Company exercises the Floating Rate Option no later than the seventh Business
Day prior to the Floating Rate Spread Determination Date by providing notice to
the Trustee and Remarketing Agent, then the Securities shall bear interest at
the Floating Period Interest Rate for each Floating Rate Reset Period in the
Floating Rate Period.
During each Floating Rate Reset Period in the Floating Rate
Period, interest on the Securities shall accrue on the Floating Rate Purchase
Price at the Floating Period Interest Rate for such Floating Rate Reset Period
and shall be payable quarterly on each Interest Payment Date, commencing with
the first such Interest Payment Date following the Initial Reset Date. The
Interest Amount for such Floating Rate Reset Period shall be determined by (A)
applying the Floating Period Interest Rate for such Floating Rate Reset Period
to the Floating Rate Purchase Price and (B) multiplying that amount by the
actual number of days in such Floating Rate Reset Period divided by 365 (or, if
such Floating Rate Reset Period ends after February 28 in a leap year, 366)
expressed as a decimal and rounded upward if necessary to the nearest 1/16th of
1%.
If the Callholder shall have purchased the Securities pursuant
to the Call Option Agreement and the Company shall have elected the Floating
Rate Option, the Securities shall be automatically tendered, or deemed tendered,
by the Holders thereof to the Remarketing Agent for purchase on the Floating
Rate Period Termination Date. On the Reset Date corresponding to the Floating
Rate Period Termination Date, the interest rate on the Securities shall be reset
to equal the Interest Rate to Maturity in accordance with, and the Securities
shall be remarketed pursuant to, the Remarketing Agreement.
The purchase price for the Securities tendered pursuant to the
paragraph above shall equal 100% of the Floating Rate Purchase Price plus
accrued and unpaid interest, if any, thereon to but excluding the Floating Rate
Period Termination Date. If for any reason the Remarketing Agent does not
purchase all of the Securities on the Floating Rate Period Termination Date, the
Company shall redeem the Securities on the Floating Rate Period Termination Date
at a redemption price equal to 100% of the Floating Rate Purchase Price plus
accrued and unpaid interest, if any, thereon to but excluding the Floating Rate
Period Termination Date. If the Remarketing Agent elects to purchase the
Securities, such obligation of the Remarketing Agent is subject to the
conditions set forth in the Remarketing Agreement.
In the event that the Callholder (i) has not given notice on
or before January 10, 2005 of its intention to exercise the call option under
the Call Option Agreement or (ii) fails to pay on or before the Business Day
next preceding the Early Redemption Date the call price required under the Call
Option Agreement, the Company shall redeem on February 15, 2005 (such date,
unless it is not a Business Day, in which case the next succeeding day that is a
Business day, the "Early Redemption Date"), in whole but not in part, the
Securities at a redemption price equal to 100% of the aggregate principal amount
of the Securities plus accrued and unpaid interest thereon to but excluding the
Early Redemption Date, upon written notice by 5:00 p.m. London time on the
Business Day next preceding Early Redemption Date from the Book-Entry
Depository, as holder of the Securities.
A-9
Any such written notice given by the Book-Entry Depository, as
holder of the Securities, shall be irrevocable; provided, however, that if prior
to the Early Redemption Date an Event of Default shall have occurred and be
continuing, such holder, at its option, may elect by written notice to the
Company, to withdraw such instruction and instead to declare the Securities to
be due and payable pursuant to Section 502 of the Original Indenture.
If the Callholder shall have purchased the Securities pursuant
to the Call Option Agreement and the Company shall have elected the Floating
Rate Option, the Company shall be required to redeem the Securities, in whole
but not in part, on any Reset Date following the Initial Reset Date at a
redemption price equal to the Floating Rate Purchase Price plus accrued and
unpaid interest, if any, thereon to but excluding such Reset Date in the event
that (i) the Remarketing Agent for any reason does not notify the Company of the
Floating Period Interest Rate for the Floating Rate Reset Period beginning on
such Reset Date by 4:00 p.m. (London time) on such Reset Date or of the Interest
Rate to Maturity by 4:00 p.m., (London time) on the Fixed Rate Determination
Date, as applicable, (ii) prior to any such Reset Date, the Remarketing Agent
resigns and no successor has been appointed on or before such Reset Date or
Determination date, as applicable, (iii) the Remarketing Agent elects to
terminate the Remarketing Agreement in accordance with its terms, (iv) the
Remarketing Agent for any reason does not elect (by notice to the Company and
the Trustee not later than the Fixed Rate Determination Date) to purchase the
Securities for remarketing on the Floating Rate Period Termination Date, (v) the
Remarketing Agent for any reason does not deliver the purchase price of the
Securities to or through DTC on or before the Floating Rate Period Termination
Date as provided in the Remarketing Agreement or (vi) the Company for any reason
fails to redeem the Securities following the Company's election to effect such
redemption as set forth in paragraph (c) of this Section 212.
