EXHIBIT 4(ttt)
PREFERRED TRUST SECURITIES GUARANTEE AGREEMENT
Between
TXU Europe Limited
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
March 2, 2000
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.........................................................1
SECTION 1.01 DEFINITIONS.............................................1
ARTICLE II TRUST INDENTURE ACT................................................4
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION........................4
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED TRUST SECURITIES..........4
SECTION 2.03 REPORTS BY THE TRUST GUARANTEE TRUSTEE..................4
SECTION 2.04 PERIODIC REPORTS TO TRUST GUARANTEE TRUSTEE.............5
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT........5
SECTION 2.06 EVENTS OF DEFAULT; WAIVER...............................5
SECTION 2.07 EVENT OF DEFAULT; NOTICE................................5
SECTION 2.08 CONFLICTING INTERESTS...................................5
ARTICLE III POWERS, DUTIES AND RIGHTS OF Trust GUARANTEE TRUSTEE..............6
SECTION 3.01 POWERS AND DUTIES OF THE TRUST GUARANTEE TRUSTEE........6
SECTION 3.02 CERTAIN RIGHTS OF TRUST GUARANTEE TRUSTEE...............7
SECTION 3.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF PREFERRED
TRUST SECURITIES GUARANTEE..............................9
ARTICLE IV Trust GUARANTEE TRUSTEE............................................9
SECTION 4.01 TRUST GUARANTEE TRUSTEE; ELIGIBILITY....................9
SECTION 4.02 COMPENSATION AND REIMBURSEMENT.........................10
SECTION 4.03 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUST
GUARANTEE TRUSTEE......................................11
ARTICLE V GUARANTEE..........................................................12
SECTION 5.01 GUARANTEE..............................................12
SECTION 5.02 WAIVER OF NOTICE AND DEMAND............................12
SECTION 5.03 OBLIGATIONS NOT AFFECTED...............................12
SECTION 5.04 RIGHTS OF HOLDERS......................................13
SECTION 5.05 GUARANTEE OF PAYMENT...................................13
SECTION 5.06 SUBROGATION............................................13
SECTION 5.07 INDEPENDENT OBLIGATIONS................................14
SECTION 5.08 ADDITIONAL AMOUNTS.....................................14
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION; COVENANTS..............15
SECTION 6.01 LIMITATION OF TRANSACTIONS.............................15
SECTION 6.02 SUBORDINATION..........................................16
ARTICLE VII TERMINATION......................................................17
SECTION 7.01 TERMINATION............................................17
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ARTICLE VIII MISCELLANEOUS...................................................17
SECTION 8.01 SUCCESSORS AND ASSIGNS.................................17
SECTION 8.02 AMENDMENTS.............................................17
SECTION 8.03 CONSOLIDATIONS AND MERGERS.............................17
SECTION 8.04 NOTICES................................................18
SECTION 8.05 BENEFIT................................................19
SECTION 8.06 INTERPRETATION.........................................19
SECTION 8.07 GOVERNING LAW..........................................19
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CROSS-REFERENCE TABLE*
---------------------
Section of Section of
Trust Indenture Act Preferred
of 1939, as amended Trust
- ------------------- Securities
Guarantee
---------
310(a)...........................................................4.01(a)
310(b)...........................................................4.01(c), 2.08
310(c)...........................................................Inapplicable
311(a)...........................................................2.02(b)
311(b)...........................................................2.02(b)
311(c)...........................................................Inapplicable
312(a)...........................................................2.02(a)
312(b)...........................................................2.02(b)
313..............................................................2.03
314(a)...........................................................2.04
314(b)...........................................................Inapplicable
314(c)...........................................................2.05
314(d)...........................................................Inapplicable
314(e)...........................................................1.01, 2.05,
3.02
314(f)...........................................................2.01, 3.02
315(a)...........................................................3.01(d)
315(b)...........................................................2.07
315(c)...........................................................3.01
315(d)...........................................................3.01(d)
316(a)...........................................................5.04(a), 2.06
316(b)...........................................................5.03
316(c)...........................................................2.02
317(a)...........................................................Inapplicable
317(b)...........................................................Inapplicable
318(a)...........................................................2.01(b)
318(b)...........................................................2.01
318(c)...........................................................2.01(a)
- -------------
* This Cross-Reference Table does not constitute part of the Preferred Trust
Securities Guarantee and shall not affect the interpretation of any of its terms
or provisions.
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PREFERRED TRUST SECURITIES GUARANTEE AGREEMENT
This PREFERRED TRUST SECURITIES GUARANTEE AGREEMENT (this
"Preferred Trust Securities Guarantee"), dated as of March 2, 2000, is executed
and delivered by TXU Europe Limited, a private limited company incorporated
under the laws of England and Wales (the "Guarantor"), and The Bank of New York,
as trustee (the "Trust Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Trust Securities (as defined
herein) of TXU Europe Capital I, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (as
the same may be amended from time to time in accordance with its terms, the
"Trust Agreement"), dated as of March 2, 2000 among the Trustees named therein,
TXU Business Services Company, as Initial Depositor, TXU Europe Limited, as
Successor Depositor, ______________, as Control Party, and the several Holders
(as defined therein), the Issuer is issuing the Preferred Trust Securities (as
defined in the Trust Agreement) representing undivided beneficial interests in
the assets of the Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, in order to enhance the value of the Preferred Trust
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Preferred Trust Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred Trust
Securities Guarantee for the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Preferred Trust
Securities Guarantee, the terms set forth below shall, unless the context
otherwise requires, have the following meanings. Capitalized or otherwise
defined terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement or the Partnership Agreement as in
effect on the date hereof.
