EXHIBIT 4(A)
DEPOSIT AGREEMENT
BETWEEN
THE BANK OF NEW YORK, as Book-Entry Depositary
and
TXU EUROPE GROUP PLC, Issuer
Dated as of March 2, 2000
TABLE OF CONTENTS
Page
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ARTICLE I....................................................................1
Section 1.01. Definitions.............................................1
Section 1.02. Rules of Construction...................................2
ARTICLE II...................................................................3
Section 2.01. Deposit of the Junior Subordinated Debentures...........3
Section 2.02. Redemption of the Junior Subordinated Debentures........3
Section 2.03. Cancellation............................................3
Section 2.04. Payments in Respect of the Book-Entry Interests
and the Junior Subordinated Debentures..................4
Section 2.05. Change in Principal Amount of Junior Subordinated
Debentures..............................................4
Section 2.06. Record Date.............................................4
Section 2.07. Reports and Notices.....................................5
Section 2.08. Additional Amounts......................................5
Section 2.09. Changes Affecting Junior Subordinated Debentures........5
ARTICLE III..................................................................6
Section 3.01. Certain Duties and Responsibilities.....................6
Section 3.02. Events of Default.......................................7
Section 3.03. Certain Rights of Book-Entry Depositary.................7
Section 3.04. Not Responsible for Recitals or Issuance of Junior
Subordinated Debentures.................................8
Section 3.05. Money Held in Trust.....................................8
Section 3.06. Compensation and Reimbursement..........................8
Section 3.07. Book-Entry Depositary Required; Eligibility.............9
Section 3.08. Resignation and Removal; Appointment of Successor.......9
Section 3.09. Acceptance of Appointment by Successor.................10
Section 3.10. Merger, Conversion, Consolidation or Succession
to Business............................................11
ARTICLE IV..................................................................11
Section 4.01. Notices to Book-Entry Depositary or Issuer.............11
Section 4.02. Notice to the Registered Holders; Waiver...............12
Section 4.03. Effect of Headings and Table of Contents...............12
Section 4.04. Successors and Assigns.................................12
Section 4.05. Separability Clause....................................12
Section 4.06. Benefits of Agreement..................................12
Section 4.07. GOVERNING LAW..........................................13
Section 4.08. Jurisdiction...........................................13
Section 4.09. Counterparts...........................................13
Section 4.10. Inspection of Agreement................................13
Section 4.11. Satisfaction and Discharge.............................13
Section 4.12. Amendments.............................................14
Section 4.13. Book-Entry Depositary To Sign Amendments...............14
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DEPOSIT AGREEMENT
This Deposit Agreement (as the same may be amended from time to time
in accordance with the provisions hereof, the "Deposit Agreement"), dated as of
March 2, 2000, is among The Bank of New York, a New York banking corporation, as
book-entry depositary with respect to the Junior Subordinated Debentures
hereunder (the "Book-Entry Depositary"), TXU Europe Group plc, a public limited
company incorporated under the laws of England and Wales (the "Issuer"), and the
holders and beneficial owners from time to time of interests in the Book-Entry
Interests.
ARTICLE I
DEFINITIONS AND OTHER GENERAL PROVISIONS
Section 1.01. Definitions.
Terms not defined herein have the meanings ascribed to them in the
Indenture. The following terms, as used herein, have the following meanings:
"Book-Entry Depositary" means the party named as such in this
Agreement or its nominee or the custodian of either until a successor shall have
become such pursuant to Section 3.08 hereof, and thereafter "Book-Entry
Depositary" shall mean such successor or its nominee or the custodian of either.
"Book-Entry Interests" means the certificateless depositary interests
that shall at all times represent the right to receive 100% of the principal,
premium (if any) and interest on the underlying Junior Subordinated Debentures
from time to time received by the Book-Entry Depositary.
"Book-Entry Register" means the register in which the Book-Entry
Depositary records the registration of the Book-Entry Interests and the
registration of transfer thereof pursuant to Section 2.02 hereof.
"Corporate Trust Office" means the office of the Book-Entry Depositary
in The City of New York, at which at any particular time its corporate trust
business shall be principally administered, which at the date hereof is located
at 101 Barclay Street, New York, NY 10286, Attn: Corporate Trust Division,
Corporate Finance Group.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Guarantor" means TXU Europe Limited, a private limited company
incorporated under the laws of England and Wales.
