Exhibit 1.1
YORKSHIRE CAPITAL TRUST I
(a Delaware Statutory Business Trust)
11,000,000
____% Trust Securities
(Liquidation Amount $25 Per Trust Security)
UNDERWRITING AGREEMENT
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_________, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
[Co-Managers]
As representatives of the several
Underwriters named in Schedule I hereto
x/x Xxxxxxx Xxxxx & Xx.
Xxxxx Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Yorkshire Capital Trust I (the "Trust"), a statutory business trust created
under the Business Trust Act of the State of Delaware (Chapter 38, Title 12 of
the Delaware Code, 12 Del. C. ((S)) 3801 et seq.) (the "Delaware Act"),
Yorkshire Power Finance Limited, a private company with limited liability
incorporated under the laws of the Cayman Islands ("Yorkshire Finance"), and
Yorkshire Power Group Limited, a private company with limited liability
incorporated under the laws of England and Wales ("Yorkshire Group" and,
together with the Trust and Yorkshire Finance, the "Offerors"), confirm their
agreement (this "Agreement") with respect to the issue and sale by the Trust and
the purchase by the underwriters named in Schedule I hereto (the
"Underwriters"), acting severally and not jointly, for whom you are acting as
representatives (in such capacity, you shall hereinafter be referred to as the
"Representatives"), of the number of ___% Trust Securities (Liquidation Amount
$25 Per Trust Security) of the Trust (the "Trust Securities") as set forth next
to each Underwriter's name in Schedule I hereto. The Trust Securities will be
fully and unconditionally guaranteed by Yorkshire Group with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Trust Securities Guarantee") pursuant to, and to the extent set forth in the
Trust Securities Guarantee Agreement (the "Trust Securities Guarantee
Agreement") dated as of _______ 1, 1998 between Yorkshire Group and The Bank of
New York, as guarantee trustee (the "Guarantee Trustee"). The Trust Securities
and the Trust Securities Guarantee are referred to herein as the "Securities."
The Offerors have been advised by the Representatives that the Underwriters
propose to make a public offering of the Trust Securities at the initial public
offering price set forth in Schedule II hereto as soon as in their judgment the
Representatives deem advisable after this Agreement has been executed and
delivered.
The entire proceeds from the sale of the Trust Securities will be used by
the Trust to purchase $275,000,000 aggregate principal amount of __% Junior
Subordinated Deferrable Interest Deferrable Interest Debentures, Series A due
______, 2038 (the "Junior Subordinated Debentures") to be issued by Yorkshire
Finance. The Junior Subordinated Debentures will be irrevocably and
unconditionally guaranteed by Yorkshire Group with respect to interest and
principal, including payments on acceleration, redemption and otherwise (the
"Debentures Guarantee"), pursuant to the terms of the Indenture. Pursuant to an
agreement as to expenses and liabilities, dated as of ____________ 1, 1998 (the
"Agreement as to Expenses and Liabilities"), among AEP Resources, New Century
International Inc., a Delaware corporation ("NCI" and, together with AEP
Resources, the "US Affiliates")), and the Trust, the US Affiliates will
irrevocably and conditionally guarantee to each person or entity to whom the
Trust becomes indebted or liable the full payment of any indebtedness, expenses
or liabilities of the Trust, other than obligations of the Trust to pay to the
Holders, the amounts due such holders pursuant to the terms of the Trust
Securities.
The Trust Securities will be issued pursuant to an Amended and Restated
Trust Agreement, dated as of ___, 1998 (the "Trust Agreement"), among Yorkshire
Group, as holder of the Control Certificate (as defined therein), AEP Resources,
Inc., an Ohio corporation, as Depositor ("AEP Resources"), Xxxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx (collectively, the
"Administrative Trustees"), The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee"), The Bank of New York,
a New York banking corporation, as property trustee (the "Property Trustee" and,
together with the Delaware Trustee and the Administrative Trustees, the
"Trustees"), and the several Holders (as defined therein). The Junior
Subordinated Debentures will be issued pursuant to a Subordinated Indenture,
dated as of ____ 1, 1998 ( the "Base Indenture"), among Yorkshire Group,
Yorkshire Finance and The Bank of New York, as trustee (the "Indenture
Trustee"), and a first supplemental indenture to the Base Indenture, dated as of
____, 1998 (the "Supplemental Indenture" and together with the Base Indenture
and any other amendments or supplements thereto, the "Indenture"), among
Yorkshire Finance, Yorkshire Group and the Indenture Trustee.
The Junior Subordinated Debentures will be issued initially only as a
global debenture in bearer form (the "Global Debentures"). The Global
Debentures will be delivered to the Bank of New York, which will initially hold
the Global Debentures, as depositary (the "Book-Entry Depositary"), for and on
behalf of the Property Trustee for the benefit of the Trust. Pursuant to a
deposit agreement, dated as of ____________ 1, 1998 (the "Deposit Agreement"),
among Yorkshire Finance, the Book-Entry Depositary and the holders and
beneficial owners from time to time of interests in the Book-Entry Interests (as
defined below), the Book-Entry Depositary will issue to the Property Trustee,
for the benefit of the Trust, one or more certificateless depositary interests
(the
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"Book-Entry Interests") representing a 100% beneficial interest in the Global
Debentures and will record the Property Trustee on its books as the initial
registered owner of the Book-Entry Interests.
SECTION 1. SALE TO UNDERWRITERS; UNDERWRITING COMMISSION.
---------------------------------------------
(a) Upon the basis of the representations and warranties and on the terms
and subject to the conditions herein set forth, the Trust agrees to issue and
sell to each Underwriter and each Underwriter, severally and not jointly, agrees
to purchase from the Trust, at the purchase price per security set forth in
Schedule II hereto, the number of Trust Securities set forth opposite such
Underwriter's name in Schedule I hereto plus any additional number of Trust
Securities that such Underwriter may become obligated to purchase pursuant to
the provisions of section 7 hereof.
(b) In view of the fact that the proceeds of the sale of the Trust
Securities will be used to purchase the Junior Subordinated Debentures,
Yorkshire Finance hereby agrees to pay at the Time of Purchase (as defined
below) to Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated ("ML"), for the
accounts of the several Underwriters, as compensation for their arranging the
investment therein of such proceeds a commission per Trust Security as set forth
in Schedule II for the Trust Securities to be delivered by the Trust hereunder
at the Time of Purchase.
SECTION 2. PAYMENT AND DELIVERY.
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(a) Payment for the Trust Securities shall be made to the Trust or its
order by wire transfer of immediately available funds to such account or
accounts as the Trust shall specify in writing to ML no later than the close of
business on the business day prior to the Time of Purchase, or by such other
means as the parties hereto shall agree prior to the Time of Purchase, upon the
delivery of the certificates for the Trust Securities to or for the accounts of
the several Underwriters against receipt therefor signed by ML on behalf of
itself and for the other several Underwriters. Such payment and delivery shall
be made through the facilities of The Depository Trust Company ("DTC") as
provided in Section 2(b) hereof at 10:00 A.M., New York Time, on ______ __, 1998
(or on such later business day, not more than five business days subsequent to
such day, as may be agreed upon by the Representatives and the Offerors), unless
postponed in accordance with the provisions of Section 7 hereof, at the offices
of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as the Trust and the Representatives shall mutually agree
in writing. It is understood that each Underwriter has authorized ML, for its
account, to accept delivery of, receipt for, and make payment for the purchase
price for, the Trust Securities it has agreed to purchase. ML, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Trust Securities to be purchased by
any Underwriter whose funds have not been received by the Time of Purchase, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The time at which such payment and delivery are to be made is herein called the
"Time of Purchase".
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(b) The Trust Securities will be represented by two global certificates in
definitive form and registered in the name of Cede & Co. as the nominee of DTC.
The certificates evidencing the Trust Securities shall be delivered to ML
through the facilities of DTC in New York, New York for the accounts of the
several Underwriters.
(c) At the time of Purchase, Yorkshire Finance will pay, or cause to be
paid, the compensation payable at such time to the Underwriters pursuant to
Section 1 hereof by wire transfer in immediately available funds to an account
designated by ML, for the accounts of the several Underwriters.
(d) With respect to the offering of the Trust Securities, each Underwriter,
severally and not jointly, represents and warrants to, and agrees with, the
Offerors that:
(1) It (i) has not offered or sold and, prior to the date six months
after the Time of Purchase, will not offer or sell any Trust
Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) has complied and will
comply with all applicable provisions of the Financial Services
Xxx 0000 of Great Britain (the "FSA") with respect to anything
done by it in relation to the Trust Securities in, from or
otherwise involving the United Kingdom and (iii) has only issued
or passed on, and will only issue or pass on, in the United
Kingdom any document received by it in connection with the
issuance of the Trust Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 of
Great Britain (Investment Advertisements) (Exemptions) Order 1996
(as amended) or is a person to whom such document may otherwise
be lawfully issued or passed on; and
(2) No invitation has been or will be made to the public in the
Cayman Islands to purchase any Junior Subordinated Debentures or
any Trust Securities, whether directly or indirectly.
SECTION 3. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
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The several obligations of the Underwriters hereunder are subject to the
accuracy at the Time of Purchase of the warranties and representations on the
part of the Offerors, jointly and severally, and to the following other
conditions:
(a) That no stop order suspending the effectiveness of the Registration
Statement (as defined herein) shall be in effect at the Time of
Purchase and no proceeding for that purpose shall be pending before,
or to the knowledge of Yorkshire Group threatened by, the Securities
and Exchange
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Commission (the "Commission") on such date. If filing of the
Preliminary Prospectus or the Prospectus (each as defined herein), or
any supplement thereto, is required pursuant to Rule 424 of the rules
and regulations of the Commission ("Rule 424") under the United States
Securities Act of 1933, (the "Securities Act"), the Preliminary
Prospectus or the Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424.
(b) That all legal proceedings to be taken and all legal opinions to be
rendered in connection with the issuance and sale of the Securities
and the other transactions contemplated hereby shall be satisfactory
in form and substance to the Underwriters and Winthrop, Stimson,
Xxxxxx & Xxxxxxx, counsel to the Underwriters, and each of the
Offerors shall have furnished to such counsel all documents and
information that it may reasonably request to enable it to pass upon
such matters.