"Affiliate Investment Instrument" shall have the meaning set
forth in the Partnership Agreement.
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law to close.
"Control Certificate" shall have the meaning set forth in the
Trust Agreement.
"Control Party" shall have the meaning set forth in the Trust
Agreement.
"Distributions" shall have the meaning set forth in the
Partnership Agreement.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Trust Securities Guarantee.
"Finance Subsidiary" means any wholly-owned subsidiary of the
Guarantor the principal purpose of which is to raise capital for the Guarantor
by issuing securities that are guaranteed by the Guarantor and the proceeds of
which are loaned to or invested in the Guarantor or one or more of its
Affiliates.
"Funding" means TXU Eastern Funding Company or its successor.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Trust
Securities, to the extent not paid or made by or on behalf of the Issuer: (i)
any accumulated and unpaid distributions on the Preferred Trust Securities to
the extent that the Issuer has funds available for such payment, (ii) the
redemption price and all accumulated and unpaid distributions to the date of
redemption (the "Redemption Price") with respect to any Preferred Trust
Securities called for redemption by the Issuer to the extent that the Issuer has
funds available for such payment, (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Preferred Partnership Securities to the Holders in
exchange for Preferred Trust Securities as provided in the Trust Agreement or
upon a redemption of all of the Preferred Trust Securities), the lesser of (a)
the aggregate of the Liquidation Amount of all Preferred Trust Securities and
all accumulated and unpaid distributions on the Preferred Trust Securities to
the date of payment to the extent that the Issuer has funds available for such
payment, and (b) the amount of assets of the Issuer, after satisfaction of all
liabilities, remaining available for distribution to Holders in liquidation of
the Issuer (in either case, the "Liquidation Distribution"). The term Guarantee
Payments shall include any Additional Amounts (as defined in Section 5.08
hereof) payable by the Guarantor in respect of payments under this Preferred
Trust Securities Guarantee.
"Holder" means a Person in whose name a Preferred Trust Security
or Preferred Trust Securities is registered on the book and records of the
Issuer; provided, however, that in determining whether the holders of the
requisite percentage of Preferred Trust Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or
any Affiliate of the Guarantor.
"Investment Affiliate" shall have the meaning set forth in the
Partnership Agreement.
"Investment Event of Default" shall have the meaning set forth in
the Partnership Agreement.
"Jurisdiction of Incorporation" shall mean each jurisdiction in
which the Guarantor is incorporated or organized.
"Officer's Certificate" means a certificate signed by any
Authorized Officer of the Guarantor, and delivered to the Trust Guarantee
Trustee. Any Officer's Certificate or Opinion of Counsel delivered with respect
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to compliance with a condition or covenant provided for in this Preferred Trust
Securities Guarantee shall include:
(a) a statement that the Person signing the Officer's
Certificate or the Opinion of Counsel has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such Person in rendering the
Officer's Certificate or the Opinion of Counsel;
(c) a statement that such Person has made such examination or
investigation as, in such Person's opinion, is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such Person,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Trust Guarantee Trustee or the Guarantor or an Affiliate of
the Guarantor, or an employee or any thereof, who shall be acceptable to the
Trust Guarantee Trustee.
"Partnership" means TXU Europe Funding I, L.P. or its successors
permitted by the Partnership Agreement.
"Partnership Agreement" means the Amended and Restated Agreement
of Limited Partnership of the Partnership, dated as of March 2, 2000, among TXU
Europe Limited, a private limited company incorporated under the laws of England
and Wales, as general partner, the Issuer, as initial limited partner and such
other persons who become limited partners as provided therein.
"Preferred Entitlements" shall have the meaning set forth in the
Partnership Agreement and, for purposes of this Preferred Trust Securities
Guarantee, shall include any Compounded Preferred Entitlements (as defined in
the Partnership Agreement).
"Preferred Partnership Securities" means those securities
representing limited partnership interests in the Partnership.
"Successor Trust Guarantee Trustee" means a successor Trust
Guarantee Trustee possessing the qualifications to act as Trust Guarantee
Trustee under Section 4.01.
"Tax Payments" means any direct or indirect payment to
governmental authorities, as and when due, in respect of taxes imposed by the
United States, the United Kingdom, or any other country in which the Guarantor
or its subsidiaries operate, and arising from the operations of the Guarantor,
Funding, the Partnership, the Trust or any other subsidiary of the Guarantor.
"Trust Agreement" shall have the meaning set forth on the first
page hereof.
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"Trust Guarantee Trustee" means The Bank of New York until a
Successor Trust Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Trust Securities Guarantee
and thereafter means each such Successor Trust Guarantee Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Trust Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required or deemed to be part of
this Preferred Trust Securities Guarantee and shall, to the extent applicable,
be governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Trust Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust Indenture Act, such
duties imposed by the Trust Indenture Act shall control.
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED TRUST SECURITIES.