"Indenture" means the Indenture (for Unsecured Subordinated Debt
Securities) dated as of March 2, 2000, among the Issuer, the Guarantor, and The
Bank of New York, as Trustee, relating to the Junior Subordinated Debentures as
originally executed or as it may from time to time be supplemented or amended,
including by the Series A Officer's Certificate and, for all purposes to the
extent applicable, the provisions of the Trust Indenture Act that are deemed to
be a part of and govern such instrument.
"Issuer" means the party named as such in this Agreement until a
successor replaces it pursuant to the applicable provisions of the Indenture
and, thereafter, means such successor.
"Issuer Order" means a written request or order signed in the name of
the Issuer by any officer of the Issuer or other person duly authorized by the
Board of Directors, and delivered to the Book-Entry Depositary.
"Junior Subordinated Debentures" means the 9.75% Junior Subordinated
Deferrable Interest Debentures, Series A due March 2, 2020 issued in bearer form
by the Issuer to the Book-Entry Depositary pursuant to the Indenture.
"Jurisdiction of Incorporation" means each jurisdiction in which the
Issuer or the Guarantor, as the case requires, is incorporated or organized.
"Series A Officer's Certificate" means the Officer's Certificate (as
defined in the Indenture) signed by an Authorized Officer of the Issuer and by
an Authorized Officer of the Guarantor, dated as of March 2, 2000 and
establishing certain terms of the Junior Subordinated Debentures in accordance
with the provisions of the Indenture.
"Officer's Certificate" means a certificate signed in the name of the
Issuer by an Authorized Officer of the Issuer and delivered to the Trustee or
the Book-Entry Depositary, as the case requires.
"Opinion of Counsel" means a written opinion from legal counsel, who
may be an employee of or regular counsel for the Issuer or may be other counsel
reasonably acceptable to the Book-Entry Depositary.
"Registered Holder" means, with respect to any Book-Entry Interest,
the Person in whose name such Book-Entry Interest is registered on the
Book-Entry Register maintained by the Book-Entry Depositary.
"Responsible Officer", when used with respect to the Book-Entry
Depositary, means any authorized officer of the Book-Entry Depositary including
the president, any vice president, any assistant vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, or any other
officer of the Book-Entry Depositary who customarily performs functions similar
to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any depositary matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Trustee" means The Bank of New York and its successors and assigns,
as trustee under the Indenture.
Section 1.02. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) "including" means including without limitation; and
(d) words in the singular include the plural and words in the
plural include the singular.
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ARTICLE II
BOOK-ENTRY INTERESTS
Section 2.01. Deposit of the Junior Subordinated Debentures.
The Book-Entry Depositary hereby accepts custody of the Junior
Subordinated Debentures and shall act as Book-Entry Depositary in accordance
with the terms of this Agreement. The Book-Entry Depositary shall hold the
Junior Subordinated Debentures at its Corporate Trust Office in The City of New
York, at the office of the paying agent in Luxembourg or at such place as it
shall determine with the consent of the Issuer and shall issue the Book-Entry
Interests to the Registered Holders.
Section 2.02. Registration of Transfer of the Book-Entry Interests
The Book-Entry Depositary agrees to maintain at the Book-Entry
Depositary's Corporate Trust Office the Book-Entry Register in which the
Book-Entry Depositary shall (x) upon initial receipt of the Junior Subordinated
Debentures, record the Persons designated by the Issuer as the initial
Registered Holders and (y) thereafter record the registration of transfer of
Book-Entry Interests. The Book-Entry Interests cannot be transferred unless such
transfer is recorded on the Book-Entry Register. The Book-Entry Depositary and
any agent thereof may treat the Person in whose name any Book-Entry Interest is
registered as the absolute owner of such Book-Entry Interest for the purpose of
receiving any payments on such Book-Entry Interest and for all purposes
whatsoever, whether or not overdue, and the Book-Entry Depositary shall not be
affected by notice to the contrary.
Section 2.03. Redemption of the Junior Subordinated Debentures.
In the event that the Issuer exercises any right to redeem the Junior
Subordinated Debentures in whole or in part, the Book-Entry Depositary, as
holder of Junior Subordinated Debentures, shall, upon notice from the Issuer or
the Trustee, as the case may be, surrender the Junior Subordinated Debentures at
a place of payment or such other place as the Issuer may designate, and deliver
such Junior Subordinated Debentures to the Trustee for cancellation or for
reduction of principal amount by an endorsement on the reverse thereof or in
exchange for a substitute Junior Subordinated Debenture, as the case may be.