(c) That, at the Time of Purchase, the Representatives shall be furnished
with the following opinions, dated the day of the Time of Purchase,
with such changes therein as may be agreed upon by the Trust and the
Representatives with the approval of Winthrop, Stimson, Xxxxxx &
Xxxxxxx, counsel to the Underwriters:
(i) Opinion of Xxxxxxxx Xxxxxx & Finger, P.A., special Delaware
counsel to the Trust, Yorkshire Finance and Yorkshire Group as
to Delaware law, substantially in the form attached hereto as
Exhibit A;
(ii) Opinion of Xxxxx Xxxxxxxxxx LLP, counsel to the Trust,
Yorkshire Finance and Yorkshire Group as to United States law,
substantially in the form attached hereto as Exhibit B;
(iii) Opinion of Xxxxx & Overy, counsel to the Trust, Yorkshire
Finance and Yorkshire Group as to English law, substantially in
the form attached hereto as Exhibit C;
(iv) Opinion of Xxxxxx and Xxxxxx, counsel to Yorkshire Finance as
to Cayman Islands law, substantially in the form attached
hereto as Exhibit D;
(v) Opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel to the
Underwriters, substantially in the form attached hereto as
Exhibit E;
(vi) Opinion of ______________, counsel to the Delaware Trustee,
substantially in the form attached hereto as Exhibit F; and
(vii) Opinion of Xxxxx, Xxxxxx & Xxxxxx LLP, counsel to the Indenture
Trustee, the Property Trustee, the Guarantee Trustee and
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the Book-Entry Depositary, substantially in the form attached
hereto as Exhibit G.
(d) That the Representatives shall have received a letter from Deloitte &
Touche in form and substance satisfactory to the Representatives and
dated the date of the Time of Purchase.
(e) That no amendment or supplement to the Registration Statement or the
Prospectus shall contain material information substantially different
from that contained in the Registration Statement or the Prospectus
which is unsatisfactory in substance to the Representatives or
unsatisfactory in form to Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel
to the Underwriters.
(f) That, at the Time of Purchase, there shall not have been any material
adverse change in the business, properties or financial condition of
the Offerors from that set forth in the Registration Statement or the
Prospectus (other than changes set forth in or contemplated by the
Registration Statement or the Prospectus), and that the Offerors
shall, at the Time of Purchase, have delivered to the Underwriters a
certificate of an Administrative Trustee of the Trust and a
certificate of an officer of Yorkshire Finance and Yorkshire Group to
the effect that, (i) to the best of his knowledge, information and
belief, there has been no such change, (ii) the warranties and
representations on the part of each of the Offerors contained in this
Agreement are true and correct with the same force and effect as
through expressly made at and as of the Time of Purchase and (iii)
each of the Offerors has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under this
Agreement at or prior to the Time of Purchase.
(g) That, at the Time of Purchase, (i) the Trust Securities shall have
been accepted for listing, subject to notice of issuance, on the New
York Stock Exchange, (ii) the Junior Subordinated Debentures shall
have been accepted for listing on the Luxembourg Stock Exchange and
(iii) Yorkshire Finance's registration statement on Form 8-A relating
to the Trust Securities shall have become effective under the United
States Securities Exchange Act of 1934 (the "Exchange Act").
(h) That the Offerors shall have performed such of their obligations under
this Agreement as are to be performed at or before the Time of
Purchase by the terms hereof.
(i) That there shall have been issued and there shall be in full force and
effect orders of the Commission under the United States Public Utility
Holding Company Act of 1935 (the "1935 Act") permitting the issuance
and sale of the Securities, the Junior Subordinated Debentures, the
Debenture Guarantee and the Control Certificate.
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(j) That the Underwriters shall have received evidence satisfactory to
them that Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's Ratings Services ("SEP") shall have publicly assigned ratings
to the Trust Securities.
In case any of the conditions specified above in this Section 3 shall not
have been fulfilled, this Agreement may be terminated by the Underwriters at any
time at or prior to the Time of Purchase upon written notice thereof to the
Offerors. Any such termination shall be without liability of any party to any
other party except as otherwise provided in Section 4(e), Section 4(f) and
Section 4(g) hereof and except for any liability under Section 6 hereof.
SECTION 4. CERTAIN COVENANTS OF THE OFFERORS.
---------------------------------
In further consideration of the agreements of the Underwriters herein
contained, each of the Offerors covenants and agrees, jointly and severally, as
follows:
(a) The Offerors, on or prior to the Time of Purchase, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or
hereafter made, including any post-effective amendment (in each case
including all exhibits filed therewith, and including unsigned copies
of each consent and certificate included therein or filed as an
exhibit thereto). As soon as Yorkshire Group is advised thereof, it
will advise ML orally (and to confirm such advice in writing) of (i)
the issuance of any stop order under the Securities Act with respect
to the Registration Statement, or the institution of any proceedings
therefor, of which Yorkshire Group shall have received notice, and
will use its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof, if issued and (ii) any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
relating thereto. The Offerors will deliver to the Representatives
sufficient conformed copies of the Registration Statement, the
Preliminary Prospectus and the Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to
each Underwriter and, from time to time, as many copies of the
Preliminary Prospectus and the Prospectus and any amendments and
supplements thereto in forms approved by the Representatives as the
Underwriters may reasonably request for the purposes contemplated by
the Securities Act or the Exchange Act.
(b) If, during the period (not exceeding nine months) when the delivery of
a prospectus shall be required by law in connection with the sale of
any Trust Securities by any Underwriter or dealer, any event relating
to or affecting any of the Offerors, or of which any of the Offerors
shall be advised in writing by the Underwriters, shall occur, which in
the opinion of counsel for any of the Offerors or the Underwriters
should be set forth
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in a supplement to or an amendment of the Prospectus, in order to make
the Prospectus not misleading in the light of the circumstances when
it is delivered, or if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus in order to
comply with the Securities Act or the Exchange Act, the Offerors
forthwith will (i) notify the Underwriters to suspend solicitation of
offers to purchase or purchases of the Trust Securities and (ii) at
its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Prospectus which will
supplement or amend the Prospectus so that, as supplemented or
amended, it will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered, not misleading or which will effect any other
necessary compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Trust Securities after
the expiration of the period specified in the preceding sentence, the
Offerors, upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity
of supplements or amendments to the Prospectus complying with Section
10(a) of the Securities Act.
(c) Yorkshire Group will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of
the period covered thereby, an earning statement of Yorkshire Group
(in form complying with the provisions of Section 11(a) of the
Securities Act and Rule 158 of the rules and regulations of the
Commission under the Securities Act) covering a twelve-month period
beginning not later than the first day of Yorkshire Group's fiscal
quarter next following the "effective date" (as defined in Rule 158)
of the Registration Statement.
(d) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424, the Offerors will file
the Prospectus with the Commission and will advise ML of such filing
and to confirm such advice in writing.
(e) The Offerors will use their best efforts to qualify the Securities
(and, if necessary, the Debentures Guarantee and the Junior
Subordinated Debentures) for offer and sale under the securities or
"blue sky" laws of such jurisdictions as the Underwriters may
designate within six months after the date hereof and will pay, or
will reimburse the Underwriters and their counsel for, reasonable
filing fees and expenses in connection therewith in an amount not
exceeding $3,500 in the aggregate (including filing fees and expenses
paid and incurred prior to the date hereof); provided, however, that
neither the Trust, Yorkshire Finance nor Yorkshire Group shall be
required to qualify as a foreign corporation or to file a consent to
service of process or to file annual reports or to comply
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with any other requirements deemed by the Trust, Yorkshire Finance or
Yorkshire Group to be unduly burdensome.
(f) Yorkshire Group or Yorkshire Finance will pay, except as otherwise
expressly provided herein, for all expenses incidental to the
performance of its obligations under this Agreement, including (i) the
preparation of the Registration Statement, the Preliminary Prospectus
and the Prospectus (and any amendments or supplements thereto), (ii)
the issuance and delivery of the Securities, the Junior Subordinated
Debentures, the Debentures Guarantee and the Control Certificate,
(iii) the fees and disbursements of the Offerors' counsel and
accountants, (iv) the fees of The Bank of New York, the Delaware
Trustee and the fees and disbursements of their counsel, (v) the fees
and expenses in connection with the rating of the Trust Securities by
securities rating organizations, (vi) the printing and delivery of
copies of the Registration Statement, the Preliminary Prospectus and
the Prospectus (including any amendments or supplements thereto),
(vii) the fees and expenses in connection with the listing of the
Trust Securities and, if applicable, the Junior Subordinated
Debentures on the New York Stock Exchange and the Junior Subordinated
Debentures on the Luxembourg Stock Exchange including the applications
therefor and (viii) the Offerors' costs and expenses for travel,
lodging and incidental expenses relating to investor presentations on
any "road show" undertaken in connection with the marketing of the
Trust Securities. It is understood that, except as provided in
Section 4(e), this Section 4(f), Section 4(g) and Section 6 hereof,
the Underwriters will pay all of their costs and expenses, fees of
their counsel, Winthrop, Stimson, Xxxxxx & Xxxxxxx, transfer taxes
payable on resale of any of the Trust Securities by them, and any
advertising expenses connected with any offers they may make.
(g) If the Underwriters shall not take up and pay for the Trust Securities
due to the failure of the Offerors to comply with any of the
conditions specified in Section 3 hereof, or, if this Agreement shall
be terminated in accordance with the provisions of Section 7 or 8
hereof, Yorkshire Group or Yorkshire Finance will pay the fees and
disbursements of Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel to the
Underwriters, and, if the Underwriters shall not take up and pay for
the Trust Securities due to the failure of the Offerors to comply with
any of the conditions specified in Section 3 hereof, Yorkshire Group
or Yorkshire Finance will reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount not
exceeding a total of $10,000, incurred in connection with the
financing contemplated by this Agreement.
(h) During the period of 30 days from the date hereof, the Offerors agree
not to sell, offer to sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, without the prior written consent of
the Representatives, any Trust Securities, any security convertible
into or
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exchangeable into or exercisable for Trust Securities or the Junior
Subordinated Debentures or debt securities substantially similar to
the Junior Subordinated Debentures or equity securities substantially
similar to the Trust Securities (except for the Junior Subordinated
Debentures and the Trust Securities issued pursuant to this
Agreement).