If the Callholder shall have purchased the Securities pursuant
to the Call Option Agreement and the Company shall have elected the Floating
Rate Option, the Company shall notify the Callholder, the Remarketing Agent and
the Trustee, not later than the Business Day immediately preceding the Floating
Rate Period Termination Date, if the Company irrevocably elects to exercise its
right to redeem the Senior Notes, in whole but not in part, from the Remarketing
Agent on the Floating Rate Period Termination Date. If the Company elects to
redeem the Securities, the Company shall redeem the Securities in whole at a
redemption price equal to the Floating Rate Purchase Price plus accrued and
unpaid interest, if any, thereon to but excluding the Floating Rate Period
Termination Date.
The tender and settlement procedures set forth above,
including provisions for payment by purchasers of the Securities to any
remarketing agent or for payment of the Securities, may be modified to the
extent required by DTC or to the extent required to facilitate the tender and
remarketing of the Securities at the time of the remarketing. In addition, the
Remarketing Agent may, without the consent of holders of the Securities, modify
the tender and settlement procedures specified above in order to facilitate the
tender and settlement process.
Unless the Company defaults in payment of the redemption
price, from and after a redemption date, the Securities of this series or
portions thereof called for redemption will cease to bear interest, and the
Holders thereof will have no right in respect of such Securities of this series
except the right to receive the redemption price thereof.
A-10
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of the Securities and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Securities shall
occur and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture. At any time
after such declaration of acceleration with respect to the Securities has been
made, but before a judgment or decree for payment of money has been obtained by
the Trustee as provided in the Indenture, if all Events of Default with respect
to the Securities have been cured or waived (other than the non-payment of
principal of the Securities which has become due solely by reason of such
declaration of acceleration) then such declaration of acceleration and its
consequences shall be automatically annulled and rescinded.
This Security is subject to redemption in whole but not in
part upon not less than 30 nor more than 60 days' notice given as provided in
the Indenture, at a price equal to the outstanding principal amount thereof,
together with Additional Amounts, if any, and accrued interest, if any, to the
Redemption Date if, (a) the Company or the Guarantor satisfies the Trustee prior
to the giving of such notice that it has or will become obligated to pay
Additional Amounts as a result of either (i) any change in, or amendment to, the
laws or regulations of a Taxing Jurisdiction, or any change in the application
or interpretation of such laws or regulations, which change or amendment becomes
effective on or after February 16, 2000 (or, in the case of any jurisdiction
other than a Taxing Jurisdiction, any such change or amendment that becomes
effective on or after the date on which the Company or the Guarantor, as the
case may be, is merged into, or conveyed or transferred or leased its properties
and assets substantially as an entirety to, any Person that is organized under
the laws of, or is managed or controlled or has a place of business in, such
jurisdiction) or (ii) the issuance of Definitive Registered Securities pursuant
to any of clauses (a), (b) or (d) of the third following paragraph and (b) such
obligation cannot be avoided by the Company or the Guarantor taking reasonable
measures available to it, subject, as provided in the Indenture, to the delivery
by the Company or the Guarantor of an Officers' Certificate stating that such
obligation to pay Additional Amounts cannot be avoided by the Company or the
Guarantor taking reasonable measures available to it.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the Indenture or any
supplemental indenture or the rights and obligations of the Company and the
rights of the Holders of the Securities of all series to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding of all series to be affected (voting as a class). The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
A-11
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
premium, if any, and interest in respect of this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable, in whole or, in the case
of clause (d) below, in part as provided in the Indenture, for Definitive
Registered Securities registered in the names of Persons other than the
Book-Entry Depositary with respect to such series or its nominee only as
provided in this paragraph. This Security shall be so exchangeable if (a) DTC
notifies the Company and the Book-Entry Depositary that it is unwilling or
unable to continue to hold the Book-Entry Interests or at any time ceases to be
a "clearing agency" registered as such under the Exchange Act and in either
case, a successor is not appointed by the Company within 120 days, (b) the
Book-Entry Depositary for the Securities of this series notifies the Company
that it is unwilling or unable to continue as Book-Entry Depositary with respect
to this Security and no successor is appointed within 120 days, (c) the Company
executes and delivers to the Trustee an Officers' Certificate providing that
this Security shall be so exchangeable, (d) the Company receives an Optional
Definitive Securities Request or (e) while this Security is subject to the
transfer restrictions set forth in the Restricted Securities Legend hereon, on
or after the Initial Reset Date the Book-Entry Interests cease to be eligible
for DTC services because this Security is neither (i) rated in one of the top
four categories by a nationally recognized statistical rating organization nor
(ii) included within a self-regulatory organization system approved by the
Commission for the reporting of quotations and trade information of securities
eligible for trade pursuant to Rule 144A, such as the PORTAL system. Securities
so issued in exchange for this Security shall be of the same series, having the
same interest rate, if any, and maturity and having the same terms as this
Security, in authorized denominations and in the aggregate having the same
principal amount as this security and registered in such names as the Book-Entry
Depositary for this Security shall direct.