Section 2.04. Cancellation.
If the Junior Subordinated Debentures are surrendered for payment, for
redemption in whole to any Person other than the Trustee, such Junior
Subordinated Debentures shall be surrendered to the Security Registrar for
cancellation.
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Section 2.05. Payments in Respect of the Book-Entry Interests and the
Junior Subordinated Debentures.
(a) Whenever the Book-Entry Depositary, as holder of the Junior
Subordinated Debentures, shall receive from the Trustee (or other paying agent
under the Indenture) any payment on the Junior Subordinated Debentures
(including pursuant to the Guarantee as defined in the Indenture), such payments
shall be distributed promptly to the Registered Holders on the payment date for
the Junior Subordinated Debentures. The Book-Entry Depositary shall maintain a
place of payment at its Corporate Trust Office in The City of New York. The
payment date for the Book-Entry Interests for payment of any principal or
interest shall be the same date as the payment date for the related Junior
Subordinated Debentures.
(b) The Book-Entry Depositary will forward to the Issuer or its
agents such information from its records as the Issuer may reasonably request in
writing to enable the Issuer or its agents to file necessary reports with
governmental agencies, and the Book-Entry Depositary, the Issuer or their agents
may (but shall not be required to) file any such reports necessary to obtain
benefits under any applicable tax treaties for the Registered Holders as the
beneficial owners if Interests.
(c) Notwithstanding any other provisions of this Agreement, the
Book-Entry Depositary shall be required to pay to the Registered Holders only
amounts (including Additional Amounts) received by the Book-Entry Depositary
from the Issuer under the Junior Subordinated Debentures or the Guarantor
pursuant to the Guarantee.
(d) Neither the Issuer, the Guarantor nor any agent of the Issuer or
the Guarantor (including but not limited to any paying agent) will have any
responsibility or liability for any aspect relating to payments (including
payments of Additional Amounts, if any) made or to be made by the Book-Entry
Depositary to the Registered Holders in respect of the Junior Subordinated
Debentures or the Book-Entry Interests.
Section 2.06. Change in Principal Amount of Junior Subordinated Debentures.
Whenever the principal amount at maturity of the Junior Subordinated
Debentures held by the Book-Entry Depositary is changed by the Trustee as a
result of partial redemption or otherwise, the Book-Entry Depositary shall
record on the Book-Entry Register a corresponding change in the principal amount
of the related Book-Entry Interests and notify the Registered Holders of such
corresponding change.
Section 2.07. Record Date; Action in Respect of the Book-Entry Interests or
the Junior Subordinated Debentures.
Whenever the Book-Entry Depositary shall receive notice of any action
to be taken in respect of the Book-Entry Interests or Junior Subordinated
Debentures, or whenever the Book-Entry Depositary otherwise deems it appropriate
in respect of any other matter, the Book-Entry Depositary shall fix a record
date to determine who shall be entitled to take any such action or to act in
respect of any such matter.
The Registered Holders may direct the time, method and place of
conducting any proceeding for any remedy available to the Book-Entry Depositary
or of exercising any rights or duties conferred on the Book-Entry Depositary.
However, the Book-Entry Depositary will not exercise any discretion in the
granting of consents or the taking of any other action in respect of the
Book-Entry Interests or the Junior Subordinated Debentures but it may refuse to
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follow any direction that conflicts with law or this Agreement or the Indenture
or the Junior Subordinated Debentures, subject to Section 3.01 hereof, that the
Book-Entry Depositary determines would involve it in personal liability.
Section 2.08. Reports and Notices.
The Book-Entry Depositary shall promptly (and in no event later than
10 days from receipt) send to the Registered Holders a copy of any notices,
reports and other communications received by it relating to the Issuer, the
Junior Subordinated Debentures or the Book-Entry Interests.
Section 2.09. Additional Amounts.
The Book-Entry Depositary shall pay to the Registered Holders any
Additional Amounts, as defined in the Series A Officer's Certificate, that have
been paid by the Issuer or the Guarantor to the Book-Entry Depositary.