(a) The Guarantor shall furnish or cause to be furnished to the
Trust Guarantee Trustee (a) semiannually, not later than May 1 and November 1 in
each year, a list, in such form as the Trust Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of a
date not more than 15 days prior to the delivery thereof, and (b) at such other
times as the Trust Guarantee Trustee may request in writing, within 30 days
after the receipt by the Guarantor of any such request, a List of Holders as of
a date not more than 15 days prior to the time such list is furnished; provided
that, the Guarantor shall not be obligated to provide such List of Holders at
any time the List of Holders does not differ from the most recent List of
Holders given to the Trust Guarantee Trustee by the Guarantor. The Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Trust Guarantee Trustee shall comply with its
obligations under Section 311(a) of the Trust Indenture Act, subject to the
provisions of Section 311(b) of the Trust Indenture Act, and Section 312(b) of
the Trust Indenture Act.
SECTION 2.03 REPORTS BY THE TRUST GUARANTEE TRUSTEE. Within 60
days after May 15 of each year, commencing May 15, 2000, the Trust Guarantee
Trustee shall provide to the Holders such reports as are required by Section
313(a) of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313(a) of the Trust Indenture Act. The Trust Guarantee
Trustee shall also comply with the requirements of Sections 313(b), (c) and (d)
of the Trust Indenture Act.
SECTION 2.04 PERIODIC REPORTS TO TRUST GUARANTEE TRUSTEE. The
Guarantor shall provide to the Trust Guarantee Trustee such documents, reports
and information as are required by Section 314 of the Trust Indenture Act, if
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any, and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Trust Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this Preferred Trust
Securities Guarantee as and to the extent required by Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer or director and any opinion of counsel required to be given by counsel,
in each case pursuant to Section 314(c) of the Trust Indenture Act, shall be
given in the form of an Officer's Certificate and an Opinion of Counsel,
respectively.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of Preferred Trust Securities may, by vote, on
behalf of all of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Preferred Trust Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 2.07 EVENT OF DEFAULT; NOTICE.
(a) The Trust Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, a notice of such Event of Default known to the Trust
Guarantee Trustee, unless such default shall have been cured or waived before
the giving of such notice, provided that the Trust Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Trust Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders. (b) The Trust Guarantee Trustee
shall not be deemed to have knowledge of any Event of Default unless a
Responsible Officer of the Trust Guarantee Trustee charged with the
administration of the Trust Agreement shall have received a written notice
thereof or a Responsible Officer of the Trust Guarantee Trustee charged with the
administration of this Preferred Trust Securities Guarantee shall have obtained
actual knowledge thereof.
SECTION 2.08 CONFLICTING INTERESTS. The Trust Agreement, the
Partnership Guarantee, the Indenture (For Subordinated Unsecured Debt
Securities) dated as of March 2, 2000 of Funding and the Guarantor to The Bank
of New York, as trustee, and the Indenture (For Subordinated Unsecured Debt
Securities) dated as of March 2, 2000 of TXU Europe Group plc and the Guarantor
to The Bank of New York, as trustee, shall be deemed to be specifically
described in this Preferred Trust Securities Guarantee for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUST GUARANTEE TRUSTEE
SECTION 3.01 POWERS AND DUTIES OF THE TRUST GUARANTEE TRUSTEE.
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(a) This Preferred Trust Securities Guarantee shall be held by
the Trust Guarantee Trustee for the benefit of the Holders, and the Trust
Guarantee Trustee shall not transfer this Preferred Trust Securities Guarantee
or any rights hereunder to any Person except to a Holder exercising his or her
rights pursuant to Section 5.04 or to a Successor Trust Guarantee Trustee on
acceptance by such Successor Trust Guarantee Trustee of its appointment to act
as Successor Trust Guarantee Trustee. The right, title and interest of the Trust
Guarantee Trustee shall automatically vest in any Successor Trust Guarantee
Trustee, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Trust Guarantee Trustee.
(b) The Trust Guarantee Trustee, prior to the occurrence of any
Event of Default and after the curing or waiving of all Events of Default that
may have occurred, shall undertake to perform such duties and only such duties
as are specifically set forth in this Preferred Trust Securities Guarantee, and
no implied covenants or obligations shall be read into this Preferred Trust
Securities Guarantee against the Trust Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.06), and is actually known to a Responsible Officer of the Trust Guarantee
Trustee, the Trust Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Trust Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Preferred Trust Securities Guarantee
shall be construed to relieve the Trust Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Trust Guarantee
Trustee shall be determined solely by the express provisions of this Preferred
Trust Securities Guarantee, and the Trust Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Preferred Trust Securities Guarantee, and no implied covenants
or obligations shall be read into this Preferred Trust Securities Guarantee
against the Trust Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Trust Guarantee Trustee, the Trust Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trust Guarantee
Trustee and conforming to the requirements of this Preferred Trust Securities
Guarantee; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trust
Guarantee Trustee, the Trust Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this
Trust Guarantee;
(ii) the Trust Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Trust
Guarantee Trustee, unless it shall be proved that the Trust Guarantee Trustee
6
was negligent in ascertaining the pertinent facts upon which such judgment was
made;
(iii)the Trust Guarantee Trustee 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 Holders of a Majority in Liquidation Amount
of the Preferred Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trust Guarantee
Trustee, or exercising any trust or power conferred upon the Trust Guarantee
Trustee under this Preferred Trust Securities Guarantee; and
(iv) no provision of this Preferred Trust Securities
Guarantee shall require the Trust Guarantee Trustee to expend 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 the
Trust Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly provided, every provision
of this Preferred Trust Securities Guarantee relating to the conduct or
affecting the liability of or affording protection to the Trust Guarantee
Trustee shall be subject to the provisions of Sections 3.01(b) and 3.01(c).