The bearer of this Security shall be treated as the owner of
it for all purposes, subject to the terms of the Indenture. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such exchange, but the
Company may payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
When a successor assumes all the obligations of its
predecessor under the Securities of this series and the Indenture in accordance
with the terms of the Indenture, the predecessor will be released from those
obligations.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities of this series and
may otherwise deal with the Company, the Guarantor or their respective
Affiliates as if it were not the Trustee.
A-12
No stockholder, director, officer, employee, incorporator or
Affiliate of the Company or the Guarantor shall have any liability for any
obligation of the Company or the Guarantor under the Securities of this series
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of the Securities of this series by
accepting Securities of this series waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities of this series.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities of this series as a convenience to the Holders
of the Securities of this series. No representation is made as to the accuracy
of such numbers as printed on the Securities of this series and reliance may be
placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
GUARANTEE
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private
limited company duly incorporated and existing under the laws of England and
Wales (the "Guarantor", which term includes any successor Person under the
Indenture referred to in the Security on which this notation is endorsed),
hereby fully and unconditionally guarantees to the Holder of the accompanying
Security issued by Yorkshire Power Finance 2 Limited (the "Company"), pursuant
to the terms of the Guarantee contained in Article Fourteen of the Indenture,
the due and punctual payment of the principal of, and premium, if any, and
interest in respect of this Security (and any Additional Amounts payable in
respect thereof), when and as the same shall become due and payable, whether at
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, in accordance with the terms of this Security and the Indenture. In
case of the failure of the Company punctually to pay any such principal,
premium, if any, or interest, the Guarantor hereby agrees to cause such payment
to be made punctually when and as the same shall become due and payable as if
such payment were made by the Company.
The obligations of the Guarantor to the Holders of the
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article Fourteen of the Indenture, and reference is
hereby made to such Article and Indenture for the precise terms of the
Guarantee.
A-13
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which this notation
of the Guarantee is endorsed shall have been executed by the Trustee or the
authenticating agent under the Indenture by the manual signature of one of its
authorized officers.
YORKSHIRE POWER GROUP LIMITED
By:_____________________________
Authorized Signatory
A-14
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
The initial aggregate principal amount of Securities evidenced
by the Certificate to which this Schedule is attached is ___________. The
notations on the following table evidence decreases and increases in the
aggregate principal amount of Securities evidenced by such Certificate.
Aggregate
Principal
Decrease in Amount of
Aggregate Increase in Securities
Principal Aggregate Remaining After Notation by
Date of Amount of Principal amount Such Decrease or Security
Adjustment Securities of Securities Increase Registrar
A-15
EXHIBIT B
[FORM OF FACE OF DEFINITIVE REGISTERED SECURITY
[If the Definitive Registered Security is a Restricted
Security, insert the Restricted Securities Legend
set forth in Exhibit A hereto.]
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
No. _______________ (pound) 155,000,000*
CUSIP No.:
YORKSHIRE POWER FINANCE 2 LIMITED, a limited liability company
incorporated under the laws of the Cayman Islands (herein called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to [name of registered
owner], or its registered assigns, the principal sum of ONE HUNDRED FIFTY FIVE
MILLION POUNDS STERLING on February 15, 2020, and to pay interest thereon at the
rate or rates per annum described herein from February 16, 2000, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on February 15 and August 15 in each year,
commencing August 15, 2000, to the Initial Reset Date and thereafter subject to
the terms and conditions set forth herein, at the interest rate or rates
determined by the Remarketing Agent in accordance with the procedures set forth
on the reverse hereof, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth day (whether or not a Business Day)
immediately preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered on such Regular Record Date and may be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
- -----------------------------------
*Reference is made to (i) Schedule A attached hereto with respect to
decreases and increases in the aggregate principal amount of Securities
evidenced by this certificate and (ii) the other provisions of this
Security providing for the conversion to a US Dollar denominated Security.