At least 10 days prior to the first interest payment date, and at
least 10 days prior to each succeeding interest payment date if there has been
any change with respect to the matters set forth in the below-mentioned
Officer's Certificate, the Issuer will furnish the Book-Entry Depositary with an
Officer's Certificate instructing the Book-Entry Depositary whether such payment
of principal, premium, if any, or interest on such Book-Entry Interests shall be
made to Registered Holders without deduction or withholding for or on account of
any taxes, duties, assessments or other governmental charges referred to in
paragraph 16 of the Series A Officer's Certificate. If any such deduction or
withholding shall be required, prior to such interest payment date the Issuer
will furnish the Book-Entry Depositary with an Officer's Certificate that
specifies the amount required to be deducted or withheld on such payment. The
Issuer shall indemnify the Book-Entry Depositary, its officers, directors and
employees for, and hold it and them harmless against, any loss, liability or
expense reasonably incurred without negligence, willful misconduct or bad faith
on its part arising out of or in connection with actions taken or omitted by it
in reliance on any Officer's Certificate furnished to it pursuant to this
Section 2.08.
Section 2.10. Changes Affecting Junior Subordinated Debentures.
Upon any reclassification of the Junior Subordinated Debentures, or
upon any recapitalization, reorganization, merger or consolidation or sale of
assets affecting the Issuer or to which it is a party, or upon an exchange of
the Junior Subordinated Debentures pursuant to the Indenture, any securities
that shall be received by the Book-Entry Depositary in exchange for, in
conversion of or in respect of the Junior Subordinated Debentures shall be
treated as new Junior Subordinated Debentures under this Agreement and the
Book-Entry Interests shall thenceforth represent beneficial interests in such
new Junior Subordinated Debentures so received.
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ARTICLE III
THE BOOK-ENTRY DEPOSITARY
Section 3.01. Certain Duties and Responsibilities.
(a) The Book-Entry Depositary undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the
Book-Entry Depositary.
(b) In the absence of bad faith on its part, the Book-Entry
Depositary may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Book-Entry Depositary and conforming to the requirements of
this Agreement, but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the Book-Entry
Depositary, the Book-Entry Depositary shall examine the same to determine
whether or not they conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Book-Entry Depositary from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) the Book-Entry Depositary shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Book-Entry Depositary, unless the Book-Entry Depositary was negligent
in ascertaining the pertinent facts; and
(ii) the Book-Entry Depositary shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Registered Holders relating to
the time, method and place of conducting any proceeding for any remedy
available to the Book-Entry Depositary, or exercising any power
conferred upon the Book-Entry Depositary, under this Agreement or the
Indenture.
(d) No provision of this Agreement shall require the Book-Entry
Depositary to spend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability satisfactory to the Book-Entry Depositary has not been reasonably
assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Book-Entry Depositary shall be subject to the
provisions of this Section 3.01.
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Section 3.02. Events of Default.
Upon the occurrence of any Event of Default or in connection with any
other right of the holder of the Junior Subordinated Debentures under the
Indenture, and if requested by notice in writing by the Registered Holders, the
Book-Entry Depositary shall take such ministerial action as shall be requested
in such notice in respect of the Junior Subordinated Debentures.
Section 3.03. Certain Rights of Book-Entry Depositary.
Subject to the provisions of Section 3.01 hereof:
(a) the Book-Entry Depositary may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Officer's Certificate or Issuer Order or as
otherwise expressly provided herein and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) the Book-Entry Depositary may consult with counsel, and may rely
upon the written advice of such counsel or any Opinion of Counsel and shall be
protected in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(d) the Book-Entry Depositary shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Book-Entry Depositary, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Book-Entry Depositary shall determine to make such further inquiry
or investigation, it shall be entitled upon reasonable prior request and during
normal business hours to examine the books, records and premises of the Issuer,
personally or by agent or attorney;
(e) the Book-Entry Depositary may execute any of the rights hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys, but the Book-Entry Depositary shall be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed by it
hereunder;
(f) the Book-Entry Depositary shall be under no obligation to expend
or risk its own funds or to exercise, at the request or direction of the
Registered Holders, any of the rights or powers vested in it by this Agreement
or the Indenture unless the Registered Holders shall have offered to the
Book-Entry Depositary security or indemnity satisfactory to the Book-Entry
Depositary against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction; and
(g) whenever in the administration of its duties under this Agreement
the Book-Entry Depositary shall deem it desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, the
Book-Entry Depositary (unless other evidence be herein specifically prescribed)
may, in the absence of negligence or bad faith on its part, rely upon an
Officer's Certificate.
