Exhibit 4.11
FORM OF GUARANTEE AGREEMENT
BETWEEN
AMEREN CORPORATION
AS GUARANTOR,
AND
----------------------------
AS GUARANTEE TRUSTEE,
DATED AS OF __________________
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS...........................................................................................1
SECTION 101. DEFINITIONS...................................................................................1
ARTICLE II. TRUST INDENTURE ACT..................................................................................5
SECTION 201. TRUST INDENTURE ACT; APPLICATION..............................................................5
SECTION 202. LIST OF HOLDERS...............................................................................5
SECTION 203. REPORTS BY THE GUARANTEE TRUSTEE..............................................................5
SECTION 204. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE.....................................................5
SECTION 205. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT..............................................6
SECTION 206. EVENTS OF DEFAULT; WAIVER.....................................................................6
SECTION 207. EVENT OF DEFAULT; NOTICE......................................................................6
SECTION 208. CONFLICTING INTERESTS.........................................................................6
ARTICLE III. RIGHTS AND OBLIGATIONS OF THE GUARANTEE TRUSTEE.....................................................6
SECTION 301. CERTAIN DUTIES AND RESPONSIBILITIES...........................................................6
SECTION 302. CERTAIN RIGHTS OF GUARANTEE TRUSTEE...........................................................8
SECTION 303. COMPENSATION; INDEMNITY.......................................................................9
ARTICLE IV. GUARANTEE TRUSTEE...................................................................................10
SECTION 401. ELIGIBILITY..................................................................................10
SECTION 402. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE TRUSTEE................................11
SECTION 403. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR GUARANTEE TRUSTEE.....................................12
ARTICLE V. GUARANTEE.............................................................................................13
SECTION 501. GUARANTEE....................................................................................13
SECTION 502. WAIVER OF NOTICE AND DEMAND..................................................................13
SECTION 503. OBLIGATIONS NOT AFFECTED.....................................................................13
SECTION 504. RIGHTS OF HOLDERS............................................................................14
SECTION 505. GUARANTEE OF PAYMENT.........................................................................15
SECTION 506. SUBROGATION..................................................................................15
SECTION 507. INDEPENDENT OBLIGATIONS......................................................................15
ARTICLE VI. COVENANTS [AND SUBORDINATION].......................................................................15
[SECTION 601. SUBORDINATION...............................................................................15]
SECTION 602. PARI PASSU GUARANTEES........................................................................15
SECTION 603. CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE..........................................16
ARTICLE VII. TERMINATION........................................................................................16
SECTION 701. TERMINATION..................................................................................16
ARTICLE VIII. MISCELLANEOUS.....................................................................................16
SECTION 801. SUCCESSORS AND ASSIGNS.......................................................................16
SECTION 802. AMENDMENTS...................................................................................17
SECTION 803. NOTICES......................................................................................17
SECTION 804. BENEFIT......................................................................................18
SECTION 805. INTERPRETATION...............................................................................18
SECTION 806. GOVERNING LAW................................................................................19
SECTION 807. COUNTERPARTS.................................................................................19
(i)
AMEREN CAPITAL TRUST __
CERTAIN SECTIONS OF THIS
GUARANTEE AGREEMENT RELATING TO
SECTIONS 310 THROUGH 318 OF THE
TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE GUARANTEE AGREEMENT
ACT SECTION SECTION
--------------- -------------------
Section 310 (a)(1)..................................................................401(a)
(a)(2)..................................................................401(a)
(a)(3)..................................................................Not Applicable
(a)(4)..................................................................Not Applicable
(b).....................................................................208, 401(c)
Section 311 (a).....................................................................Not Applicable
(b).....................................................................Not Applicable
Section 312 (a).....................................................................202(a)
(b).....................................................................202(b)
(c).....................................................................Not Applicable
Section 313 (a).....................................................................203
(a)(4)..................................................................203
(b).....................................................................203
(c).....................................................................203
(d).....................................................................203
Section 314 (a).....................................................................204
(b).....................................................................204
(c)(1)..................................................................205
(c)(2)..................................................................205
(c)(3)..................................................................205
(e).....................................................................101, 205
Section 315 (a).....................................................................301(d), 302
(b).....................................................................207
(c).....................................................................301(c)
(d).....................................................................301(d)
(e).....................................................................Not Applicable
Section 316 (a).....................................................................101, 206, 504
(a)(1)(A)...............................................................504
(a)(1)(B)...............................................................504
(a)(2)..................................................................Not Applicable
(b).....................................................................503
(c).....................................................................Not Applicable
Section 317 (a)(1)..................................................................Not Applicable
(a)(2)..................................................................Not Applicable
(b).....................................................................Not Applicable
Section 318 (a).....................................................................201
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the
Guarantee Agreement.