SECTION 3.02 CERTAIN RIGHTS OF TRUST GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) the Trust Guarantee Trustee may rely and shall be fully
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 reasonably believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Preferred Trust Securities Guarantee shall be sufficiently evidenced by an
Officer's Certificate;
(iii)whenever, in the administration of this Preferred
Trust Securities Guarantee, the Trust Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or omitting to
take any action hereunder, the Trust Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officer's Certificate which, upon receipt of such
request from the Trust Guarantee Trustee, shall be promptly delivered by the
Guarantor;
(iv) the Trust Guarantee Trustee may consult with counsel of
its choice, and the written advice or Opinion of Counsel with respect to legal
matters shall be full and complete authorization and protection in respect of
any action which is within the scope of such advice or opinion taken, suffered
or omitted by it hereunder in good faith and in accordance with such advice or
opinion; such counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees; the Trust Guarantee Trustee shall have the
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right at any time to seek instructions concerning the administration of this
Preferred Trust Securities Guarantee from any court of competent jurisdiction;
(v) the Trust Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Trust Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Trust Guarantee Trustee such
adequate security and indemnity as would satisfy a reasonable person in the
position of the Trust Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Trust Guarantee Trustee; provided that, nothing
contained in this Section 3.02(a)(v) shall be taken to relieve the Trust
Guarantee Trustee, upon the occurrence and continuance of an Event of Default,
of its obligation under the last sentence of Section 3.01(b) to exercise the
rights and powers vested in it by this Preferred Trust Securities Guarantee;
(vi) the Trust Guarantee Trustee shall not be bound except
in the case of manifest error 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 Trust Guarantee
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(vii)the Trust Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Trust Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder;
(viii)whenever in the administration of this Preferred
Trust Securities Guarantee the Trust Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Trust Guarantee Trustee (1) may request
instructions from the Holders of a Majority in Liquidation Amount of the
Preferred Trust Securities, (2) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and (3) shall
be protected in relying on or acting in accordance with such instructions;
(ix) the Trust Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (including any
financing or continuation statement or any tax or securities form) (or any
re-recording, refiling or re-registration thereof);
(x) the Trust Guarantee Trustee shall not be liable for any
action taken, suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Preferred Trust Securities Guarantee; and
(xi) any action taken by the Trust Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Trust Securities, and
the signature of the Trust Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall be
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required to inquire as to the authority of the Trust Guarantee Trustee to so act
or as to its compliance with any of the terms and provisions of this Preferred
Trust Securities Guarantee, both of which shall be conclusively evidenced by the
Trust Guarantee Trustee or its agent taking such action.
(b) No provision of this Preferred Trust Securities Guarantee
shall be deemed to impose any duty or obligation on the Trust Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Trust Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Trust Guarantee Trustee shall be construed to be a duty to act
in accordance with such power or authority.
SECTION 3.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
PREFERRED TRUST SECURITIES GUARANTEE.
The recitals contained in this Preferred Trust Securities
Guarantee shall be taken as the statements of the Guarantor, and the Trust
Guarantee Trustee does not assume any responsibility for their correctness. The
Trust Guarantee Trustee makes no representation as to the validity or
sufficiency of this Preferred Trust Securities Guarantee.
ARTICLE IV
TRUST GUARANTEE TRUSTEE
SECTION 4.01 TRUST GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Trust Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes of
this Section 4.01(a)(ii), 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.
(b) If at any time the Trust Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Trust Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.03(c).
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(c) If the Trust Guarantee Trustee has acquired or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trust Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02 COMPENSATION AND REIMBURSEMENT.
The Guarantor agrees:
(a) to pay the Trust Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Trust Guarantee Trustee shall
from time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trust Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trust Guarantee Trustee in
accordance with the provisions of this Preferred Trust Securities Guarantee
(including the reasonable compensation and expenses of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify each of the Trust Guarantee Trustee and any
predecessor Trust Guarantee Trustee for, and to hold it harmless from and
against, any and all loss, damage, claim, liability or expense, including taxes
(other than taxes based upon the income of the Trust Guarantee Trustee) incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance of the trusts created by, or the administration of, this
Preferred Trust Securities Guarantee, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Guarantor under this Section, the Trust Guarantee Trustee shall be entitled upon
5 days prior notice in writing to the Guarantor to exercise a lien prior to the
Preferred Trust Securities upon all the property and funds held or collected by
the Trust Guarantee Trustee as such, except funds held in trust for the payment
of principal of, and premium (if any) or interest on, particular obligations of
the Guarantor under this Preferred Trust Securities Guarantee.
"Trust Guarantee Trustee" for purposes of this Section shall
include any predecessor Trust Guarantee Trustee; provided, however, that the
negligence, willful misconduct or bad faith of any Trust Guarantee Trustee
hereunder shall not affect the rights of any other Trust Guarantee Trustee
hereunder.