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Section 3.04. Not Responsible for Recitals or Issuance of Junior Subordinated
Debentures.
The recitals contained in the Indenture and in the Junior Subordinated
Debentures, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer, and the Guarantor, as the case may be, and the
Book-Entry Depositary assumes no responsibility for their correctness. The
Book-Entry Depositary makes no representations as to the validity or sufficiency
of this Agreement, the Indenture or of the Junior Subordinated Debentures. The
Book-Entry Depositary shall not be accountable for the use or application by the
Issuer of the proceeds with respect to the Junior Subordinated Debentures.
Section 3.05. Money Held in Trust.
Money held by the Book-Entry Depositary in trust hereunder shall be
segregated from other funds held by the Book-Entry Depositary to the extent
required by law or in accordance with good practice or as required in writing by
the Issuer. The Book-Entry Depositary shall be under no obligation to invest or
pay interest on any money received by it hereunder, except as otherwise agreed
in writing with the Issuer. Any interest accrued on funds deposited with the
Book-Entry Depositary under this Agreement shall be paid to the Issuer from time
to time and the Registered Holders shall have no claim to any such interest.
Section 3.06. Compensation and Reimbursement.
The Issuer agrees:
(a) to pay to the Book-Entry Depositary from time to time such
compensation as is agreed upon in writing for services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to reimburse the
Book-Entry Depositary upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Book-Entry Depositary in
accordance with any provision of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its agents and
counsel, which compensation, expenses and disbursements shall be set forth in
sufficient written detail to the satisfaction of the Issuer), except any such
expense, disbursement or advance as may be attributable to its or their
negligence, willful misconduct or bad faith; and
(c) to indemnify the Book-Entry Depositary for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on its part arising out of or in connection with
the acceptance or administration of this Agreement and its duties hereunder,
including the costs and expenses of defending itself against any claim of
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Indemnity provided by this Section 3.06(c) shall survive
the satisfaction and discharge of this Agreement pursuant to Section 4.11 hereof
and the termination of this Agreement for any reason.
In case any claim shall be made or action brought against the
Book-Entry Depositary for any reason for which indemnity may be sought against
the Issuer in accordance with paragraph (c) above, the Book-Entry Depositary
shall promptly notify the Issuer in writing setting forth the particulars of
such claim or action and the Issuer may assume the defense thereof. In the event
that the Issuer elects to assume such defense and select such counsel, the
Book-Entry Depositary shall have the rights to employ its own counsel, but, in
any such case, the fees and expenses of such counsel shall be at the expense of
the Book-Entry Depositary, unless (i) the Issuer agreed in writing to pay such
fees and expenses or (ii) the named parties to any such action (including any
impleaded parties) include both the Book-Entry Depositary and the Issuer and the
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Book-Entry Depositary shall have been advised by its counsel that a conflict of
interest between the Book-Entry Depositary and the Issuer may arise (and
Issuer's counsel shall have concurred with such advise) and for this reason it
is not desirable for the Issuer's counsel to represent both the Book-Entry
Depositary and the Issuer (it being understood, however, that the Issuer shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for reasonable fees and expenses
of more than one separate firm of attorneys for the Book-Entry Depositary (plus
any local counsel retained by the Book-Entry Depositary in their reasonable
judgement), which firm shall be designated in writing by the Book-Entry
Depositary). The Book-Entry Depositary agrees to give all assistance reasonably
required in connection with the conduct of any such claim or action.
When the Book-Entry Depositary incurs expenses or renders services in
connection with an Event of Default pursuant to Section 3.02 hereof or
otherwise, the expenses (including the reasonable charges and expenses of
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable bankruptcy, insolvency or other
similar law.
Section 3.07. Book-Entry Depositary Required; Eligibility.