(ii)
GUARANTEE AGREEMENT
This
GUARANTEE AGREEMENT, dated as of _____________, 20__ is executed and
delivered by
Ameren Corporation, a Missouri corporation (the "Guarantor") having
its principal office at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and
________________, a
New York banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Trust Preferred Securities (as defined herein) of Ameren Capital Trust
__, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of _____________, 20__ among
Ameren Corporation, as
Depositor, ______________, as Property Trustee (the "Property Trustee"),
__________________, as Delaware Trustee (the "Delaware Trustee") (collectively,
the "Trustees"), the Administrators named therein and the Holders from time to
time of preferred undivided beneficial ownership interests in the assets of the
Trust, the Trust is issuing up to $____________ aggregate Liquidation Amount (as
defined herein) of its ______% Trust Preferred Securities, Liquidation Amount $
_____ per Trust Preferred Security (the "Trust Preferred Securities"),
representing preferred undivided beneficial ownership interests in the assets of
the Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Preferred Securities will be issued by the Trust and
the proceeds thereof, together with the proceeds from the issuance by the Trust
of the Trust Common Securities (as defined herein), will be used to purchase the
_______% [Subordinated] Deferrable Interest Debentures Series __ due
_____________ (the "[Subordinated] Debentures") of the Guarantor which will be
deposited with the Property Trustee under the Trust Agreement, as trust assets;
and
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Trust Preferred
Securities 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 of the Trust Preferred
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, and intending to be legally bound hereby, the
Guarantor executes and delivers this
Guarantee Agreement for the benefit of the
Holders from time to time of the Trust Preferred Securities.
ARTICLE I. DEFINITIONS
SECTION 101. DEFINITIONS.
As used in this
Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement as in effect on the date hereof.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"DISTRIBUTIONS" means preferential cumulative cash distributions
accumulating from ________, 20__ and payable quarterly in arrears on _________,
________, ________ and _________ of each year, commencing ________, 20__, at an
annual rate of ____% of the Liquidation Amount.
"EVENT OF DEFAULT" means (i) a default by the Guarantor in any of
its payment obligations under this
Guarantee Agreement, or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"
GUARANTEE AGREEMENT" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by or on behalf of the Trust: (i) any accumulated and
unpaid Distributions (as defined in the Trust Agreement) required to be paid on
the Trust Preferred Securities, to the extent the Trust shall have funds on hand
available therefor at such time, (ii) the Redemption Price, with respect to the
Trust Preferred Securities called for redemption by the Trust to the extent that
the Trust shall have funds on hand available therefor at such time, and (iii)
upon a voluntary or involuntary termination, winding-up or liquidation of the
Trust, unless the [Subordinated] Debentures are distributed to the Holders, the
lesser of (a) the aggregate of the Liquidation Amount and all accumulated and
unpaid Distributions to the date of payment to the extent the Trust shall have
funds on hand available to make such payment at such time and (b) the amount of
assets of the Trust remaining available for distribution to Holders on
liquidation of the Trust (in either case, the "Liquidation Distribution").
"GUARANTEE TRUSTEE" means ____________________, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"GUARANTOR" shall have the meaning specified in the first paragraph
of this Guarantee Agreement.
"HOLDER" means any holder, as registered on the books and records of
the Trust, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
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"INDENTURE" means the Indenture (For Subordinated Debt Securities)
dated as of ______________, 20__ between
Ameren Corporation and ______________,
as trustee, as may be modified, amended or supplemented from time to time.
"LIKE AMOUNT" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of [Subordinated] Debentures to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Trust Common
Securities and to the Trust Preferred Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
[Subordinated] Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Trust, [Subordinated] Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such [Subordinated] Debentures are distributed.
"LIQUIDATION AMOUNT" means the stated amount of $_____ per Trust
Preferred Security.
"MAJORITY IN LIQUIDATION AMOUNT OF THE TRUST PREFERRED SECURITIES"
means, except as provided by the Trust Indenture Act, Trust Preferred Securities
representing more than 50% of the aggregate Liquidation Amount of all then
outstanding Trust Preferred Securities issued by the Trust.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman
of the Board, President, any Vice President, the Treasurer or any other duly
authorized officer of the Guarantor, and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee Agreement (other than pursuant to
Section 204) shall include:
(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as 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 each such Person,
such condition or covenant has been complied with.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
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"REDEMPTION DATE" means, with respect to any Trust Preferred
Security to be redeemed, the date fixed for such redemption by or pursuant to
the Trust Agreement; provided that each [Subordinated] Debenture Redemption Date
and the stated maturity of the [Subordinated] Debentures shall be a Redemption
Date for a Like Amount of Trust Preferred Securities.
"REDEMPTION PRICE" shall have the meaning specified in the Trust
Agreement.
"RESPONSIBLE OFFICER" means, when used with respect to the Guarantee
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary, Senior Trust Officer, Trust Officer or any other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Guarantee Agreement, and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"SENIOR INDEBTEDNESS" shall have the meaning specified in the
Indenture.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 401.