B-1
The per annum interest rate on the Securities for each
Interest Accrual Period through the Initial Reset Date will be reset
semi-annually based on procedures set forth below and established in the
Indenture; provided, however, that upon the occurrence of a Conversion Event,
this Security will convert to a US Dollar denominated Security as provided in
the Indenture.
The rate of interest payable from time to time through the
Initial Reset Date in respect of this Security for any Interest Accrual Period
(the "Rate of Interest") will be determined on the basis of the following
provisions:
(i) on the first day of such Interest Accrual Period (the
"Interest Determination Date"), the Agent Bank will determine the
Screen Rate for six-month Sterling deposits at or about 11:00 a.m.
(London time) on the Interest Determination Date. If such Screen Rate
is unavailable, the Agent Bank will request the principal London office
of each of the Reference Banks to provide the Agent Bank with its
offered quotation to leading banks for Sterling deposits in the London
interbank market for such Interest Accrual Period at or about 11:00
a.m. (London time) on the Interest Determination Date. The Rate of
Interest for such Interest Accrual Period shall be such Screen Rate
plus 0.805% per annum (the "Margin") or, if such Screen Rate is
unavailable, the arithmetic average (rounded upwards if necessary to
the nearest 1/16th of 1%) of the offered quotations provided by the
Reference Banks (excluding the highest and lowest (or, in either case,
if more than one, then only one of them) of such quotations) plus the
Margin;
(ii) if on the Interest Determination Date such Screen Rate is
unavailable and only four of the Reference Banks provide offered
quotations, the Rate of Interest for such Interest Accrual Period shall
be determined in accordance with the provisions of paragraph (i) above
on the basis of the offered quotations of those Reference Banks
providing the offered quotations (excluding the highest and lowest of
such quotations as provided in paragraph (i) above);
(iii) if on the Interest Determination Date such Screen Rate
is unavailable and only two or three of the Reference Banks provide
offered quotations, the Rate of Interest for such Interest Accrual
Period shall be determined in accordance with the provisions of
paragraph (i) above on the basis of the offered quotations of those
Reference Banks providing the offered quotations (but without excluding
the highest and lowest of such quotations as provided in paragraph (i)
above); and
(iv) if on the Interest Determination Date such Screen Rate is
unavailable and only one or none of the Reference Banks provides an
offered quotation, then the Rate of Interest for such Interest Accrual
Period shall be (a) the Rate of Interest in effect for that Interest
Accrual Period to which paragraph (i), (ii) or (iii) above shall have
applied which last preceded such Interest Accrual Period or (b) if
determinable and if higher, the Reserve Interest Rate. The "Reserve
Interest Rate" (as defined below) shall be the rate per annum which the
Agent Bank determines to be either (A) the arithmetic average (rounded
upward if necessary to the nearest 1/16th of 1%) of the Sterling
lending rates for loans in an amount approximately equal to the
principal amount of the Securities which London banks selected by the
B-2
Agent Bank are quoting, at or about 11:00 a.m. (London time) on the
Interest Determination Date, for such Interest Accrual Period, to the
Reference Banks or those of them (being at least two in number) to
which the quotations are, in the opinion of the Agent Bank, being so
made plus the Margin or (B) if the Agent Bank cannot determine the
arithmetic average, the lowest Sterling lending rate which four London
banks selected by the Agent Bank are quoting, on the Interest
Determination Date, for such Interest Accrual Period, to leading
European banks plus the Margin.
The Interest Amount shall be determined by (I) applying the
Rate of Interest for such Interest Accrual Period to the principal amount of the
Securities and (ii) multiplying that amount by the actual number of days in such
Interest Accrual Period divided by 365 (or if such Interest Accrual Period ends
after February 28 in a leap year, 366) expressed as a decimal and rounded upward
if necessary to the nearest 1/16th of 1%.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof relating to the interest reset and
remarketing mechanics of this Security after the Initial Reset Date.