At all times when there is a Book-Entry Depositary hereunder, such
Book-Entry Depositary shall be a corporation organized and doing business under
the laws of the United States of America, any state thereof or the District of
Columbia, having, together with its parents, a combined capital and surplus of
at least $50,000,000, subject to supervision or examination by Federal, state or
District of Columbia authority and willing to act on reasonable terms. Such
corporation shall have its principal place of business in the Borough of
Manhattan, The City of New York, if there be such a corporation in such location
willing to act upon reasonable and customary terms and conditions. If such
corporation, or its parent, publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 3.07, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
The Book-Entry Depositary hereunder shall at all times be the Trustee
under the Indenture, subject to receipt of an Opinion of Counsel that the same
Person is precluded by law from acting in such capacities. If at any time the
Book-Entry Depositary shall cease to be eligible in accordance with the
provisions of this Section 3.07, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 3.08. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Book-Entry Depositary and no
appointment of a successor Book-Entry Depositary pursuant to this Article shall
become effective until (i) the acceptance of appointment by the successor
Book-Entry Depositary in accordance with the applicable requirements of Section
3.09 hereof or (ii) the Junior Subordinated Debentures are sent to the
Registered Holders.
(b) The Book-Entry Depositary may at any time resign as Book-Entry
Depositary with respect to the Junior Subordinated Debentures by giving written
notice thereof to the Issuer and the Registered Holders, in accordance with
Section 4.01 and Section 4.02 hereof, 60 days prior to the effective date of
such resignation. The Book-Entry Depositary may be removed at any time upon 90
days' notice by the filing with it of an instrument in writing signed on behalf
of the Issuer and specifying such removal and the date when it is intended to
become effective. If the instrument of acceptance by a successor Book-Entry
Depositary required by Section 3.09 hereof shall not have been delivered to the
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Book-Entry Depositary within 30 days after the giving of such notice of
resignation or removal, the resigning Book-Entry Depositary may petition any
court of competent jurisdiction for the appointment of a successor Book-Entry
Depositary.
(c) If at any time:
(i) the Book-Entry Depositary shall cease to be eligible under
Section 3.07 hereof, or shall cease to be eligible as Trustee under
the Indenture, and shall fail to resign after written request therefor
by the Issuer or by the Registered Holders, or
(ii) the Book-Entry Depositary shall become incapable of acting
with respect to the Book-Entry Interests or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Book-Entry
Depositary or of its property shall be appointed or any public officer
shall take charge or control of the Book-Entry Depositary or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Issuer, by Board Resolution, may
remove the Book-Entry Depositary and appoint a successor Book-Entry Depositary,
and (ii) if the Issuer shall fail to remove such Book-Entry Depositary and
appoint a successor Book-Entry Depositary within 30 days of any such event, then
the Registered Holders may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Book-Entry Depositary or Book-Entry Depositaries and the appointment of a
successor Book-Entry Depositary.
(d) If the Book-Entry Depositary shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Book-Entry
Depositary for any cause, the Issuer, by Board Resolution, shall promptly
appoint a successor Book-Entry Depositary (other than the Issuer) and shall
comply with the applicable requirements of Section 3.09 hereof. If no successor
Book-Entry Depositary with respect to the Junior Subordinated Debentures shall
have been so appointed by the Issuer and accepted appointment in the manner
required by Section 3.09 within 120 days, then the Book-Entry Depository shall
surrender the Junior Subordinated Debentures in bearer form to the Trustee in
exchange for an equal aggregate principal amount of Junior Subordinated
Debentures in certificated form, in one or more certificates registered in the
names of the Registered Holders in the principal amounts owned by such
Registered Holders, and shall send such certificated Junior Subordinated
Debentures to the Registered Holders by mail or by hand.
(e) The Issuer shall give, or shall cause such successor Book-Entry
Depositary at the expense of the Issuer to give, notice of each resignation and
each removal of a Book-Entry Depositary and each appointment of a successor
Book-Entry Depositary to the Registered Holders in accordance with Section 4.02
hereof.
Each notice shall include the name of the successor Book-Entry
Depositary and the address of its Corporate Trust Office.
Section 3.09. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Book-Entry
Depositary, every such successor Book-Entry Depositary so appointed shall
execute, acknowledge and deliver to the Issuer and to the retiring Book-Entry
Depositary an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Book-Entry Depositary shall become
effective and such successor Book-Entry Depositary, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies
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and duties of the retiring Book-Entry Depositary, with like effect as if
originally named as Book-Entry Depositary hereunder; but, on the request of the
Issuer or the successor Book-Entry Depositary, such retiring Book-Entry
Depositary shall (i) execute and deliver an instrument transferring to such
successor Book-Entry Depositary all the rights and powers of the retiring
Book-Entry Depositary and (ii) duly assign, transfer and deliver to such
successor Book-Entry Depositary all property and money held by such retiring
Book-Entry Depositary hereunder. Any retiring Book-Entry Depositary shall,
nonetheless, retain a prior claim upon all property or funds held or collected
by such Book-Entry Depositary to secure any amounts then due it pursuant to
Section 3.06 hereof except to the extent that such prior claim and security
would breach or constitute a default under the Indenture or Junior Subordinated
Debentures.