(i) The Offerors will (1) use their reasonable best efforts to list,
subject to notice of issuance, the Trust Securities on the New York
Stock Exchange and to register the Trust Securities under the Exchange
Act; (2) if the Trust Securities are exchanged for Junior Subordinated
Debentures, use their reasonable best efforts to list, subject to
notice of issuance, the Junior Subordinated Debentures on any exchange
on which the Trust Securities are then listed and to register the
Junior Subordinated Debentures under the Exchange Act; and (3) use
their reasonable best efforts to list the Junior Subordinated
Debentures on the Luxembourg Stock Exchange.
(j) At any time prior to completion of the offering of the Trust
Securities by the Underwriters to purchasers, the Offerors will not
make any amendment or supplement to the Prospectus of which the
Underwriters shall not have previously been advised and furnished a
copy.
(k) The Offerors will use their reasonable best efforts to permit the
Trust Securities to be eligible for clearance and settlement through
DTC.
SECTION 5. WARRANTIES AND REPRESENTATIONS OF THE OFFERORS.
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The Offerors, jointly and severally, warrant and represent to each of the
Underwriters that:
(a) A registration statement on Form S-1, (File Nos. 333-47925, 333-47925-
01, and 333-47925-02) in respect of the Securities, the Debentures
Guarantee and the Junior Subordinated Debentures has been prepared and
filed with the Commission by the Offerors in accordance with the
provisions of the Securities Act such registration statement, as
amended at the time it (or the most recent post-effective amendment
thereto) became effective (the "Effective Date"), including the
financial statements, the exhibits thereto and the information deemed
to be part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the Securities Act, being herein
called the "Registration Statement", the preliminary prospectus
included in the Registration Statement prior to the Effective Date or
filed with the Commission pursuant to paragraph (a) of Rule 424 prior
to the Effective Date or paragraph (b) of Rule 424 after the Effective
Date being herein called "Preliminary Prospectus", and the prospectus,
including the price and terms of the offering, the distribution rate,
maturity date and certain other information filed with the Commission
in accordance with Rule 430A of the rules and regulations of
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the Commission under the Securities Act, and pursuant to Rule 424, and
as it may thereafter be amended or supplemented, being herein called
"Prospectus." The Registration Statement has been declared effective
by the Commission and no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the best knowledge of Yorkshire
Group, threatened by the Commission.
(b) The Registration Statement, at the Effective Date, and the Preliminary
Prospectus, when delivered to the Underwriters for their use in
marketing the Trust Securities, complied, and the Prospectus, at the
time it was filed pursuant to Rule 424(b) under the Securities Act and
at the Time of Purchase, will comply, in all material respects, in
form and substance, with the applicable provisions of the Securities
Act, the Exchange Act, the United States Trust Indenture Act of 1939
(the "TIA") and the rules and regulations of the Commission
thereunder. On the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. At the time that the Preliminary
Prospectus was delivered to the Underwriters for their use in
marketing the Trust Securities, the Preliminary Prospectus did not,
and at the time it was filed pursuant to Rule 424(b) under the
Securities Act and at the Time of Purchase, the Prospectus will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The foregoing warranties and representations in this
Section 5(b) do not apply to (A) the parts of the Registration
Statement that constitute the Statements of Eligibility of the
Property Trustee, the Guarantee Trustee and the Indenture Trustee on
Form T-1 (collectively, the "Form T-1") under the TIA, (B) any
statements or omissions made in the Registration Statement or the
Prospectus in reliance upon and in conformity with information
furnished in writing to the Offerors by any Underwriter through the
Representatives expressly for use therein or (C) any information with
respect to DTC or its systems or operations set forth in the
Prospectus under the captions "Description of the Trust Securities--
Book-Entry Issuance" and "Description of the Junior Subordinated
Debentures-Form, Book-Entry Procedures and Transfer."
(c) Yorkshire Group has been duly incorporated and is validly existing as
a private limited company under the laws of England and Wales, and has
due corporate authority to conduct its business as described in the
Prospectus, to enter into and perform its obligations under this
Agreement, the Trust Agreement, the Trust Securities Guarantee
Agreement and the Indenture, to issue the Trust Securities Guarantee
and the Debentures Guarantee and to own and hold the Control
Certificate issued by the Trust.
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(d) Yorkshire Finance has been duly incorporated and is validly existing
and in good standing as a company with limited liability under the
laws of the Cayman Islands with the power and authority to own
property and to conduct its business as described in the Prospectus,
to enter into and perform its obligations under this Agreement, the
Deposit Agreement and the Indenture and to issue and sell the Junior
Subordinated Debentures; Yorkshire Finance is duly qualified to
transact business as a foreign company and is in good standing in any
other jurisdiction in which such qualification is necessary, except to
the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on Yorkshire Finance; and Yorkshire
Finance is and will be treated as a consolidated subsidiary of
Yorkshire Group pursuant to United States generally accepted
accounting principles.
(e) Yorkshire Electricity Group plc ("YEG") has been duly incorporated and
is validly existing as a public limited company under the laws of
England and Wales, and has due corporate authority to conduct its
business as described in the Prospectus and to own and operate the
properties used by it in such business.
(f) The Trust has been duly created and is validly existing and in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Prospectus, to enter into and perform its obligations under this
Agreement, the Agreement as to Expenses and Liabilities and the Trust
Securities and to issue and sell the Trust Securities and to issue and
deliver the Control Certificate; the Trust is duly qualified to
transact business and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus;
the Trust has conducted, and will conduct, no business other than the
transactions contemplated by this Agreement and described in the
Prospectus; and the Trust is and will be treated as a consolidated
subsidiary of Yorkshire Group pursuant to United States generally
accepted accounting principles.
(g) This Agreement has been duly authorized, executed and delivered by
each of the Offerors.
(h) The Trust Agreement has been duly authorized by Yorkshire Group and,
at the Time of Purchase, will have been duly executed and delivered by
Yorkshire Group and the Administrative Trustees, and assuming due
authorization, execution and delivery of the Trust Agreement by AEP
Resources, the Delaware Trustee and the Property Trustee, the Trust
Agreement will, at the Time of Purchase, constitute a valid and
binding obligation of Yorkshire Group and the Administrative Trustees,
12
enforceable against Yorkshire Group and the Administrative Trustees in
accordance with its terms, except as may be limited by (1) bankruptcy,
insolvency, reorganization, receivership, liquidation, fraudulent
conveyance and transfer, moratorium or other similar laws affecting
creditors' rights generally or (2) general principles of equity
(whether considered in a proceeding at law or in equity) (the
"Enforceability Exceptions") and will conform in all material respects
to all statements relating thereto in the Prospectus; and, at the Time
of Purchase, the Trust Agreement will have been duly qualified under
the TIA.
(i) The Trust Securities Guarantee Agreement has been duly authorized by
Yorkshire Group and, at the Time of Purchase, will have been duly
executed and delivered by Yorkshire Group, and, assuming due
authorization, execution and delivery of the Trust Securities
Guarantee Agreement by the Guarantee Trustee, the Trust Securities
Guarantee Agreement will, at the Time of Purchase, constitute a valid
and binding obligation of Yorkshire Group, enforceable against
Yorkshire Group in accordance with its terms except as may be limited
by the Enforceability Exceptions, and the Trust Securities Guarantee
and the Trust Securities Guarantee Agreement will conform in all
material respects to all statements relating thereto contained in the
Prospectus; and, at the Time of Purchase, the Trust Securities
Guarantee Agreement will have been duly qualified under the TIA.
(j) The Trust Securities have been duly authorized by the Trust Agreement
and, at the Time of Purchase, will have been duly executed by the
Administrative Trustees, and, when issued and delivered by the Trust
pursuant to this Agreement against payment of the consideration set
forth herein, will be duly and validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable undivided
beneficial interests in the assets of the Trust, will be entitled to
the benefits of the Trust Agreement and will conform in all material
respects to all statements relating thereto contained in the
Prospectus; the issuance of the Trust Securities is not subject to
preemptive or other similar rights; and (subject to the terms of the
Trust Agreement) holders of Trust Securities will be entitled to the
same limitation of personal liability under Delaware law as extended
to stockholders of private corporations for profit.
(k) The Indenture has been duly authorized by Yorkshire Group and
Yorkshire Finance and, at the Time of Purchase, will have been duly
executed and delivered by Yorkshire Group and Yorkshire Finance, and,
assuming due authorization, execution and delivery of the Indenture by
the Indenture Trustee, the Indenture will, at the Time of Purchase,
constitute a valid and binding obligation of each of Yorkshire Group
and Yorkshire Finance, enforceable against each in accordance with its
terms except as may be limited by the Enforceability Exceptions; the
Indenture will conform in all material respects to all statements
relating thereto contained
13
in the Prospectus; and, at the Time of Purchase, the Indenture will
have been duly qualified under the TIA.
(l) The issuance and delivery of the Junior Subordinated Debentures have
been duly authorized by Yorkshire Finance and, at the Time of
Purchase, the Junior Subordinated Debentures will have been duly
executed by Yorkshire Finance and, when authenticated in the manner
provided for in the Indenture and delivered against payment therefor,
will constitute valid and legally binding obligations of Yorkshire
Finance, enforceable against Yorkshire Finance in accordance with
their terms, except may be limited by the Enforceability Exceptions,
will be in the form contemplated by, and entitled to the benefits of,
the Indenture and will conform in all material respects to all
statements relating thereto in the Prospectus.
(m) The execution and delivery of the Debentures Guarantee has been duly
authorized by Yorkshire Group and, at the Time of Purchase, the
Debentures Guarantee will have been duly executed and delivered by
Yorkshire Group and, when the Junior Subordinated Debentures are
authenticated in the manner provided for in the Indenture and
delivered against payment therefor, will constitute a valid and
legally binding obligation of Yorkshire Group enforceable against
Yorkshire Group in accordance with its terms, except as may be limited
by the Enforceability Exceptions, and the Debentures Guarantee will
conform in all material respects to all statements relating thereto
contained in the Prospectus.
(n) The Deposit Agreement has been duly authorized by Yorkshire Finance
and, at the Time of Purchase, will have been duly executed and
delivered by Yorkshire Finance and, assuming due authorization,
execution and delivery of the Deposit Agreement by the Book-Entry
Depositary, the Deposit Agreement will constitute a valid and binding
obligation of Yorkshire Finance, enforceable against Yorkshire Finance
in accordance with its terms except as may be limited by the
Enforceability Exceptions; and the Deposit Agreement will conform in
all material respects to all statements relating thereto contained in
the Prospectus.