All payments in respect of this Security and all payments made
pursuant to the Guarantee of this Security shall be made in immediately
available funds at or through the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, and for so long
as this Security shall be listed on the Luxembourg Stock Exchange, in
Luxembourg, in such coin or currency of the United Kingdom or the United States
of America, as the case may be, as at the time of payment is legal tender for
the payment of public and private debt. The Trustee shall make
Sterling-denominated payments on the Senior Notes through a London-based account
of the Trustee.
All payments of principal of, and premium, if any, and
interest in respect of this Security and all payments made pursuant to the
Guarantee of this Security shall be made free and clear of, and without
withholding or deduction for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or within a Taxing Jurisdiction or by or
within any political subdivision thereof or any authority therein or thereof
having power to tax ("Gross-Up Taxes"), unless such withholding or deduction is
required by law. In the event of any such withholding or deduction, the Company
or the Guarantor, as the case may be, shall pay to the Holder such additional
amounts in respect of such withholding or reduction as are necessary so that the
Holder receives the amount that would have been due in the absence of such
withholding or deduction ("Additional Amounts"), except that no such Additional
Amounts shall be payable:
(a) to, or to a Person on behalf of, a Holder who is liable
for such Gross-Up Taxes in respect of this Security or the Guarantee of
this Security by reason of such Holder or beneficial owner having some
connection with the relevant Taxing Jurisdiction (including being a
citizen or resident or national of, or carrying on a business or
maintaining a permanent establishment in, or being physically present
in, such Taxing Jurisdiction) other than the mere holding of this
Security or the receipt of principal of, and premium, if any, and
interest in respect thereon or in respect of the Guarantee of this
Security;
B-3
(b) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) for payment more than 30
days after the Relevant Date except to the extent that the Holder would
have been entitled to such Additional Amounts on presenting this
Security for payment on the last day of such period of 30 days;
(c) to, or to a Person on behalf of, a Holder who presents
this Security (where presentation is required) in a Taxing Jurisdiction
or, so long as the Senior Notes are listed on the Luxembourg Stock
Exchange, in Luxembourg;
(d) to, or to a Person on behalf of, a Holder who would not be
liable or subject to the withholding or deduction by making a
declaration of nonresidence or similar claim for exemption to the
relevant Taxing Jurisdiction; or
(e) to, or to a Person on behalf of, a Holder of a Registered
Security that is not a Global Security issued pursuant to the request
of any beneficial owner of an interest in the Security (an "Optional
Definitive Security Request") following and during the continuance of
an Event of Default if such Holder (or any predecessor Holder) was an
owner requesting that such Registered Securities be so issued.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security (or any interest therein) been the Holder
of the Security, such owner would not have been entitled to payment of
Additional Amounts by reason of any one or more of clauses (a) through (e)
above. If the Company or the Guarantor, as applicable, shall determine that
Additional Amounts will not be payable because of the immediately preceding
sentence, the Company or the Guarantor, as applicable, will inform such Holder
promptly after making such determination setting forth the reason(s) therefor.
"Relevant Date" means, in respect of any payment, whichever is
the later of (i) the date on which such payment first becomes due and (ii) if
the full amount payable has not been received in The City of New York by the
Book-Entry Depositary or the Trustee on or prior to such due date, the date on
which, the full amount having been so received, notice to that effect shall have
been given to the bearer hereof in accordance with the Indenture.
References to principal of, and premium or interest in respect
of, this Security or any payments pursuant to the Guarantee of this Security
shall be deemed to include any Additional Amounts which may be payable as set
forth in the Indenture or in this Security.
The Company shall furnish to the Trustee the official receipts
(or a certified copy of the official receipts) evidencing payment of the
Gross-Up Taxes. Copies of such receipts shall be made available to the Holder of
this Security upon request.
All notices regarding the Securities of this Series shall be
published in a leading English language daily newspaper of general circulation
in London. Furthermore, so long as the Securities of this series are listed on
the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, notices to Holders of Securities of this series will also be published
in a leading newspaper having general circulation in Luxembourg (which is
expected to be the Luxemburger Wort).
B-4
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
B-5
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by an authorized signatory of the Company.