(b) Upon request of any such successor Book-Entry Depositary, the
Issuer shall execute any and all instruments required to more fully and
certainly vest in and confirm to such successor Book-Entry Depositary all such
rights, powers and agencies referred to in paragraph (a) of this Section 3.09.
(c) No successor Book-Entry Depositary shall accept its appointment
unless at the time of such acceptance such successor Book-Entry Depositary shall
be eligible under this Article.
(d) Upon acceptance of appointment by any successor Book-Entry
Depositary as provided in this Section 3.09, the Issuer shall give notice
thereof to the Registered Holders in accordance with Section 4.02 hereof. If the
acceptance of appointment is substantially contemporaneous with the resignation
of the Book-Entry Depositary, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 3.08(b) hereof.
If the Issuer fails to give such notice within 10 days after acceptance of
appointment by the successor Book-Entry Depositary, the successor Book-Entry
Depositary shall cause such notice to be given at the expense of the Issuer.
Section 3.10. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Book-Entry Depositary may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Book-Entry Depositary shall be
a party, or any corporation succeeding to all or substantially all the corporate
trust business of the Book-Entry Depositary, shall be the successor of the
Book-Entry Depositary hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Notices to Book-Entry Depositary or Issuer.
Any request, demand, authorization, direction, notice, consent, or
waiver or other document provided or permitted by this Agreement to be made
upon, given or furnished to, or filed with,
(a) the Book-Entry Depositary by the Registered Holders, the Trustee,
the Issuer or the Guarantor shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished or filed
in writing and personally delivered or mailed, first-class postage prepaid, to
the Book-Entry Depositary at its Corporate Trust Office, Attention: Corporate
Trust Division, Corporate Finance Group, or at any other address previously
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furnished in writing by the Book-Entry Depositary to the Registered Holders, the
Trustee, the Guarantor and the Issuer, or
(b) the Issuer, by the Book-Entry Depositary or by the Registered
Holders shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid to TXU Europe Group plc, c/o
The Adelphi, 1-11 John Adam Street, London, England WC2N 6HT, Attention:
Treasurer or at any other address previously furnished in writing to the
Book-Entry Depositary by the Issuer.
Section 4.02. Notice to the Registered Holders; Waiver.
Where this Agreement provides for notice to the Registered Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided or as provided in Letter of Representations) if in writing
and mailed, first-class postage prepaid, to the Registered Holders at the
address notified to the Book-Entry Depositary, in each case not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by the Registered Holders shall be filed with the
Book-Entry Depositary, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Book-Entry
Depositary shall constitute a sufficient notification for every purpose
hereunder.
Section 4.03. Effect of Headings and Table of Contents.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 4.04. Successors and Assigns.
All covenants and agreements in this Agreement and the Junior
Subordinated Debentures by the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 4.05. Separability Clause.
In case any provision in this Agreement or in the Junior Subordinated
Debentures shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions hereof and thereof shall not in
any way be affected or impaired thereby.
Section 4.06. Benefits of Agreement.
Nothing in this Agreement, the Junior Subordinated Debentures or the
Indenture, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any benefits or any legal or equitable
right, remedy or claim under this Agreement, provided that the Registered
Holders shall be intended third-party beneficiaries of this Agreement. The
Registered Holders shall be party to this Agreement and shall be bound by all of
the terms and conditions hereof and of the Indenture and the Junior Subordinated
Debentures, by their acceptance of delivery of the Interests or beneficial
interests therein.
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Section 4.07. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 4.08. Jurisdiction.
(a) The Issuer agrees that any legal suit, action or proceeding
against the Issuer brought by the Book-Entry Depositary arising out of or based
upon this Agreement may be instituted in any state or Federal court in the
Borough of Manhattan, The City of New York, and waives any objection which it
may now or hereafter have to the laying of venue of any such proceeding and,
until the satisfaction and discharge of this Agreement pursuant to Section 4.11
hereof, irrevocably submits to the nonexclusive jurisdiction of such courts in
any suit, action or proceeding.