The provisions of this Section shall survive the termination of
this Preferred Trust Securities Guarantee.
SECTION 4.03 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUST
GUARANTEE TRUSTEE.
10
(a) Subject to Section 4.03(b), unless an Event of Default shall
have occurred and be continuing, the Trust Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Trust Guarantee Trustee shall not be removed until a
Successor Trust Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Trust Guarantee
Trustee and delivered to the Guarantor.
(c) The Trust Guarantee Trustee appointed to office shall hold
office until a Successor Trust Guarantee Trustee shall have been appointed or
until its removal or resignation. The Trust Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Trust Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Trust Guarantee
Trustee has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Trust Guarantee Trustee and delivered to the
Guarantor and the resigning Trust Guarantee Trustee.
(d) If no Successor Trust Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.03 within 60
days after delivery to the Guarantor of an instrument of resignation or removal,
the Trust Guarantee Trustee resigning or being removed may petition any court of
competent jurisdiction for appointment of a Successor Trust Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Trust Guarantee Trustee.
(e) The Guarantor shall give notice of each resignation and each
removal of the Trust Guarantee Trustee and each appointment of a Successor Trust
Guarantee Trustee to all Holders in the manner provided in Section 8.03 hereof.
Each notice shall include the name of the Successor Trust Guarantee Trustee and
the address of its Corporate Trust Office.
(f) No Trust Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Trust Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01 GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the Issuer),
as and when due, regardless of any defense, right of set-off or counterclaim
that the Issuer may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders.
SECTION 5.02 WAIVER OF NOTICE AND DEMAND. The Guarantor hereby
waives notice of acceptance of this Preferred Trust Securities Guarantee and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Trust Guarantee Trustee, the
Issuer or any other Person before proceeding against the Guarantor, protest,
11
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.03 OBLIGATIONS NOT AFFECTED. The obligation of the
Guarantor to make the Guarantee Payments under this Preferred Trust Securities
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Trust Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the distributions, Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Preferred Trust Securities or
the extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Preferred Trust Securities (other than
pursuant to the terms of the Trust Agreement);
(c) any failure, omission, delay or lack of diligence on the
part of the Property Trustee or the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Property Trustee or the
Holders pursuant to the terms of the Preferred Trust Securities, or any action
on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Trust Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Trust Guarantee Trustee, the Property
Trustee or the Holders to give notice to, or obtain consent of, the Guarantor or
any other Person with respect to the happening of any of the foregoing.
SECTION 5.04 RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that: (i) this Preferred Trust Securities Guarantee will be
deposited with the Trust Guarantee Trustee to be held for the benefit of the
Holders; (ii) if an Event of Default or a Trust Enforcement Event has occurred
and is continuing, the Trust Guarantee Trustee has the right to enforce this
Preferred Trust Securities Guarantee on behalf of the Holders; (iii) the Holders
of a Majority in Liquidation Amount of the Preferred Trust Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trust Guarantee Trustee in respect of this Preferred
Trust Securities Guarantee or exercising any trust or power conferred upon the
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Trust Guarantee Trustee under this Preferred Trust Securities Guarantee; and
(iv) if the Trust Guarantee Trustee fails to enforce its rights under this
Preferred Trust Securities Guarantee after a Holder has made a written request
therefor, such Holder may institute a legal proceeding directly against the
Guarantor to enforce the Trust Guarantee Trustee's rights under this Preferred
Trust Securities Guarantee without first instituting a legal proceeding against
the Issuer, the Trust Guarantee Trustee or any other Person. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee Payment when due, a
Holder may directly institute a proceeding in that Holder's own name against the
Guarantor for enforcement of this Preferred Trust Securities Guarantee for
payment. The Guarantor waives any right or remedy to require that any action be
brought first against the Issuer, the Trust Guarantee Trustee or any other
Person before proceeding directly against the Guarantor.
SECTION 5.05 GUARANTEE OF PAYMENT. This Preferred Trust
Securities Guarantee creates a guarantee of payment and not of collection. This
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication).
SECTION 5.06 SUBROGATION. The Guarantor shall be subrogated to
all, if any, rights of the Holders against the Issuer in respect of any amounts
paid to the Holders by the Guarantor under this Preferred Trust Securities
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Preferred Trust Securities Guarantee, if, at the time of any such payment, any
amounts of Guarantee Payments are due and unpaid under this Preferred Trust
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07 INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Trust Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Preferred Trust Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.03.