YORKSHIRE POWER FINANCE 2 LIMITED
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:____________________________________
Authorized Signatory
Dated:
B-6
[Form of Reverse of Security]
YORKSHIRE POWER FINANCE 2 LIMITED
Reset Senior Notes Due February 15, 2020
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of February 1, 2000 (herein called
the "Original Indenture"), among the Company, Yorkshire Power Group Limited, as
guarantor (the "Guarantor"), and The Bank of New York, as trustee, principal
paying agent, registrar and transfer agent (herein called the "Trustee", which
term includes any successor trustee under the Indenture), as supplemented by the
First Supplemental Indenture, dated as of February 16, 2000 (the "First
Supplemental Indenture"; together with the Original Indenture and any other
supplements thereto, the "Indenture"), among the Company, the Guarantor and the
Trustee to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to (pound)155,000,000; provided, however,
that upon a Conversion Event, such aggregate principal amount shall be limited
to $250,000,000.
Certain provisions with respect to the interest rate reset
procedures for the Securities after the Initial Reset Date set forth below are
contained in a Remarketing Agreement (the "Remarketing Agreement") between the
Company, the Guarantor and UBS AG, London Branch or any affiliate thereof, as
Remarketing Agent (the "Remarketing Agent").
In accordance with the procedures established in the
Remarketing Agreement and subject to Section 212 of the First Supplemental
Indenture, the interest rate in effect with respect to the Securities
immediately prior to the Initial Reset Date shall be reset on the Initial Reset
Date to equal the Interest Rate to Maturity which shall be effective from and
including the Initial Reset Date to but excluding the final maturity of the
Securities, unless the Company shall exercise the Floating Rate Option in
accordance with the provisions herein. If the Company shall have so exercised
the Floating Rate Option, then the Floating Period Interest Rate shall be reset
in accordance with the Remarketing Agreement on the Reset Date corresponding to
the Floating Rate Period Termination Date to equal the Interest Rate to
Maturity, which shall be effective from and including such Reset Date to but
excluding the final maturity of the Securities.
During the period from and including the Fixed Rate Reset Date
to but excluding the final maturity of the Securities, interest on the
Securities shall accrue on principal amount of the Securities at the Interest
Rate to Maturity and shall be payable semi-annually on each Interest Payment
Date, commencing with the first such interest Payment Date following the Fixed
Rate Reset Date; provided, however, that, if any such Interest Payment Date is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay). Interest on the Securities from the
Fixed Rate Reset Date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
B-7
In accordance with procedures established in the Remarketing
Agreement and subject to Section 212 of the First Supplemental Indenture, if the
Company exercises the Floating Rate Option no later than the seventh Business
Day prior to the Floating Rate Spread determination Date by providing notice to
the Trustee and Remarketing Agent, then the Securities shall bear interest at
the Floating Period Interest Rate for each Floating Rate Reset Period in the
Floating Rate Period.
During each Floating Rate Reset Period in the Floating Rate
Period, interest on the Securities shall accrue on the Floating Rate Purchase
Price at the Floating Period Interest Rate for such Floating Rate Reset Period
and shall be payable quarterly on each Interest Payment Date, commencing with
the first such Interest Payment Date following the Initial Reset Date. The
Interest Amount for such Floating Rate Reset Period shall be determined by (A)
applying the Floating Period Interest Rate for such Floating Rate Reset Period
to the Floating Rate Purchase Price and (B) multiplying that amount by the
actual number of days in such Floating Rate Reset Period divided by 365 (or, if
such Floating Rate Reset Period ends after February 28 in a leap year, 366)
expressed as a decimal and rounded upward if necessary to the nearest 1/16th of
1%.
If the Callholder shall have purchased the Securities pursuant
to the Call Option Agreement and the Company shall have elected the Floating
Rate Option, the Securities shall be automatically tendered, or deemed tendered,
by the Holders thereof to the Remarketing Agent for purchase on the Floating
Rate Period Termination Date. On the Reset Date corresponding to the Floating
Rate Period Termination Date, the interest rate on the Securities shall be reset
to equal the Interest Rate to Maturity in accordance with, and the Securities
shall be remarketed pursuant to, the Remarketing Agreement.
The purchase price for the Securities tendered pursuant to the
paragraph above shall equal 100% of the Floating Rate Purchase Price plus
accrued and unpaid interest, if any, thereon to but excluding the Floating Rate
Period Termination Date. If for any reason the Remarketing Agent does not
purchase all of the Securities on the Floating Rate Period Termination Date, the
Company shall be required to redeem the Securities at a redemption price equal
to 100% of the Floating Rate Purchase Price plus accrued and unpaid interest, if
any, thereon to but excluding the Floating Rate Period Termination Date. If the
Remarketing Agent elects to purchase the Securities, such obligation of the
Remarketing Agent is subject to the conditions set forth in the Remarketing
Agreement.
