EXHIBIT 4(C)
PREFERRED TRUST SECURITIES GUARANTEE
Between
TXU Europe Limited
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
____________, 2000
TABLE OF CONTENTS
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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.....................................................11
SECTION 5.01 GUARANTEE................................................11
SECTION 5.02 WAIVER OF NOTICE AND DEMAND..............................11
SECTION 5.03 OBLIGATIONS NOT AFFECTED.................................12
SECTION 5.04 RIGHTS OF HOLDERS........................................12
SECTION 5.05 GUARANTEE OF PAYMENT.....................................13
SECTION 5.06 SUBROGATION..............................................13
SECTION 5.07 INDEPENDENT OBLIGATIONS..................................13
SECTION 5.08 ADDITIONAL AMOUNTS.......................................13
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.....................14
SECTION 6.01 LIMITATION OF TRANSACTIONS...............................14
SECTION 6.02 SUBORDINATION............................................15
ARTICLE VII TERMINATION...................................................16
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ARTICLE VIII MISCELLANEOUS.................................................16
SECTION 8.01 SUCCESSORS AND ASSIGNS...................................16
SECTION 8.02 AMENDMENTS...............................................16
SECTION 8.03 CONSOLIDATIONS AND MERGERS...............................17
SECTION 8.04 NOTICES..................................................17
SECTION 8.05 BENEFIT..................................................18
SECTION 8.06 INTERPRETATION...........................................18
SECTION 8.07 GOVERNING LAW............................................18
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CROSS-REFERENCE TABLE*
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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)
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* 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 (the "Preferred
Trust Securities Guarantee"), dated as of ____________, 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 _____________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 $_____________ aggregate Liquidation
Amount of its __% Trust Originated Preferred Securities (the "Preferred Trust
Securities") 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.
"Distribution" shall have the meaning set forth in the Partnership
Agreement.
"Distribution Payment Date" 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 the 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.
"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 to compliance
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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 successor
permitted by the Partnership Agreement.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of _________ __, 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.
"Subsidiary Debenture" means any Affiliate Investment Instrument
beneficially owned by 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 Guarantor or its subsidiaries
operate, and arising from the operations of Guarantor, Funding, the Partnership,
the Trust or any other subsidiary of Guarantor.
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"Trust Agreement" shall have the meaning set forth on the first page
hereof.
"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.
"Trust Securities" means the Common Trust Securities together with the
Preferred Trust Securities.
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 ________ and ______ 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 in 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
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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
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 Preferred
Partnership Securities Guarantee, and the Indenture (For Subordinated Unsecured
Debt Securities) dated as of ______, 2000 of TXU Eastern Funding Company and TXU
Europe Limited 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.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUST GUARANTEE TRUSTEE
SECTION 3.01 POWERS AND DUTIES OF THE TRUST GUARANTEE TRUSTEE.
(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
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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
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 liability is not reasonably assured to it under the terms of
this Preferred Trust Securities Guarantee or adequate indemnity, reasonably
satisfactory to the Trust Guarantee Trustee, 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;
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(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
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); and
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(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
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
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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).
(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.
The provisions of this Section shall survive the termination of this
Preferred Trust Securities Guarantee Agreement.
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SECTION 4.03 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUST GUARANTEE
TRUSTEE.
(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
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Issuer or any other Person before proceeding against the Guarantor, protest,
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 in respect of Preferred Entitlements, 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
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remedy available to the Trust Guarantee Trustee in respect of this Preferred
Trust Securities Guarantee or exercising any trust or power conferred upon the
Trust Guarantee Trustee under this Preferred Trust Securities Guarantee; and
(iv) if the Trust Guarantee Trustee fails to enforce 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 net 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:
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(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 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) if an amount of Distributions in respect of Preferred Entitlements
equal to the Preferred Entitlements accumulated to the immediately
preceding Distribution Payment Date has not been paid to, or duly
provided for, the holders of the outstanding Preferred Partnership
Securities or if such amount has not been paid to, or duly provided
for, the Holders of the outstanding Preferred Trust Securities;
(B) an Investment Event of Default with respect to any Subsidiary
Debentures has occurred and is continuing and Guarantor defaults on its
obligations under the related guarantee of Subsidiary Debentures, or
(C) the Guarantor is in continuing default of its obligations under the
Preferred Trust Securities Guarantee or the Partnership Guarantee,
then, during such period neither Guarantor nor any issuer of Subsidiary
Debentures shall, directly or indirectly,
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(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 Guarantor or any of 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 Subsidiary
Debentures or any guarantee thereof;
(iii) make any payments with respect to any guarantee that ranks
equally or junior to any of the Subsidiary Debentures or any guarantee
thereof;
(iv) make any payments on, or repay, repurchase or redeem, any debt or
other securities held or issued by, make payments with respect to any
guarantee of any debt or other securities of, or make any loans or
advances to, any Affiliate of Guarantor that is not also a subsidiary
of Guarantor; or
(v) cause their subsidiaries to make any payments on, or repay,
repurchase or redeem, any debt or other securities held or issued by,
make payments with respect to any guarantee of any debt or other
securities of, or make any loans or advances to, any Affiliate of
Guarantor that is not also a subsidiary of Guarantor.
These restrictions will not apply, however, to any of the following
transactions:
(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
Guarantor or of any issuer of Subsidiary Debentures, 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 Guarantor under the Preferred Trust Securities
Guarantee or the Preferred Partnership Securities Guarantee;
(d) payments by any issuer of Subsidiary Debentures on those Subsidiary
Debentures or payments by Guarantor under any guarantee of Subsidiary
Debentures;
(e) any dividend or payment by Guarantor which is applied, directly or
indirectly, to any Tax Payments; or
(f) payments by Guarantor or any issuer of Subsidiary Debentures,
directly or indirectly, on loans from Funding (or any subsidiary of
Guarantor) to Guarantor or any of Guarantor's subsidiaries made with
the proceeds from the issuance by Funding (or such other subsidiary
making such loan) of securities guaranteed by Guarantor (provided that
such guarantee ranks senior to all subordinated indebtedness of
Guarantor, including Guarantor's guarantees of Subsidiary Debentures),
or loans made in connection with the reinvestment of those proceeds.
Guarantor shall cause any issuer of Subsidiary Debentures to execute and deliver
to the Trust Guarantee Trustee an instrument in substantially the form of
Exhibit A hereto.
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
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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.
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 trust 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 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
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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
0-00 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Facsimile No: 00-000-000-0000
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
0-00 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Facsimile No: 00-000-000-0000
Attention: Administrative Trustees
(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:
-00-
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Corporate Trust Trustee
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.
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.
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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.
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THIS PREFERRED TRUST SECURITIES GUARANTEE is executed as of the day
and year first above written.
TXU Europe Limited
By:
--------------------------------
Name:
Title:
The Bank of New York,
as Trust Guarantee Trustee
By:
--------------------------------
Name:
Title:
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EXHIBIT A
For good and valuable consideration, receipt of which is hereby acknowledged,
[Subsidiary] hereby agrees to be bound by the terms of Section 6.01 of the
Preferred Trust Securities Guarantee between TXU Europe Limited (as Guarantor)
and The Bank of New York (as Trustee) dated as of _________, 2000 so long as TXU
Eastern Funding I, L.P. is the beneficial owner of any of its securities.
Dated:
[Subsidiary]
By:
--------------------------------
Name:
Title:
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