(b) The Issuer has appointed Thelen Reid & Priest LLP at 40 West 57th
Street, New York, New York 10019, as its authorized agent (the "Authorized
Agent") upon whom process may be served in any legal suit, action or proceeding
arising out of or based upon this Agreement which may be instituted in the
Supreme Court of New York, New York County or the United States District Court
for the Southern District of New York by the Registered Holders or the
Book-Entry Depositary, and expressly accepts the nonexclusive jurisdiction of
any such court in respect of any such action. Such appointment shall be
irrevocable. Service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the Issuer. Notwithstanding the
foregoing, any action based on this Agreement may be instituted by the
Book-Entry Depositary in any competent court in England or Wales.
(c) To the extent that the Issuer may in any jurisdiction claim for
itself or its assets immunity (to the extent such immunity may now or hereafter
exist, whether on the grounds of sovereign immunity or otherwise) from suit,
execution, attachment (whether in aid of execution, before judgment or
otherwise) or other legal process (whether through service or notice or
otherwise), and to the extent that in any such jurisdiction there may be
attributed to itself or its assets such immunity (whether or not claimed), the
Issuer irrevocably agrees with respect to any matter arising under this Deposit
Agreement for the benefit of the Registered Holders from time to time of the
Book-Entry Interests, not to claim, and irrevocably waives, such immunity to the
full extent permitted by the laws of such jurisdiction.
Section 4.09. Counterparts.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 4.10. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office of the Book-Entry
Depositary for inspection by the Registered Holders.
Section 4.11. Satisfaction and Discharge.
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This Agreement upon Issuer Order shall cease to be of further effect,
and the Book-Entry Depositary, at the expense of the Issuer shall execute proper
instruments acknowledging satisfaction and discharge of this Agreement, when (i)
the Indenture has been satisfied and discharged pursuant to the provisions
thereof and all of the Junior Subordinated Debentures have been canceled in
accordance with the provisions of Section 2.07 and the Indenture, (ii) the
Issuer has paid or caused to be paid all sums payable hereunder by the Issuer
and (iii) the Issuer has delivered to the Book-Entry Depositary an Officer's
Certificate and an Opinion of Counsel, stating that all conditions precedent
herein provided relating to the satisfaction and discharge of this Agreement
have been complied with.
Section 4.12. Amendments.
The Issuer and the Book-Entry Depositary may amend this Agreement
without the consent of the Registered Holders:
(a) to cure any formal defect, omission, inconsistency or ambiguity
herein;
(b) to add to the covenants and agreements of the Issuer or the
Book-Entry Depositary;
(c) to effect the assignment of the Book-Entry Depositary's rights
and duties to a qualified successor as provided herein;
(d) to comply with any requirements of the Securities Act, the
Exchange Act, the Investment Company Act of 1940, as amended, the Trust
Indenture Act, or any other applicable securities laws;
(e) to modify this Agreement in connection with an amendment to the
Indenture that does not require the consent of the Registered Holders, or
(f) to modify, alter, amend or supplement this Agreement in any other
respect not inconsistent with this Agreement which, in the opinion of counsel
acceptable to the Issuer, is not materially adverse to the Registered Holder.
The Issuer and the Book-Entry Depositary, with the consent of the
Registered Holder, can make such changes as are necessary to effect and
implement a substitution of a successor depositary for the Registered Holder.
Except as set forth in this Section 4.12, no amendment which
materially adversely affects the Registered Holder or beneficial owners of
Interests may be made to this Agreement without the consent of the Registered
Holder or such beneficial owner.
Section 4.13. Book-Entry Depositary To Sign Amendments.
The Book-Entry Depositary shall sign any amendment authorized pursuant
to Section 4.12 hereof if the amendment does not materially adversely affect the
rights, duties, liabilities or immunities of the Book-Entry Depositary. If it
does, the Book-Entry Depositary may, but need not sign it.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first written above.
TXU EUROPE GROUP PLC
By: /s/ Kirk R. Oliver
-------------------------------------
THE BANK OF NEW YORK,
as Book-Entry Depositary
By: /s/ Walter N. Gitlin
-------------------------------------
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