SECTION 5.08 ADDITIONAL AMOUNTS. All Guarantee Payments shall
be made free and clear of, and without withholding or deduction for or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed levied, collected, withheld or assessed by a
jurisdiction in which the Guarantor is incorporated or organized or managed or
controlled or has a place of business or any political subdivision or taxing
authority thereof (each, a "Taxing Jurisdiction"), unless such withholding or
deduction is required by law. In the event of any such withholding or deduction
("Gross-Up Taxes"), the Guarantor shall pay to each Holder of the Preferred
Trust Securities such additional amounts ("Additional Amounts") as shall be
necessary so that the net amount received by such Holder after withholding or
deduction shall equal the amount that would otherwise have been due to such
Holder in the absence of such withholding or deduction, except that no such
Additional Amounts shall be payable:
13
(A) to, or to a Person on behalf of, a Holder who
is liable for Gross-Up Taxes with respect to the Preferred Trust Securities
Guarantee, by reason of such Holder having some connection with a relevant
Taxing Jurisdiction (including being a citizen or resident or national of, or
carrying on a business or maintaining a permanent establishment in, or being
physically present in, such Taxing Jurisdiction) other than through the mere
receipt of Guarantee Payments unless, in the case of the United Kingdom, that
connection arises solely as a result of the Control Party being a resident of
the United Kingdom;
(B) to, or to a Person on behalf of, a Holder who
presents a Preferred Trust Security (whenever presentation is required) for
payment more than 30 days after the date on which payment first becomes due
except to the extent that such Holder would have been entitled to such
Additional Amounts on presenting such Preferred Trust Security for payment on
the last day of such period of 30 days;
(C) to, or to a Person on behalf of, a Holder who
presents a Preferred Trust Security (when presentation is required) other than
in The City of New York; or
(D) to, or to a Person on behalf of, a Holder who
would not be liable or subject to Gross-Up Taxes by making a declaration of
non-residence or similar claim for exemption to the relevant tax authority.
Such Additional Amounts will also not be payable where, had the beneficial owner
of the Preferred Trust Security (or any interest therein) been the Holder of the
Preferred Trust Security , it would not have been entitled to payment of
Additional Amounts by reason of any one or more of clauses (A) through (D)
above. If the Guarantor shall determine that Additional Amounts will not be
payable because of the immediately preceding sentence, the Guarantor will inform
such Holder promptly after making such determination setting forth the reason(s)
thereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION; COVENANTS
SECTION 6.01 LIMITATION OF TRANSACTIONS. So long as any
Preferred Trust Securities remain outstanding, if
(A) for any quarterly period, the Issuer does not pay to the holders
of the outstanding Preferred Trust Securities an amount equal to the
Distributions in respect of Preferred Entitlements on any Preferred
Partnership Securities;
(B) an Investment Event of Default with respect to any Affiliate
Investment Instruments has occurred and is continuing and the
Guarantor defaults on its obligations under the related Investment
Guarantee; or
(C) the Guarantor is in continuing default of its obligations under
this Preferred Trust Securities Guarantee or the Partnership
Guarantee,
then, during such period neither the Guarantor nor any Investment Affiliate that
has issued Affiliate Investment Instruments shall, directly or indirectly,
14
(i) declare or pay any cash dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any
of its issued share capital or comparable equity interest other than
dividends or distributions paid to the Guarantor or any of the
Guarantor's subsidiaries;
(ii) make any payments on, or repay, repurchase or redeem, any of its
debt securities that rank equally with or junior to any Affiliate
Investment Instruments or any Investment Guarantee;
(iii) make any payments with respect to any guarantee that ranks
equally or junior to any of the Affiliate Investment Instruments or
any Investment Guarantee;
(iv) make any payments on, or repay, repurchase or redeem, any debt or
other securities held or issued by, or make any payments with respect
to any guarantee of such debt or other securities, or make any loans
or advances to, any Affiliate of the Guarantor that is not also a
subsidiary of the Guarantor; or
(v) permit their respective subsidiaries to make any payments on, or
repay, repurchase or redeem, any debt or other securities held or
issued by, or make any payments with respect to any guarantee of such
debt or other securities, or make any loans or advances to, any
Affiliate of the Guarantor that is not also a subsidiary of the
Guarantor,
in each case other than:
(a) any payments required by law;
(b) dividends or distributions in, or options, warrants or rights to
subscribe for or purchase, shares or comparable equity interests of
the Guarantor or of such Investment Affiliate, and exchanges or
conversions of shares or comparable equity interests of one class for
shares or comparable equity interests of another class of the same
issuer;
(c) payments by the Guarantor under this Preferred Trust Securities
Guarantee or the Partnership Guarantee;
(d) payments by such Investment Affiliate on its Affiliate Investment
Instruments or payments by the Guarantor under the Investment
Guarantee related to such Affiliate Investment Instruments;
(e) any dividend or payment by the Guarantor which is applied,
directly or indirectly, to any Tax Payments; or
(f) payments by the Guarantor or such Investment Affiliate, directly
or indirectly, on loans from Funding (or any subsidiary of the
Guarantor) to the Guarantor or any of the Guarantor's subsidiaries
made with the proceeds from the issuance by Funding (or such other
subsidiary making such loan) of securities guaranteed by the Guarantor
(provided that such guarantee ranks senior to all subordinated
indebtedness of the Guarantor, including the Investment Guarantees),
or loans made in connection with the reinvestment of those proceeds.
In connection with the obligations set forth in this Section 6.01, the Guarantor
agrees to cause each Investment Affiliate that has issued Affiliate Investment
Instruments to execute and deliver to the Trust Guarantee Trustee an instrument
in substantially the form of Exhibit A hereto.
15
SECTION 6.02 SUBORDINATION. This Preferred Trust Securities
Guarantee will constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all other liabilities of the
Guarantor, including the Investment Guarantees, except those that are made to
rank equally or subordinate by their terms to this Preferred Trust Securities
Guarantee, (ii) equally with any preference share capital now or hereafter
issued by the Guarantor and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred security of any Finance Subsidiary,
and (iii) senior to all common stock of the Guarantor. Nothing in this Section
6.02 shall apply to claims of, or payments to, the Trust Guarantee Trustee under
or pursuant to Section 4.02 hereof.