In the event that the Callholder (i) has not given notice on
or before January 10, 2005 of its intention to exercise the call option under
the Call Option Agreement or (ii) fails to pay on or before the Business Day
next preceding the Early Redemption Date the call price required under the Call
Option Agreement, the Company shall redeem on February 15, 2005 (such date,
unless it is not a Business Day, in which case the next succeeding day that is a
Business day, the "Early Redemption Date"), in whole but not in part, the
Securities at a redemption price equal to 100% of the aggregate principal amount
of the Securities plus accrued and unpaid interest thereon to but excluding the
Early Redemption Date, upon written notice by 5:00 p.m. London time on the
Business Day next preceding Early Redemption Date from the Book-Entry
Depository, as holder of the Securities.
B-8
Any such written notice given by the Book-Entry Depository, as
holder of the Securities, shall be irrevocable; provided, however, that if prior
to the Early Redemption Date an Event of Default shall have occurred and be
continuing, such holder, at its option, may elect by written notice to the
Company, to withdraw such instruction and instead to declare the Securities to
be due and payable pursuant to Section 502 of the Original Indenture.
If the Callholder shall have purchased the Securities pursuant
to the Call Option Agreement and the Company shall have elected the Floating
Rate Option, the Company shall be required to redeem the Securities, in whole
but not in part, on any Reset Date following the Initial Reset Date at a
redemption price equal to the Floating Rate Purchase Price plus accrued and
unpaid interest, if any, thereon to but excluding such Reset Date in the event
that (i) the Remarketing Agent for any reason does not notify the Company of the
Floating Period Interest Rate for the Floating Rate Reset Period beginning on
such Reset Date by 4:00 p.m. (London time) on such Reset Date or of the Interest
Rate to Maturity by 4:00 p.m., (London time) on the Fixed Rate Determination
Date, as applicable, (ii) prior to any such Reset Date, the Remarketing Agent
resigns and no successor has been appointed on or before such Reset Date or
Determination date, as applicable, (iii) the Remarketing Agent elects to
terminate the Remarketing Agreement in accordance with its terms, (iv) the
Remarketing Agent for any reason does not elect (by notice to the Company and
the Trustee not later than the Fixed Rate Determination Date) to purchase the
Securities for remarketing on the Floating Rate Period Termination Date, (v) the
Remarketing Agent for any reason does not deliver the purchase price of the
Securities to or through DTC on or before the Floating Rate. Period Termination
Date as provided in the Remarketing Agreement or (vi) the Company for any reason
fails to redeem the Securities following the Company's election to effect such
redemption as set forth in paragraph (c) of this Section 212.
If the Callholder shall have purchased the Securities pursuant
to the Call Option Agreement and the Company shall have elected the Floating
Rate Option, the Company shall notify the Callholder, the Remarketing Agent and
the Trustee, not later than the Business Day immediately preceding the Floating
Rate Period Termination Date, if the Company irrevocably elects to exercise its
right to redeem the Senior Notes, in whole but not in part, from the Remarketing
Agent on the Floating Rate Period Termination Date. If the Company elects to
redeem the Securities, the Company shall redeem the Securities on the Floating
Rate Period Termination Date in whole at a redemption price equal to the
Floating Rate Purchase Price plus accrued and unpaid interest, if any, thereon
to but excluding the Floating Rate Period Termination Date.
The tender and settlement procedures set forth above,
including provisions for payment by purchasers of the Securities to any
remarketing agent or for payment of the Securities, may be modified to the
extent required by DTC or to the extent required to facilitate the tender and
remarketing of the Securities at the time of the remarketing. In addition, the
Remarketing Agent may, without the consent of holders of the Securities, modify
the tender and settlement procedures specified above in order to facilitate the
tender and settlement process.
Unless the Company defaults in payment of the redemption
price, from and after a redemption date, the Securities of this series or
B-9
portions thereof called for redemption will cease to bear interest, and the
Holders thereof will have no right in respect of such Securities of this series
except the right to receive the redemption price thereof.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of the Securities and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Securities shall
occur and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture. At any time
after such declaration of acceleration with respect to the Securities has been
made, but before a judgment or decree for payment of money has been obtained by
the Trustee as provided in the Indenture, if all Events of Default with respect
to the securities have been cured or waived (other than the non-payment of
principal of the Securities which has become due solely by reason of such
declaration of acceleration) then such declaration of acceleration and its
consequences shall be automatically annulled and rescinded.