(o) The Control Certificate has been duly authorized by the Trust
Agreement and at the Time of Purchase, will be duly and validly issued
pursuant to the terms of the Trust Agreement.
(p) Neither the Trust, Yorkshire Finance nor Yorkshire Group is and, after
giving effect to the offering and sale of the Trust Securities, will
be an "investment company" or an entity "controlled" by an "investment
company" required to be registered under the United States Investment
Company Act of 1940 (the "1940 Act").
(q) The execution, delivery and performance by the Offerors of this
Agreement, by Yorkshire Finance of the Deposit Agreement, by Yorkshire
Group and Yorkshire Finance of the Indenture, by Yorkshire
14
Group of the Trust Agreement, the Trust Securities Guarantee and the
Debentures Guarantee and the consummation by the Offerors of the
transactions contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder and thereunder
shall have been duly authorized by all necessary action (corporate or
otherwise) on the part of the Offerors and do not and will not result
in any violation of the charter or bylaws of Yorkshire Finance,
Yorkshire Group or the Trust Agreement or the certificate of trust of
the Trust and do not and will not conflict with, or result in a breach
of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Offerors or YEG under
(A) any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Offerors or YEG are a party
or by which any of them may be bound or to which any of their
properties or assets may be subject (except for conflicts, breaches or
defaults which would not, individually or in the aggregate, be
materially adverse to the Offerors or YEG or materially adverse to the
transactions contemplated by this Agreement), (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Offerors or YEG or any
of their respective properties or assets (except for conflicts which
would not, individually or in the aggregate, be materially adverse to
the Offerors or YEG or materially adverse to the transactions
contemplated by this Agreement) or (C) the PES License (as defined in
the Prospectus).
(r) No authorization, approval, consent or order of any court or
governmental authority or agency of the United States, the United
Kingdom or the Cayman Islands is necessary in connection with the
offering of the Trust Securities, the Junior Subordinated Debentures,
the Trust Securities Guarantee or the Debentures Guarantee, the
issuance and delivery of the Control Certificate or the transactions
contemplated in this Agreement, the Indenture, the Trust Agreement or
the Deposit Agreement, except (A) such as have been obtained under the
Securities Act, the Exchange Act, the TIA or the rules and regulations
thereunder; (B) such as have been obtained under the 1935 Act; (C)
such as may be required under United States state securities or "blue
sky" laws; (D) such as may be required by any person selling
securities in the United Kingdom under any rules or regulations under
the FSA which are applicable to it; and (E) that the Inland Revenue
may require the Trust and/or a paying agent in the United Kingdom to
give to it certain particulars of the issue of the Trust Securities in
connection with regulations made under the Income and Corporation
Taxes Act 1988 (as amended by the Finance Act 1996).
15
(s) YEG is entitled to the exemption from the 1935 Act, provided by
Section 33(a) (1) thereof.
(t) The consolidated financial statements of Yorkshire Group and its
consolidated subsidiaries, together with notes thereto, included in
the Prospectus present fairly the financial position of Yorkshire
Group and its consolidated subsidiaries at the dates or for the
periods indicated; said consolidated financial statements have been
prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis throughout the
periods involved. The selected financial data and the summary
financial information included in the Preliminary Prospectus and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Preliminary Prospectus and the Prospectus.
The pro forma financial information included in the Preliminary
Prospectus and the Prospectus is fairly presented and has been
properly compiled on the bases described therein.
(u) Except as set forth in or contemplated by the Prospectus, and except
as would not, individually or in the aggregate, be materially adverse
to the business or operations of YEG, YEG possesses adequate
franchises, licenses, permits and other rights to conduct its business
and operations as now conducted.
SECTION 6. INDEMNITY AND CONTRIBUTION.
---------- --------------------------
(a) Yorkshire Group and Yorkshire Finance agree, to the extent permitted by
law, to indemnify, jointly and severally, and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the Exchange Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act or
otherwise, and to reimburse the Underwriters and such controlling person or
persons, if any, for any legal or other expenses as incurred by them in
connection with defending any action, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus, or if the Offerors
shall furnish or cause to be furnished to the Underwriters any amendments or any
supplements thereto, as they may be so amended or supplemented, or arise out of
or are based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such untrue statement or alleged
untrue statement or omission or alleged omission which was made in the
Registration Statement, the Preliminary Prospectus or the Prospectus as so
amended or supplemented in reliance upon and in conformity with information
furnished in writing by any Underwriter through the Representatives expressly
for use therein and except (i) with respect to information relating to DTC or
its systems or procedures as set forth in the
16
Registration Statement, the Prospectus or the Preliminary Prospectus under the
captions "Description of the Trust Securities Book- Entry Issuance" and
"Description of the Junior Subordinated Debentures- Form, Book-Entry Procedures
and Transfer" and (ii) with respect to the Form T-1, and except that this
indemnity shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Trust Securities to any
person if a copy of the Prospectus, as the same may then be supplemented or
amended, was not sent or given by or on behalf of such Underwriter to such
person with or prior to the written confirmation of the sale involved and the
omission or alleged omission or untrue statement or alleged untrue statement was
corrected in the Prospectus as supplemented or amended at the time of such
confirmation and the Prospectus, as so amended and supplemented, was timely
delivered to the Underwriters by the Offerors. Each Underwriter agrees within
ten days after the receipt by it of notice of the commencement of any action in
respect to which indemnity from the Offerors on account of its agreement
contained in this Section 6(a) may be sought by it, or by any person controlling
it, to notify the Offerors in writing of the commencement thereof, but the
failure of such Underwriter so to notify the Offerors of any such action shall
not release the Offerors from any liability which it may have to such
Underwriter or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 6(a). In case any such action
shall be brought against any Underwriter or any such person controlling such
Underwriter and such Underwriter shall notify the Offerors of the commencement
thereof, as above provided, the Offerors shall be entitled to participate in
(and, to the extent that the Offerors shall wish, including the selection of
counsel (which counsel shall be reasonably satisfactory to the Underwriters), to
direct) the defense thereof at their own expense. In case the Offerors elect to
direct such defense and select such counsel ("Offerors' Counsel"), any
Underwriter or any controlling person shall have the right to employ its own
counsel, but, in any such case, the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless (i) the Offerors
have agreed in writing to pay such fees and expenses or (ii) the named parties
to any such action (including any impleaded parties) include both any
Underwriter or any controlling person and the Offerors, and any Underwriter or
any controlling person shall have been advised by its counsel that a conflict of
interest between the Offerors and any Underwriter or controlling person may
arise (and the Offerors' Counsel shall have concurred in good faith with such
advice) and for this reason it is not desirable for the Offerors' Counsel to
represent both the indemnifying party and the indemnified party (it being
understood, however, that the Offeror shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for any Underwriter or any controlling person (plus any local counsel
retained by any Underwriter or any controlling person in their reasonable
judgment), which firm (or firms) shall be designated in writing by any
Underwriter or any controlling person).
(b) Each Underwriter agrees, to the extent permitted by law, to indemnify,
hold harmless and reimburse the Offerors, their directors and their officers,
and each person, if any, who controls the Offerors within the meaning of Section
15 of the 1933
17
Act or Section 20(a) of the Exchange Act, to the same extent and upon the same
terms as the indemnity agreement of the Offerors set forth in Section 6(a)
hereof, but only with respect to untrue statements or alleged untrue statements
or omissions or alleged omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus, as they may be amended or supplemented,
in reliance upon and in conformity with information furnished in writing to the
Offerors by any Underwriter through the Representatives expressly for use
therein. The Offerors agree within ten days after the receipt by it or notice of
the commencement of any action in respect to which indemnity from any
Underwriter on account of its agreement contained in this Section 6(b) may be
sought by it, or by a person controlling it, to notify such Underwriter in
writing of the commencement thereof, but failure of an Offeror so to notify the
Underwriter of any such action shall not release such Underwriter from any
liability which it may have to an Offeror or to such controlling person
otherwise than on account of the indemnity agreement contained in this Section
6(b).
(c) If recovery is not available under Section 6(a) or 6(b) hereof for any
reason other than as specified therein, the indemnified party shall be entitled
to contribution for any and all losses, claims, damages, liabilities and
expenses for which such indemnification is so unavailable under this Section
6(c). In determining the amount of contribution to which such indemnified party
is entitled, there shall be considered the portion of the proceeds of the
offering of the Trust Securities realized, the relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission, and any
equitable considerations appropriate under the circumstances. The Offerors and
the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) without reference to
the considerations called for in the previous sentence. No Underwriter or any
person controlling such Underwriter shall be obligated to contribute any amount
or amounts hereunder which in the aggregate exceeds the total price of the Trust
Securities purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages which such Underwriter and its controlling
persons have otherwise been required to pay in respect of the same claim or any
substantially similar claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any Underwriter's obligation to contribute under this Section
6 is in proportion to its purchase obligation and not joint with any other
Underwriter or Underwriters.
(d) No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii)
18
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of such indemnified party.
SECTION 7. DEFAULT OF UNDERWRITERS.
-----------------------
If any Underwriter or Underwriters under this Agreement shall fail or
refuse (otherwise than for some reason sufficient to justify, in accordance with
the terms hereof, the cancellation or termination of its obligations hereunder)
to purchase and pay for the number of Trust Securities which it has agreed to
purchase and pay for hereunder, and the aggregate number of Trust Securities
with respect to which such default occurs is not more than one-tenth of the
aggregate number of the Trust Securities, the other Underwriters shall be
obligated severally in the proportions which the amounts of Trust Securities set
forth opposite their names in Schedule I hereto bear to the aggregate number of
Trust Securities set forth opposite the names of all such non-defaulting
Underwriters, to purchase the Trust Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on the terms set forth
herein; provided that in no event shall the number of Trust Securities which any
Underwriter has agreed to purchase pursuant to Section 1 hereof be increased
pursuant to this Section 7 by an amount in excess of one-ninth of such number of
Trust Securities without the written consent of such Underwriter. If any
Underwriter or Underwriters shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the cancellation or
termination of its obligations hereunder) to purchase and pay for the number of
Trust Securities which it has agreed to purchase and pay for hereunder, and the
aggregate number of Trust Securities with respect to which such default occurs
is more than one-tenth of the aggregate number of the Trust Securities, then
this Agreement shall terminate. In the event of any such termination, the
Offerors shall not be under any liability to any Underwriter (except to the
extent, if any, provided in Section 4(e), Section 4(f) and Section 4(g) or
Section 6 hereof), nor shall any Underwriter (other than an Underwriter who
shall have failed or refused to purchase the Trust Securities it has agreed to
purchase and pay for hereunder without some reason sufficient to justify, in
accordance with the terms hereof, its cancellation or termination of its
obligations hereunder) be under any liability to the Offerors or any other
Underwriter.