SECTION 6.03 COVENANTS. For so long as the Preferred Trust
Securities remain outstanding, the Guarantor covenants (a) to cause a direct or
indirect wholly-owned United States subsidiary of the Guarantor to retain the
Control Certificate, (b) to cause the Trust to remain a statutory business trust
and not to voluntarily dissolve, wind-up, liquidate or be terminated, except as
permitted by the Trust Agreement and (c) to use its commercially reasonable
efforts to ensure that the Trust will not be (i) an Investment Company for
purposes of the 1940 Act or (ii) classified as other than a grantor trust for
United States federal income tax purposes or as other than a transparent entity
for United Kingdom taxation purposes.
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION. Subject to Section 4.02 hereof, this
Preferred Trust Securities Guarantee shall terminate and be of no further force
and effect upon: (i) full payment of the Redemption Price of all Preferred Trust
Securities, (ii) the distribution of Preferred Partnership Securities to Holders
in exchange for all of the Preferred Trust Securities, or (iii) full payment of
the amounts payable in accordance with the Trust Agreement upon liquidation of
the Issuer. Notwithstanding the foregoing, this Preferred Trust Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Preferred Trust Securities or under this Preferred Trust Securities
Guarantee.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Preferred Partnership Securities Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred Trust
Securities then outstanding.
SECTION 8.02 AMENDMENTS. This Preferred Trust Securities
Guarantee may be amended only by an instrument in writing entered into by the
Guarantor and the Trust Guarantee Trustee. Except with respect to any changes
which do not materially adversely affect the rights, preferences or privileges
of Holders (in which case no consent of Holders will be required), this
Preferred Trust Securities Guarantee may only be amended with the prior approval
16
of the Holders of at least a Majority in Liquidation Amount of all the
outstanding Preferred Trust Securities. The provisions of Section 13.02 of the
Trust Agreement concerning meetings of Holders shall apply to the giving of such
approval. Nothing herein contained shall be deemed to require that the Trust
Guarantee Trustee enter into any amendment of this Preferred Trust Securities
Guarantee. Except as permitted by Section 8.03, the Guarantor may not assign its
rights or delegate its obligations under this Preferred Trust Securities
Guarantee without the prior approval of the Holders of a Majority in Liquidation
Amount of the Preferred Trust Securities.
SECTION 8.03 CONSOLIDATIONS AND MERGERS. The Guarantor may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation or other entity;
provided, that in any such case, (i) either the Guarantor shall be the
continuing entity, or the successor entity shall be a corporation or other
entity organized and existing under the laws of England and Wales, or any state
of the United States of America, and such successor entity shall expressly
assume the due and punctual payment of the Guarantee Payments payable pursuant
to Section 5.01 hereof and the due and punctual performance and observance of
all of the covenants and conditions of this Preferred Trust Securities Guarantee
to be performed by the Guarantor by a separate guarantee satisfactory to the
Trust Guarantee Trustee, executed and delivered to the Trust Guarantee Trustee
by such entity, and (ii) the guarantor or such successor entity, as the case may
be, shall not, immediately after such merger or consolidation, or such sale,
lease or conveyance, be in default in the performance of any such covenant or
condition.
SECTION 8.04 NOTICES. Any notice, request or other
communication required or permitted to be given hereunder shall be in writing,
duly signed by the party giving such notice, and delivered, telecopied or mailed
by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or
such other address as the Guarantor may give notice of to the Trust Guarantee
Trustee and the Holders of the Preferred Trust Securities:
TXU Europe Limited
The Adelphi
1-11 John Adam Street
London, England WC2N 6HT
Facsimile No: 44-171-879-8082
Attention: Treasurer
(b) if given to the Issuer, in care of the Administrative
Trustees, at the Issuer's (and the Administrative Trustees') address set forth
below or such other address as the Administrative Trustees on behalf of the
Issuer may give notice of to the Guarantee Trustee and the Holders:
TXU Europe Capital I
c/o TXU Europe Limited
The Adelphi
1-11 John Adam Street
London, England WC2N 6HT
Facsimile No: 44-171-879-8082
Attention: Administrative Trustees
17
(c) if given to the Trust Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may give notice of to
the Guarantor and the Holders of the Preferred Trust Securities:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.05 BENEFIT. This Preferred Trust Securities Guarantee
is solely for the benefit of the Holders and, subject to Section 3.01(a), is not
separately transferable from the Preferred Trust Securities.
SECTION 8.06 INTERPRETATION. In this Preferred Trust Securities
Guarantee, unless the context otherwise requires:
(a) a term defined anywhere in this Preferred Trust Securities
Guarantee has the same meaning throughout;
(b) all references to "the Preferred Trust Securities Guarantee"
or "this Preferred Trust Securities Guarantee" are to this Preferred Trust
Securities Guarantee as modified, supplemented or amended from time to time;
(c) all references in this Preferred Trust Securities Guarantee
to Articles and Sections are to Articles and Sections of this Preferred Trust
Securities Guarantee unless otherwise specified;
(d) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Trust Securities Guarantee unless otherwise
defined in this Preferred Trust Securities Guarantee or unless the context
otherwise requires;
(e) a reference to the singular includes the plural and vice
versa; and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
18
SECTION 8.07 GOVERNING LAW. THIS PREFERRED TRUST SECURITIES
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.08 CONSENT TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE; JUDGMENT CURRENCY; WAIVER OF IMMUNITIES.