This Security is subject to redemption in whole but not in
part upon not less than 30 nor more than 60 days' notice given as provided in
the Indenture, at a price equal to the outstanding principal amount thereof,
together with Additional Amounts, if any, and accrued interest, if any, to the
Redemption Date if (a) the Company or the Guarantor satisfies the Trustee prior
to the giving of such notice that it has or will become obligated to pay
Additional Amounts as a result of either (i) any change in, or amendment to, the
laws or regulations of a Taxing Jurisdiction, or any change in the application
or interpretation of such laws or regulations, which change or amendment becomes
effective on or after February 16, 2000 (or, in the case of any jurisdiction
other than a Taxing Jurisdiction, any such change or amendment that becomes
effective on or after the date on which the Company or the Guarantor, as the
case may be, is merged into, or conveyed or transferred or leased its properties
and assets substantially as an entirety to, any Person that is organized under
the laws of, or is managed or controlled or has a place of business in, such
jurisdiction) or (ii) the issuance of Definitive Registered Securities as a
result of: (A) DTC having notified the Company and the Book-Entry Depositary
that it was unwilling or unable to continue to hold the Book-Entry Interest or
at any time ceasing to be "a clearing agency" registered as such under the
Securities Exchange Act of 1934 and, in either case, a successor is not being
appointed by the Company within 120 days; (B) the Book-Entry Depositary for the
Securities of this series having notified the Company that it was unwilling or
unable to continue as Book-Entry Depositary with respect to a Global security of
this series and no successor Book-Entry Depositary having been appointed by the
Company within 120 days or (C) an Event of Default with respect to the
Securities of this series having occurred and being continuing and a Holder, in
such circumstance, having requested in writing that a Global Bearer Security of
this series be exchanged for one or more Definitive Registered Securities and
(b) such obligation cannot be avoided by the Company or the Guarantor taking
reasonable measures available to it, subject, as provided in the indenture, to
the delivery by the Company or the Guarantor of an Officers' Certificate stating
that such obligation to pay Additional Amounts cannot be avoided by the Company
or the Guarantor taking reasonable measures available to it.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the Indenture or any
supplemental indenture or the rights and obligations of the Company and the
rights of the Holders of the Securities of all series to be affected under the
B-10
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding of all series to be affected (voting as a class). The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
premium, if any, and interest in respect of this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
When a successor assumes all the obligations of its
predecessor under the Securities of this series and the Indenture in accordance
with the terms of the Indenture, the predecessor will be released from those
obligations.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities of this series and
may otherwise deal with the Company, the Guarantor or their respective
Affiliates as if it were not the Trustee.
No stockholder, director, officer, employee, incorporator or
Affiliate of the Company or the Guarantor shall have any liability for any
obligation of the Company or the Guarantor under the Securities of this series
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations of their creation. Each Holder of the Securities of this series by
accepting Securities of this series waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Securities of this series.
B-11
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
Customary abbreviations may be used in the name of a Holder of
a Securities of this series or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities of this series as a convenience to the Holders
of the Securities of this series. No representation is made as to the accuracy
of such numbers as printed on the Securities of this series and reliance may be
placed only on the other identification numbers printed hereon.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
GUARANTEE
FOR VALUE RECEIVED, YORKSHIRE POWER GROUP LIMITED, a private
limited company duly incorporated and existing under the laws of England and
Wales (the "Guarantor", which term includes any successor Person under the
Indenture referred to in the Security on which this notation is endorsed),
hereby fully and unconditionally guarantees to the Holder of the accompanying
Security issued by Yorkshire Power 2 Finance Limited (the "Company'), pursuant
to the terms of the Guarantee contained in Article Fourteen of the Indenture,
the due and punctual payment of the principal of, and premium, if any, and
interest in respect of this Security (and any Additional Amounts payable in
respect thereof), when and as the same shall become due and payable, whether at
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, in accordance with the terms of this Security and the Indenture. In
case of the failure of the Company punctually to pay any such principal,
premium, if any, or interest, the Guarantor hereby agrees to cause such payment
to be made punctually when and as the same shall become due and payable as if
such payment were made by the Company.
The obligations of the Guarantor to the Holders of the
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article Fourteen of the Indenture, and reference is
hereby made to such Article and Indenture for the precise terms of the
Guarantee.
B-12
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which this notation
of the Guarantee is endorsed shall have been executed by the Trustee or the
authenticating agent under the Indenture by the manual signature of one of its
authorized officers.
YORKSHIRE POWER GROUP LIMITED
By:_______________________________
Authorized Signatory
B-13