Nothing herein contained shall release any defaulting Underwriter from its
liability to the Offerors or any non-defaulting Underwriter for damages
occasioned by its default hereunder.
SECTION 8. TERMINATION OF AGREEMENT BY THE
--------------------------------
UNDERWRITERS.
------------
This Agreement may be terminated at any time prior to the Time of Purchase
by the Representatives if, after the execution and delivery of this Agreement
and prior to the Time of Purchase, in the reasonable judgment of the
Representatives, the Underwriters' ability to market the Trust Securities shall
have been materially adversely affected because:
19
(i) trading in securities on the New York Stock Exchange shall have been
generally suspended by the Commission or by the New York Stock Exchange, or
(ii) any outbreak or material escalation of hostilities or other calamity
or crisis materially adversely affecting the financial markets of the
United States of America or the United Kingdom shall have occurred, or
(iii) a general banking moratorium shall have been declared by United
States federal, New York State or United Kingdom authorities, or
(iv) there shall have been any decrease in the ratings of any of Yorkshire
Finance's outstanding debt securities by Xxxxx'x or S&P or either Xxxxx'x
or S&P shall publicly announce that it has such rating under consideration
for possible downgrade.
If the Representatives elect to terminate this Agreement, as provided in
this Section 8, the Representatives will promptly notify the Offerors by
telephone or by telex or facsimile transmission, confirmed in writing. If this
Agreement shall not be carried out by any Underwriter for any reason permitted
hereunder, or if the sale of the Trust Securities to the Underwriters as herein
contemplated shall not be carried out because the Offerors are not able to
comply with the terms hereof, the Offerors shall not be under any obligation
under this Agreement and shall not be liable to any Underwriter or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement (except to the extent, if any, provided in
Section 4(e), Section 4(f) and Section 4(g) or Section 6 hereof) and the
Underwriters shall be under no liability to the Offerors nor be under any
liability under this Agreement to one another.
SECTION 9. NOTICES.
-------
All notices hereunder shall, unless otherwise expressly provided, be in
writing and be delivered at or mailed to the following addresses or by telex or
facsimile transmission confirmed in writing to the following addresses: if to
the Underwriters, to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World
Financial Center, Xxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxx X. Xxxxx, if to Yorkshire Group to Yorkshire Power Group
Limited, Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx XX00 0XX Xxxxxxx, Attention: Xxxxx
Xxxxxxxxx, if to Yorkshire Finance to Yorkshire Power Finance Limited c/o
Yorkshire Power Group Limited, Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx XX00 0XX,
Xxxxxxx, Attention: Xxxxx Xxxxxxxxx and if to the Trust to Yorkshire Capital
Trust I c/o American Electric Power Service Corporation, 0 Xxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx.
SECTION 10. PARTIES IN INTEREST.
-------------------
The agreement herein set forth has been and is made solely for the benefit
of the Underwriters, the Offerors, the controlling persons, if any, referred to
in Sections 5 and 6 hereof, and their respective successors, assigns, executors
and administrators, and, except as expressly otherwise provided in Section 7
hereof, no other person shall acquire or have any right under or by virtue of
this Agreement.
20
SECTION 11. CONDITIONS OF THE OFFERORS' OBLIGATIONS.
---------------------------------------
The obligations of the Offerors hereunder are subject to the Underwriters'
performance of their obligations hereunder.
SECTION 12. APPLICABLE LAW; SUCCESSORS.
--------------------------
This Agreement will be governed and construed in accordance with the laws
of the State of New York. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Trust
Securities from any of the respective Underwriters.
SECTION 13. CONSENT TO JURISDICTION; APPOINTMENT OF AGENT TO ACCEPT
-------------------------------------------------------
SERVICE OF PROCESS.
------------------
(a) The Offerors and the Underwriters irrevocably consent and agree that
any civil legal action, suit or proceeding against them with respect to their
obligations, liabilities or any other matter arising out of or in connection
with this Agreement may be brought in the Supreme Court of New York, New York
County or the United States District Court for the Southern District of New York
and any appellate court from either thereof and, until amounts due and to become
due in respect of the Trust Securities have been paid, hereby irrevocably
consent and submit to the non-exclusive jurisdiction of each such court in
personam, generally and unconditionally with respect to any civil action, suit
or proceeding for themselves and in respect of their properties, assets and
revenues.
(b) Yorkshire Group and Yorkshire Finance have irrevocably designated,
appointed, and empowered CT Corporation System, located at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as their designee, appointee and agent to receive, accept
and acknowledge for and on their behalf, and their properties, assets and
revenues, service of any and all legal process, summons, notices and documents
which may be served in any action, suit or proceeding brought against Yorkshire
Group or Yorkshire Finance in any United States or state court. If for any
reason such designee, appointee and agent hereunder shall cease to be available
to act as such, the Yorkshire Group and Yorkshire Finance agree to designate a
new designee, appointee and agent in the Borough of Manhattan, The City of New
York. Yorkshire Group and Yorkshire Finance further hereby irrevocably consent
and agree to the service of any and all legal process, summons, notices and
documents in any action, suit or proceeding against Yorkshire Group or Yorkshire
Finance by serving a copy thereof upon the relevant agent for service of process
referred to in this Section 13 (whether or not the appointment of such agent
shall for any reason prove to be ineffective or such agent shall accept or
acknowledge such service) or by mailing copies thereof by registered or
certified air mail, postage prepaid, to Yorkshire Group or Yorkshire Finance at
their respective addresses specified in or designated pursuant to this
Agreement. Yorkshire Group and Yorkshire Finance agree that the failure of any
such designee, appointee and agent to give any notice of such service to them
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon. Nothing herein
shall in
21
any way be deemed to limit the ability of the Underwriters to serve any such
legal process, summons, notices and documents in any other manner permitted by
applicable law or to obtain jurisdiction over Yorkshire Group or Yorkshire
Finance or bring actions, suits or proceedings against Yorkshire Group or
Yorkshire Finance in such other jurisdictions, and in such manner, as may be
permitted by applicable law. Yorkshire Group and Yorkshire Finance irrevocably
and unconditionally waive, to the fullest extent permitted by law, any objection
which they may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or in connection with
this Agreement brought in the Supreme Court of New York, New York County or the
United States District Court for the Southern District of New York and any
appellate court from either thereof and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
SECTION 14. FOREIGN TAXES; WAIVER OF IMMUNITIES;
------------------------------------
JUDGMENT CURRENCY.
-----------------
(a) All payments by each of Yorkshire Group or Yorkshire Finance to the
Underwriters hereunder shall be made free and clear of, and without deduction or
withholding for or on account of, any and all present and future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by the United Kingdom or any other jurisdiction in which Yorkshire Group or
Yorkshire Finance have a branch or an office from which payment is made or
deemed to be made, excluding (i) any such tax imposed by reason of any
Underwriter having some connection with any such jurisdiction other than its
participation as an Underwriter hereunder and (ii) any income or franchise tax
on the overall net income of any Underwriter imposed by the United States of
America or by the State of New York or any political subdivision of the United
States of America or of the State of New York or any political subdivision of
the United States of America or of the State of New York (all such non-excluded
taxes, "Foreign Taxes"). If either Yorkshire Group or Yorkshire Finance is
prevented by operation of law or otherwise from paying, causing to be paid or
remitting that portion of amounts payable hereunder represented by Foreign Taxes
withheld or deducted, then amounts payable under this Agreement shall, to the
extent permitted by law, be increased to such amount as is necessary to yield
and remit to such Underwriter an amount that, after deduction of all Foreign
Taxes (including all Foreign Taxes payable on such increased payments), equals
the amount that would have been payable if no Foreign Taxes applied.
(b) To the extent that Yorkshire Group or Yorkshire Finance may in any
jurisdiction claim for itself or its assets immunity (to the extent such
immunity may now or hereafter exist, whether on the grounds of sovereign
immunity or otherwise) from, suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process (whether through
service or notice or otherwise), and to the extent that in any such jurisdiction
there may be attributed to itself or its assets such immunity (whether or not
claimed), Yorkshire Group and Yorkshire Finance irrevocably agree with respect
to any matter arising under the Agreement, for the benefit of the Underwriters,
22
not to claim, and irrevocably waive, such immunity to the full extent permitted
by the laws of such jurisdiction.
(c) If for the purpose of obtaining judgment in any court it is necessary
to convert a sum due hereunder to the Underwriters from United States dollars
into another currency, Yorkshire Group and Yorkshire Finance have agreed, and
each Underwriter will be deemed to have agreed, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures such Underwriters could purchase
United States dollars with such other currency in The City of New York on the
business day preceding the day on which final judgment is given.
(d) The obligations of Yorkshire Group and Yorkshire Finance in respect of
any sum payable by them to the Underwriters shall, notwithstanding any judgment
in a currency (the "judgment currency") other than United States dollars, be
discharged only to the extent that on the business day following receipt by such
Underwriter of any sum, adjudged to be so due in the judgment currency, such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with the judgment currency; if the amount of United States
dollars so purchased is less than the sum originally due to such Underwriter in
the judgment currency (determined in the manner set forth in the preceding
paragraph), the Yorkshire Group and Yorkshire Finance agree, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss, and if the amount of the United States dollars so purchased
exceeds the sum originally due to such Underwriter, such Underwriter agrees to
remit to Yorkshire Group and Yorkshire Finance such excess amount.
SECTION 15. EXECUTION OF COUNTERPARTS.
-------------------------
This Agreement may be executed in several counterparts, each of which shall
be regarded as an original and all of which shall constitute one and the same
document.
SECTION 16. SURVIVAL.
--------
The indemnity and contribution agreements contained in Section 6 hereof,
Section 13 hereof, Section 14 hereof, and all covenants, warranties and
representations contained in this Agreement, shall remain in full force and
effect regardless of any investigation make by or on behalf of any persons, and
shall survive the delivery of and payment for the Trust Securities hereunder.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Offerors a counterpart hereof, whereupon this
letter agreement will become a binding agreement among the Offerors and the
Underwriters in accordance with its terms.