(a) Consent to Jurisdiction. The Guarantor irrevocably consents
-----------------------
to the nonexclusive jurisdiction of any court of the State of New York or any
United States Federal court sitting, in each case, in the Borough of Manhattan,
The City of New York, New York, United States of America, and any appellate
court from any thereof in any suit, action or proceeding that may be brought in
connection with this Preferred Trust Securities Guarantee, and waives any
immunity from the jurisdiction of such courts. The Guarantor irrevocably waives,
to the fullest extent permitted by law, any objection to any such suit, action
or proceeding that may be brought in such courts whether on the grounds of
venue, residence or domicile or on the ground that any such suit, action or
proceeding has been brought in an inconvenient forum. The Guarantor agrees, to
the fullest extent that it lawfully may do so, that final judgment in any such
suit, action or proceeding brought in such a court shall be conclusive and
binding upon the Guarantor, and waives, to the fullest extent permitted by law,
any objection to the enforcement by any competent court in the Jurisdiction of
Incorporation of judgments validly obtained in any such court in New York on the
basis of such suit, action or proceeding; provided, however, that the Guarantor
does not waive, and the foregoing provisions of this sentence shall not
constitute or be deemed to constitute a waiver of, (i) any right to appeal any
such judgment, to seek any stay or otherwise to seek reconsideration or review
of any such judgment, (ii) any stay of execution or levy pending an appeal from,
or a suit, action or proceeding for reconsideration of, any such judgment, or
(iii) any other right or remedy of the Guarantor to the extent not expressly
waived in accordance with this Section.
(b) Appointment of Agent for Service. The Guarantor hereby
--------------------------------
designates and appoints Thelen Reid & Priest LLP, 40 West 57th Street, New York,
New York 10019, as its authorized agent upon which process may be served in any
suit or proceeding in any Federal or State court in the Borough of Manhattan,
The City of New York arising out of or relating to this Preferred Trust
Securities Guarantee, but for that purpose only, and agrees that service of
process upon said agent shall be deemed in every respect effective service of
process upon it in any such suit or proceeding in any Federal or State court in
the Borough of Manhattan, The City of New York. Such appointment shall be
irrevocable so long as any of the Preferred Trust Securities remain Outstanding
until the appointment of a successor by the Guarantor and such successor's
acceptance of such appointment. Upon such acceptance, the Guarantor shall notify
the Trust Guarantee Trustee of the name and address of such successor. The
Guarantor further agree to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of said agent in full force and effect
so long as any of the Preferred Trust Securities shall be Outstanding. The Trust
Guarantee Trustee shall not be obligated and shall have no responsibility with
respect to any failure by the Guarantor to take any such action.
Nothing in this Section shall affect the right of the Trust Guarantee
Trustee or any Holder of any Preferred Trust Security to serve process in
any manner permitted by applicable law or limit the right of the Trust
19
Guarantee Trustee or any Holder of any Preferred Trust Security to bring
proceedings against the Guarantor in the courts of any other jurisdiction
or jurisdictions.
(c) Judgment Currency. The Guarantor agrees, to the fullest
-----------------
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Preferred Trust Securities from the Required Currency into
a currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which, in accordance with normal
banking procedures, the Trust Guarantee Trustee could purchase the Required
Currency with the Judgment Currency and (b) its obligations under this Preferred
Trust Securities Guarantee to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering the amount, if any by which actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any other sum due
under this Preferred Trust Securities Guarantee.
(d) Waiver of Immunities. To the extent that the Guarantor or
--------------------
any of its respective properties, assets or revenues may have or may hereafter
become entitled to, or have attributed to it, any right of immunity, on the
grounds of sovereignty or otherwise, from legal action, suit or proceeding, from
the giving of any relief in any thereof, from set-off or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Preferred Trust Securities Guarantee, the Guarantor hereby irrevocably and
unconditionally waives and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement. Nothing in this paragraph shall be
deemed to waive any defense (other than such immunity) available to the
Guarantor.
(e) For purposes of this Section, the term "Required Currency"
means US Dollars.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
20
THIS PREFERRED TRUST SECURITIES GUARANTEE is executed as of the
day and year first above written.
TXU Europe Limited
By: /s/ Kirk R. Oliver
-------------------------------------
Name: Kirk R. Oliver
Title: Authorized Attorney
The Bank of New York,
as Trust Guarantee Trustee
By: /s/ Walter N. Gitlin
-------------------------------------
Name: Walter N. Gitlin
Title: Vice President
21
EXHIBIT A
For good and valuable consideration, receipt of which is hereby acknowledged,
[Name of Investment Affiliate] hereby agrees to Section 6.01 of the Preferred
Trust Securities Guarantee Agreement between TXU Europe Limited (as Guarantor)
and The Bank of New York (as Trustee) dated as of March 2, 2000 so long as its
Affiliate Investment Instruments issued to the Partnership are outstanding.
Dated:
[Name of Investment Affiliate]
By:
-------------------------------------
Name:
Title:
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