Very truly yours,
YORKSHIRE POWER GROUP LIMITED
By:
Title:
----------------------------------
YORKSHIRE POWER FINANCE
LIMITED
By:
Title:
----------------------------------
YORKSHIRE CAPITAL TRUST I
By: AEP Resources Inc.,
as Depositor
Title:
----------------------------------
XXXXXXX XXXXX & CO.
MERRILL, LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
As representatives of the other several Underwriters
named in Schedule I hereto
[Co-Managers]
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:____________________________________
Title: Authorized Signatory
24
SCHEDULE I
----------
Underwriter NUMBER OF TRUST SECURITIES
----------- --------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
II-1
SCHEDULE II
Initial public offering price per Trust Security
(and purchase price per security to be paid by
the several Underwriters): $25
Compensation per Trust Security to be paid
by Yorkshire Finance to the several
Underwriters in respect of their
commitments: $________ per Trust Security;
provided that such compensation will be
$______ per Trust Security for sales of
10,000 or more Trust Securities to a single
purchaser
II-2
EXHIBIT A
[Letterhead of XXXXXXXX, XXXXXX & FINGER, P.A.]
_______________ __, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
[Co-Managers]
As Representatives of the several Underwriters
named in Schedule I to the Underwriting
Agreement referred to below
x/x Xxxxxxx Xxxxx & Xx.
Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Yorkshire Capital Trust I
-------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Yorkshire Power Group
Limited, a private company with limited liability incorporated under the laws of
England and Wales ("Yorkshire Group"), Yorkshire Power Finance Limited, a
private company with limited liability incorporated under the laws of the Cayman
Islands ("Yorkshire Finance"), and Yorkshire Capital Trust I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
This opinion is being furnished to you pursuant to Section 3(b)(i) of the
Underwriting Agreement, dated ___________, 1998 (the "Underwriting Agreement"),
among Yorkshire Group, Yorkshire Finance, the Trust and you, as Representatives
of the several Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated ____________, 1998 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on _____________, 1998;
(b) The Trust Agreement of the Trust, dated as of _______________, 1998
(including the Control Certificate attached as an exhibit thereto) among AEP
Resources, Inc., as Depositor ("AEP Resources"), and the trustees of the Trust
named therein;
(c) The Amended and Restated Trust Agreement, dated as of
_________________, 1998 (including Exhibits A and C thereto) (the "Trust
Agreement"), among AEP Resources, as depositor, the trustees of the Trust named
A-1
therein, Yorkshire Group, as Control Party, and the holders, from time to time,
of undivided beneficial interests in the assets of the Trust;
(d) The Underwriting Agreement;
(e) The Prospectus, dated ________________, 1998 (the "Prospectus"),
relating to the ___% Trust Securities of the Trust representing undivided
beneficial interests in the assets of the Trust (each, a "Trust Security" and
collectively, the "Trust Securities");
(f) A Certificate of Good Standing for the Trust, dated ___________,
1998, obtained from the Secretary of State;
(g) The Subordinated Debenture Indenture, dated as of ____________,
1998, among Yorkshire Group, Yorkshire Finance and The Bank of New York, as
trustee, as supplemented by the First Supplemental Indenture thereto dated as of
_________ 1, 1998 (collectively, the "Indenture"), which includes the guarantee
of the Debentures (as hereinafter defined) by Yorkshire Group (the "Debentures
Guarantee");
(h) A specimen of the ___% Junior Subordinated Deferrable Interest
Debentures, Series A due ____________, 2038 (the "Debentures") issued pursuant
to the Indenture; and
(i) The Trust Securities Guarantee Agreement, dated as of ___________ 1,
1998 between Yorkshire Group and The Bank of New York, as trustee (the "Trust
Securities Guarantee Agreement" and, collectively with the Debentures Guarantee,
the "Guarantees").
Capitalized terms used herein and not otherwise defined are used as defined
in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (i) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (i) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
A-2
For purposes of this opinion, we have assumed (i) the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Certificate are
in full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due organization or due formation or due
creation, as the case may be, and valid existence in good standing of each party
to the documents examined by us under the laws of the jurisdiction governing its
organization, formation or creation, (iii) the legal capacity of natural persons
who are parties to the documents examined by us, (iv) except to the extent
provided in paragraph 2 below, the power and authority of each of the parties to
the documents examined by us to execute and deliver, and to perform its
obligations under, such documents, (v) except to the extent provided in
paragraphs 4 and 10 below, the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each Person
to whom a Trust Security is to be issued by the Trust (collectively, the "Trust
Security Holders") of a Trust Securities Certificate for such Trust Security and
the payment for the Trust Security acquired by it, in accordance with the Trust
Agreement and as described in the Prospectus, (vii) the issuance and sale of the
Trust Securities to the Trust Security Holders in accordance with the Trust
Agreement and as described in the Prospectus and (viii) that the Trust Yorkshire
Group [the US Affiliates] and Yorkshire Finance derive no income from or
connected with sources within the State of Delaware and have no assets,
activities (other than (i) with respect to the Trust, having a Delaware Trustee
as required by the Business Trust Act (as defined below), (ii) having a
registered agent as required by the General Corporation Law of the State of
Delaware and (iii) the filing of documents and payment of franchise taxes with
the Secretary of State). We have not participated in the preparation of the
Prospectus.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
(S) 3801, et seq. (the "Business Trust Act"), and all filings required under the
laws of the State of Delaware with respect to the creation and valid existence
of the Trust as a business trust have been made.
2. Under the Business Trust Act and the Trust Agreement, the Trust has
the trust power and authority to (i) own property and conduct its business, all
as described in the Prospectus, (ii) execute and deliver, and to perform its
obligations under,
A-3
the Underwriting Agreement, (iii) issue, sell and perform its obligations under,
the Trust Securities and the Control Certificate and (iv) perform its
obligations under the Trust Agreement.
3. The Trust Securities have been duly authorized by the Trust Agreement
and are duly and validly issued and subject to the qualifications set forth in
paragraph 6 below, are fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and are entitled to the benefits of the
Trust Agreement. Under the Business Trust Act and the Trust Agreement, the
issuance of the Trust Securities is not subject to any preemptive or other
similar rights.
4. Under the Business Trust Act and the Trust Agreement, (i) the
issuance and sale by the Trust of the Trust Securities and the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust and (ii) assuming the due execution and
delivery of the Underwriting Agreement by the Depositor on behalf of the Trust
and of the certificates for the Trust Securities by one or more of the
Administrative Trustees on behalf of the Trust, the Underwriting Agreement and
the Trust Securities have been duly executed and delivered by the Trust.
5. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust, Yorkshire Group, the US Affiliates or Yorkshire Finance solely as a
result of (i) the issuance and sale of the Trust Securities, (ii) the issuance
and sale of the Debentures and (iii) the issuance and delivery of the Guarantees
and the Control Certificate.
6. The Trust Security Holders, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Trust Security
Holders may be obligated, pursuant to the Trust Agreement, to (i) provide
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Trust Securities Certificates and
the issuance of replacement Trust Securities Certificates and (ii) provide
security or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the Trust Agreement.
7. The Trust Agreement constitutes a valid and binding obligation of AEP
Resources, Yorkshire Group and the Trustees, and is enforceable against AEP
Resources, Yorkshire Group and the Trustees, in accordance with its terms.
8. The issuance and sale by the Trust of the Trust Securities, the
issuance and delivery by the Trust of the Control Certificate, the execution,
delivery and performance by the Trust of the Underwriting Agreement, the
consummation by the Trust of the transactions contemplated by the Underwriting
Agreement and the Trust Agreement and compliance by the Trust with its
obligations thereunder do not violate
A-4
(i) any of the provisions of the Certificate or the Trust Agreement or (ii) any
applicable Delaware law or Delaware administrative regulation.
9. We have reviewed the statements in the Prospectus under the caption
"Yorkshire Capital Trust I" and, insofar as they contain statements of Delaware
law, such statements are fairly presented.
10. The Control Certificate has been duly authorized by the Trust
Agreement and has been duly and validly issued pursuant to the terms of the
Trust Agreement.
The opinion expressed in paragraph 7 above is subject to the effect upon
the Trust Agreement of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance and transfer and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification.
We consent to your, and the other several Underwriters, relying as to
matters of Delaware law upon this opinion in connection with the Underwriting
Agreement. We consent to the law firms of Xxxxx Xxxxxxxxxx LLP and Winthrop,
Stimson, Xxxxxx & Xxxxxxx relying as to matters of Delaware law upon this
opinion in connection with opinions to be rendered by them pursuant to the
Underwriting Agreement. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other Person for any purpose.
Very truly yours,
XXXXXXXX, XXXXXX & FINGER, P.A.
A-5
EXHIBIT B
[Letterhead of XXXXX XXXXXXXXXX LLP]
_______________ __, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
[Co-Managers]
As Representatives of the several Underwriters
named in Schedule I to the Underwriting
Agreement referred to below
x/x Xxxxxxx Xxxxx & Xx.
Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Yorkshire Capital Trust I
-------------------------
Ladies and Gentlemen:
We, together with Xxxxx and Overy, London, England and Xxxxxxxx, Xxxxxx &
Finger, P.A., Wilmington, Delaware, have acted as counsel to Yorkshire Power
Finance Limited, a private company with limited liability incorporated under the
laws of the Cayman Islands ("Yorkshire Finance"), and Yorkshire Power Group
Limited, a private company with limited liability incorporated under the laws of
England and Wales ("Yorkshire Group"), in connection with (i) the formation of
Yorkshire Capital Trust I, a Delaware statutory business trust (the "Trust" and,
collectively, along with Yorkshire Group and Yorkshire Finance, the "Offerors"),
pursuant to the Amended and Restated Trust Agreement dated _______________, 1998
among Yorkshire Group, AEP Resources, Inc., an Ohio corporation ("AEP
Resources"), and the trustees named therein (the "Trust Agreement"); (ii) the
Trust's issuance and sale of 11,000,000 ____% Trust Securities evidencing
undivided beneficial interests in the assets of the Trust (the "Trust
Securities"); (iii) Yorkshire Finance's issuance and sale to the Trust of
$275,000,000 of its ___% Junior Subordinated Deferrable Interest Debentures,
Series A due ____________, 2038 (the "Debentures") pursuant to a Subordinated
Debenture Indenture dated as of _____________ 1, 1998, among Yorkshire Finance,
Yorkshire Group and The Bank of New York, as trustee (the "Indenture Trustee"),
as supplemented by the First Supplemental Indenture dated as of _______- __,
1998 (collectively, the "Indenture"); (iv) the Agreement as to Expenses and
Liabilities dated as of ________ __, 1998, between AEP Resources and New Century
International, Inc., a Delaware corporation (collectively, the "US Affiliates")
Yorkshire Group's and the Trust (the "Agreement as to Expenses and
Liabilities"); (v) issuance of a guarantee (the "Trust Securities Guarantee") of
the Trust Securities pursuant to a Trust Securities Guarantee Agreement dated as
of _________ 1, 1998 (the "Trust Securities Guarantee Agreement") between
Yorkshire Group and The Bank of New York, as guarantee trustee (the "Guarantee
Trustee"); and
B-1
(vi) Yorkshire Group's issuance of a guarantee (the "Debenture Guarantee") of
the Debentures pursuant to the terms of the Indenture. The Trust Securities are
being sold to you today pursuant to the terms of an Underwriting Agreement dated
__________, 1998 (the "Underwriting Agreement"), among Yorkshire Group,
Yorkshire Finance, the Trust and the underwriters named in Schedule I thereto
(the "Underwriters") for whom you are acting as Representatives. This opinion is
being delivered to you as Representatives pursuant to Section 3(c)(ii) thereof.
All capitalized terms not otherwise defined herein shall have the meanings
set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
Registration Statement and the Prospectus. In addition, we have examined, and
have relied as to matters of fact upon, the documents delivered to you at the
closing, and we have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination,
we have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents. Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. All orders, consents, or other authorizations or approvals of the
Commission legally required for the issuance and delivery of the Trust
Securities Guarantee and the Debentures Guarantee by Yorkshire Group, the
issuance and sale of the Debentures by Yorkshire Finance, the issuance and sale
of the Trust Securities by the Trust and the issuance and delivery of the
Control Certificate by the Trust under the 1935 Act have been obtained; such
orders are sufficient for the issuance and delivery of the Trust Securities
Guarantee and the Debentures Guarantee by Yorkshire Group, the issuance and sale
of the Debentures by Yorkshire Finance, the issuance and sale of the Trust
Securities by the Trust and the issuance and delivery of the Control Certificate
by the Trust under the 1935 Act; and no other order, consent or other
authorization or approval of any United States federal or New York State
governmental body (other than orders of the Commission under the Securities Act,
the Exchange Act and the TIA, which have been duly obtained, or in connection or
in compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction) is legally required for the issuance and delivery of the Trust
Securities Guarantee and the Debentures Guarantee by Yorkshire Group, the
issuance and sale of the Debentures by Yorkshire Finance, the issuance and sale
of the Trust Securities by the Trust and the issuance and delivery of the
Control Certificate by the Trust in accordance with the terms of the
Underwriting Agreement, the performance by the Trust of its obligations with
respect to the Trust Securities, the performance by Yorkshire Group of its
obligations with respect to the Trust Securities Guarantee and the Debentures
Guarantee, the performance by Yorkshire Finance of its obligations with respect
to the Debentures and the performance by each of the Offerors and the US
Affiliates under the Indenture, the Underwriting Agreement, the Trust Agreement,
the Trust Securities Guarantee Agreement, the Deposit Agreement and the
Agreement as to Expenses and Liabilities, as applicable.
B-2
2. The Indenture, assuming the due authorization, execution and delivery
thereof by Yorkshire Group, Yorkshire Finance and the Indenture Trustee, and
except as to any provisions thereof that purport to provide an independent
obligation under a currency indemnity clause after a judgment has been rendered
or to waive any immunity with respect to the attachment of property of Yorkshire
Group or Yorkshire Finance prior to the entry of judgment, upon which we do not
express any opinion, constitutes a valid and legally binding instrument of each
of Yorkshire Group and Yorkshire Finance, enforceable against each of them in
accordance with its terms, subject to the qualifications that the enforceability
of their obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Prospectus.
3. Assuming due authorization, execution and delivery thereof by
Yorkshire Finance, the Debentures, when authenticated by the Indenture Trustee
in the manner provided in the Indenture and delivered against payment therefor
by the Trust pursuant to the Trust Agreement, will constitute valid and binding
obligations of Yorkshire Finance, enforceable against Yorkshire Finance in
accordance with their terms, subject to the qualifications that the
enforceability of Yorkshire Finance's obligations under the Debentures may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and are entitled to the benefits provided by
the Indenture; and the Debentures conform as to legal matters in all material
respects to the description thereof in the Prospectus, provided that no opinion
is expressed herein with respect to material relating to DTC or its systems or
operations in the Prospectus under the heading "Description of the Junior
Subordinated Debentures-Form, Book - Entry Procedures and Transfer".
4. Assuming due authorization, execution and delivery thereof by
Yorkshire Group, and except as to any provisions thereof that purport to provide
an independent obligation under a currency indemnity clause after a judgment has
been rendered or to waive any immunity with respect to the attachment of
property of Yorkshire Group prior to the entry of judgment, upon which we do not
express any opinion, the Debentures Guarantee, when the Debentures are
authenticated by the Trustee in the manner provided in the Indenture and
delivered against payment therefor by the Trust pursuant to the Trust Agreement,
will constitute a valid and binding obligation of Yorkshire Group enforceable
against Yorkshire Group in accordance with its terms, subject to the
qualifications that the enforceability of Yorkshire Group's obligations under
the Debentures Guarantee may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Debentures Guarantee conforms as to legal matters in all material
respects to the description thereof in the Prospectus.
B-3
5. Assuming due authorization, execution and delivery of the Trust
Securities Guarantee Agreement by Yorkshire Group, and assuming due
authorization, execution and delivery thereof by the Guarantee Trustee, and
except as to any provisions thereof that purport to provide an independent
obligation under a currency indemnity clause after a judgment has been rendered
or to waive any immunity with respect to the attachment of property of Yorkshire
Group prior to the entry of judgment, upon which we do not express any opinion,
the Trust Securities Guarantee constitutes a valid and binding obligation of
Yorkshire Group enforceable against Yorkshire Group in accordance with its
terms, subject to the qualifications that the enforceability of Yorkshire
Group's obligations under the Trust Securities Guarantee may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Trust Securities Guarantee and the
Trust Securities Guarantee Agreement conforms as to legal matters in all
material respects to the descriptions thereof in the Prospectus.
6. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by each of the US Affiliates and constitutes
a valid and binding obligation of each of the US Affiliates, enforceable against
each of the US Affiliates in accordance with its terms, subject to the
qualifications that the enforceability of the US Affiliates' obligations under
the Agreement as to Expenses and Liabilities may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Agreement as to Expenses and Liabilities conforms as
to legal matters in all material respects to the description thereof in the
Prospectus.
7. Assuming due authorization, execution and delivery thereof by the
Yorkshire Finance, and assuming due authorization, execution and delivery
thereof by the Book-Entry Depositary, the Deposit Agreement (except as to any
provision thereof that purports to waive immunity with respect to the attachment
of property of Yorkshire Finance prior to the entry of judgment, upon which we
do not express any opinion) constitutes a valid and legally binding instrument
of Yorkshire Finance, enforceable against Yorkshire Finance in accordance with
its terms, subject to the qualifications that the enforceability of Yorkshire
Finance's obligations under the Deposit Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Deposit Agreement conforms as to legal matters in all
material respects to the description thereof in the Prospectus.
8. Each of the Indenture, the Trust Securities Guarantee Agreement and
the Trust Agreement has been duly qualified under the TIA.
9. The Trust Agreement has been duly authorized, executed and delivered
by AEP Resources, has been duly executed and delivered by the Administrative
Trustees, and, assuming due authorization, execution and delivery thereof by
Yorkshire
B-4
Group, and assuming due authorization, execution and delivery thereof by the
Property Trustee and the Delaware Trustee, the Trust Agreement constitutes a
valid and binding obligation of Yorkshire Group and AEP Resources, enforceable
against Yorkshire Group and AEP Resources in accordance with its terms, subject
to the qualifications that the enforceability of the obligations of Yorkshire
Group and AEP Resources under the Trust Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Trust Agreement conforms as to legal matters in all
material respects to the description thereof in the Prospectus.
10. The Underwriting Agreement has been duly executed and delivered by
the Depositor on behalf of the Trust.
11. The Trust Securities have been duly authorized by the Trust
Agreement, have been duly executed and delivered by the Administrative Trustees
and, when delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will be duly and validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust and
entitled to the benefits of the Trust Agreement; the holders of the Trust
Securities will be entitled to the same limitation of personal liability is
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; under the Delaware Act and the
Trust Agreement the issuance of the Trust Securities is not subject to any
preemptive or other similar rights; and the Trust Securities conform as to legal
matters in all material respects to the description thereof in the Prospectus,
provided that no opinion is expressed herein with respect to material relating
to DTC or its systems or operations in the Prospectus under the heading
"Description of the Trust Securities - Book-Entry Issuance".
12. The statements made in the Prospectus under the heading "Certain
Income Tax Considerations - US Federal Income Tax Considerations", to the extent
that they constitute matters of United States federal law or legal conclusions
under United States federal law, are accurate in all material respects.
13. Neither the Trust, Yorkshire Finance nor Yorkshire Group is, and
after giving effect to the offering and sale of the Trust Securities, will be an
"investment company" or a company "controlled" by an "investment company"
required to register under the Investment Company Act of 1940.
14. The execution, delivery and performance by the Offerors of the
Underwriting Agreement, the execution, delivery and performance by Yorkshire
Group and Yorkshire Finance of the Indenture, the execution, delivery and
performance by Yorkshire Group, the Administrative Trustees and AEP Resources of
the Trust Agreement, the execution, delivery and performance by Yorkshire Group
of the Trust Securities Guarantee Agreement, the execution, delivery and
performance by Yorkshire Finance of the Deposit Agreement and the execution,
delivery and performance by the US Affiliates of the Agreement as to Expenses
and Liabilities and the consummation by
B-5
the above-mentioned parties of the transactions contemplated therein and
compliance by the above-mentioned parties with their respective obligations
thereunder will not violate any provision of any federal law of the United
States of America or any law of the State of New York applicable to the above-
mentioned parties or YEG or, to the best of our knowledge, any provisions of any
order, writ, judgment or decree of any governmental instrumentality of the
United States of America or the State of New York applicable to the above-
mentioned parties or YEG (except that various consents of, and filings with
governmental authorities of, the State of New York may be required to be
obtained or made, as the case may be, in connection or compliance with the
provisions of the securities or "blue sky" laws of the State of New York.
We have not independently verified the accuracy, completeness or fairness
of the statements made or included in the Registration Statement or the
Prospectus and take no responsibility therefor, except as and to the extent set
forth in paragraphs 2, 3, 4, 5, 7, 8, 9, 11 and 12 above. In the course of the
preparation by the Offerors of the Registration Statement and the Prospectus, we
participated in conferences with certain officers and employees of the Offerors,
with representatives of Deloitte & Touche, with Xxxxx & Xxxxx, English counsel
to the Offerors, Xxxxxx & Calder, Cayman Islands counsel to Yorkshire Finance,
Xxxxxxxx Xxxxxx & Finger, P.A., Delaware counsel to the Offerors and with your
counsel. Based upon our examination of the Registration Statement and the
Prospectus, our investigations made in connection with the preparation of the
Registration Statement and the Prospectus and our participation in the
conferences referred to above, (i) we are of the opinion that the Registration
Statement, as of the Effective Date, and the Prospectus, at the time it was
filed pursuant to Rule 424(b) under the Securities Act, complied as to form in
all material respects with the requirements of the Securities Act and the TIA
and the applicable rules thereunder, except that we express no opinion as to the
financial statements or other financial or statistical data contained in the
Registration Statement or the Prospectus, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, as of the
Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, at the time it was
filed pursuant to Rule 424(b) under the Securities Act, or on the date hereof
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to (x) the
financial statements or other financial or statistical data contained in the
Registration Statement and the Prospectus or (y) material in the Registration
Statement and the Prospectus under the headings "Description of the Trust
Securities - Book-Entry Issuance" or "Description of the Junior Subordinated
Debentures - Form, Book-Entry Procedures and Transfer" with respect to DTC, its
systems or operations or "Certain Income Tax Considerations - UK Income Tax
Considerations" or "Certain Income Tax Considerations Cayman Islands Tax
Considerations".
We are members of the State Bar of New York and we do not express any
opinion herein concerning any law other than the law of the State of New York
and the federal law of the United States and, to the extent set forth herein,
the law of the State of
B-6
Delaware and, with respect to the validity of the Debentures, the law of the
Cayman Islands. In rendering the opinion expressed in paragraph 3 above with
respect to the validity of the Debentures, we have relied upon the opinion
addressed to you and dated the date hereof of Xxxxxx and Xxxxxx as to matters of
Cayman Island law. In rendering opinions of Delaware law herein, we have relied
upon the opinion addressed to you and dated the date hereof of Xxxxxxxx Xxxxxx &
Finger, P.A. as to matters of Delaware law.
This opinion is rendered solely to you and the several Underwriters in
connection with the above matter. This opinion may not be relied upon by you
and the several Underwriters for any other purpose or relied upon by or
furnished to any other person without our prior written consent.
Very truly yours,
XXXXX XXXXXXXXXX LLP
B-7
EXHIBIT C
XXXXX & OVERY OPINION
X-0
XXXXXXX X
XXXXXX & XXXXXX XXXXXXX
X-0
EXHIBIT E
WINTHROP, STIMSON, XXXXXX & XXXXXXX OPINION
E-1
EXHIBIT F
[Letterhead of DELAWARE TRUSTEE'S COUNSEL]
_______________ __, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
[Co-Managers]
As Representatives of the several Underwriters
named in Schedule I to the Underwriting
Agreement referred to below
x/x Xxxxxxx Xxxxx & Xx.
Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Yorkshire Capital Trust I
-------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to The Bank of New York
(Delaware), a Delaware banking corporation ("BONY (DE)"), in connection with
Yorkshire Capital Trust I, a business trust created under the laws of the State
of Delaware (the "Trust"), pursuant to the Trust Agreement, dated as of
__________, 1998, as amended and restated by the Amended and Restated Trust
Agreement, dated as of _____________, 1998 among BONY (DE), Yorkshire Power
Group Limited ("Yorkshire Group"), AEP Resources, Inc., the other trustees named
therein and the holders from time to time of the undivided beneficial interests
in the assets of the Trust (the "Trust Agreement"). This opinion is being
delivered to you pursuant to Section 3(c)(vi) of the Underwriting Agreement,
dated _________ __, 1998 (the "Underwriting Agreement"), among you, as the
representatives of the several Underwriters named in Schedule I thereto,
Yorkshire Group, Yorkshire Power Finance Limited and the Trust, pursuant to
which the 11,000,000 ___% Trust Securities of the Trust will be sold. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Underwriting Agreement.
We examined an original or a copy of the Trust Agreement. We have also
examined originals or copies of such other documents and such corporate records,
certificates and other statements of governmental officials and corporate
officers and other representatives of BONY(DE) as we have deemed necessary or
appropriate for the purposes of this opinion. Moreover, as to certain facts
material to the opinions expressed herein, we have relied upon the
representations and warranties contained in the documents referred to in this
paragraph.
F-1
Based upon the foregoing and upon an examination of such questions of law
as we have deemed necessary or appropriate, and subject to the assumptions,
exceptions and qualifications set forth below, we advise you that, in our
opinion:
1. BONY(DE) is duly incorporated and is validly existing in good standing
as a banking corporation with trust powers under the laws of the State of
Delaware and has the corporate power and authority to execute, deliver and
perform its obligations under the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and delivered by
BONY(DE) and constitutes a legal, valid and binding obligation of BONY(DE),
enforceable against BONY(DE), in accordance with its terms.
3. The execution and delivery of, and performance of the terms of, the
Trust Agreement by BONY(DE), do not conflict with or constitute a breach of, or
default under, the charter or by-laws of BONY(DE).
4. No consent, approval or authorization of, or registration, declaration
or filing with, any court or governmental agency or body having jurisdiction in
the premises is required under Delaware law for the execution, delivery or
performance by BONY(DE) of the Trust Agreement.
The foregoing opinions are subject to the following exceptions,
qualifications and assumptions:
(A) We are admitted to practice in the State of Delaware and we do not hold
ourselves out as being experts on the law of any other jurisdiction. The
foregoing opinions are limited to the laws of the State of Delaware and the
federal laws of the United States of America governing the banking and trust
powers of BONY(DE) (except that we express no opinion with respect to (i) state
securities or blue sky laws and (ii) federal securities laws, including, without
limitation, the Securities Act of 1933, the Securities Exchange Act of 1934,
Trust Indenture Act of 1939 and the Investment Company Act of 1940) and we have
not considered and express no opinion on the laws, rules and regulations of any
other jurisdiction.
(B) The foregoing opinions regarding enforceability are subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent transfer or conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, (ii) principles of equity
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and delivery by each
of the parties thereto, other than BONY(DE), of the Trust Agreement, and that
each of such parties has the full power, authority and legal right to execute,
deliver and perform such document.
F-2
(D) We have assumed that all signatures (other than those of the Delaware
Trustee) on documents examined by us are genuine, that all documents submitted
to us as originals are authentic, and that all documents submitted to us as
copies or specimens conform with the originals, which facts we have not
independently verified.
This opinion may be relied upon by you and the other several Underwriters
in connection with the matters set forth herein, and without our prior written
consent, may not be furnished or quoted to, or relied upon by, any other person
or entity for any purpose.
Very truly yours,
F-3
EXHIBIT G
[Letterhead of XXXXX, XXXXXX & XXXXXX, LLP]
_______________ __, 1998
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
[Co-Managers]
As Representatives
of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxx Financial Center
North Tower
New York, New York 10281-1209
YORKSHIRE CAPITAL TRUST I
___% Trust Securities
Ladies and Gentlemen:
We have acted as counsel to the Bank of New York (the "Bank") in connection
with (a) the Subordinated Debenture Indenture, dated as of __________ __, 1998
(the "Original Indenture"), among Yorkshire Power Group Limited ("Yorkshire
Group"), Yorkshire Power Finance Limited ("Yorkshire Finance") and the Bank, as
Trustee, (b) the First Supplemental Indenture dated as of __________ __, 1998
(together with the Original Indenture, herein called the "Indenture"), among
Yorkshire Group, Yorkshire Finance and the Bank, as Trustee, (c) the Trust
Securities Guarantee Agreement dated as of __________, 1998 (the "Guarantee
Agreement") between Yorkshire Group and the Bank, as guarantee trustee, (d) the
Amended and Restated Trust Agreement, dated as of __________ __, 1998 (the
"Trust Agreement") among Yorkshire Group, AEP Resources, Inc., the Bank, as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein and (e) the Deposit Agreement, dated as of
____________, 1998 (the "Deposit Agreement") between Yorkshire Finance and the
Bank, as Book-Entry Depositary.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture, the Trust Agreement, the Guarantee
Agreement, the Deposit Agreement and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New York;
G-1
ii) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, the Trust Agreement, the
Deposit Agreement and the Guarantee Agreement, has duly executed and delivered
the Indenture, the Trust Agreement, the Deposit Agreement and the Guarantee
Agreement, and, insofar as the laws governing the trust powers of the Bank are
concerned and assuming due authorization, execution and delivery thereof by the
other parties thereto, each of the Indenture, the Trust Agreement, the Deposit
Agreement and the Guarantee Agreement constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law).
iii) the execution, delivery and performance by the Bank of the Indenture,
the Trust Agreement, the Deposit Agreement and the Guarantee Agreement do not
conflict with or constitute a breach of the charter or bylaws of the Bank.
iv) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture, the Trust
Agreement or the Guarantee Agreement or the performance by the Bank of its
duties thereunder, except such as have been obtained, taken or made.
We are admitted to practice in the State of New York, and we express no
opinion as to matters governed by any laws other than the laws of the State of
New York and the Federal law of the United States of America. We are furnishing
this opinion to you solely for your benefit and the benefit of the other several
Underwriters. This opinion is not to be used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
XXXXX, XXXXXX & XXXXXX LLP
G-2