"TRUST" shall have the meaning specified in the first paragraph of
this Guarantee Agreement.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement,
dated ___________, 20__ entered among
Ameren Corporation, as Depositor,
_________________, as Delaware Trustee, ____________________, as Property
Trustee, and the Administrators named therein.
"TRUST COMMON SECURITIES" means the securities representing common
undivided beneficial interests in the assets of the Trust.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
force and effect as of the date of execution of this Guarantee Agreement;
provided, however, that in the event the Trust Indenture Act of 1939 is
succeeded by another statute or is amended after such date, "Trust Indenture
Act" shall mean such successor statute or the Trust Indenture Act of 1939, as so
amended, to the extent such successor statute or amendment is applicable to this
Guarantee Agreement or to the actions of the Guarantor or the Property Trustee
under or pursuant to this Guarantee Agreement.
"TRUST PREFERRED SECURITIES" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"TRUST SECURITIES" means the Trust Common Securities and the Trust
Preferred Securities.
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ARTICLE II. TRUST INDENTURE ACT
SECTION 201. TRUST INDENTURE ACT; APPLICATION.
This Guarantee Agreement is intended to be in conformity with the
provisions of the Trust Indenture Act that would be required to be part of this
Guarantee Agreement were this Guarantee Agreement to be qualified under the
Trust Indenture Act and shall, to the extent applicable, and unless otherwise
provided herein, be governed by such provisions. If and to the extent that any
provision of this Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control. If any provision of this Guarantee Agreement
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Guarantee Agreement as so modified or excluded, as the case may be.
SECTION 202. LIST OF HOLDERS.
(a) The Guarantor will furnish or cause to be furnished to the
Guarantee Trustee a list of Holders at the following times:
(i) semiannually, not more than 15 days after _________ and
____________ in each year, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the
Holders as of such ________ or _________, as applicable; and
(ii) at such other times as the Guarantee Trustee may request
in writing, within 30 days after the receipt by the Guarantor of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished.
(b) The Guarantee Trustee shall comply with the requirements of
Section 312(b) of the Trust Indenture Act.
SECTION 203. REPORTS BY THE GUARANTEE TRUSTEE.
Not later than 60 days after ___________ of each year, commencing
___________, 20__, the Guarantee Trustee shall provide to the Holders such
reports, if any, as are required by Section 313(a) of the Trust Indenture Act in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Guarantee Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 204. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE.
The Guarantor shall provide to the Guarantee Trustee, and the
Holders such documents, reports and information, if any, as required by Section
314 of the Trust Indenture Act and the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act, in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
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SECTION 205. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 206. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities may, on behalf 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 Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
SECTION 207. EVENT OF DEFAULT; NOTICE.
The Guarantee Trustee shall give notice to the Holders of any
default hereunder of which it has knowledge (within the meaning of Section
302(h) hereof) in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default.
SECTION 208. CONFLICTING INTERESTS.
The Trust Agreement, relating to the Trust, and the Guarantee
Agreement shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III. RIGHTS AND OBLIGATIONS OF THE GUARANTEE TRUSTEE
SECTION 301. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Guarantee Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an indenture trustee
in the Trust Indenture Act, and no implied covenants or obligations shall
be read into this Guarantee Agreement against the Guarantee Trustee. For
purposes of Sections 315(a) and 315(c) of the Trust Indenture Act, the
term "default" is hereby defined as an Event of Default which has occurred
and is continuing.
(b) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except a Holder exercising
his or her rights pursuant to Section 504(iv) or to a Successor Guarantee
Trustee on acceptance by such Successor
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Guarantee Trustee of its appointment to act as Successor Guarantee Trustee
hereunder. The right, title and interest of the Guarantee Trustee, as
such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its
appointment hereunder, 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 Guarantee Trustee.
(c) The Guarantee Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default that may
have occurred, undertakes to perform such duties and only such duties as
are specifically set forth in this Guarantee Agreement. In case an Event
of Default of which a Responsible Officer of the Guarantee Trustee has
actual knowledge has occurred (which has not been cured or waived), the
Guarantee Trustee shall exercise such of the rights and powers vested in
it by this Guarantee Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except
that prior to the occurrence of an Event of Default and after the curing
or waiving of all Events of Default which may have occurred
(i) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically
set forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against the
Guarantee Trustee; and
(ii) in the absence of bad faith on the part of the Guarantee
Trustee, the 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 Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but, in the case of any such certificates or
opinions that by any provision hereof are specifically required to
be furnished to the Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee Agreement.
(e) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Guarantee Trustee, unless it shall be proven that the Guarantee Trustee
was negligent in ascertaining the pertinent facts.
(f) The 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 pursuant to Section 504(iii), relating
to the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee, under this Guarantee Agreement.
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(g) No provision of this Guarantee Agreement shall require the
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 it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity, satisfactory to the Guarantee Trustee in its reasonable
judgment, against such risk or liability is not reasonably assured to it.
(h) Notwithstanding anything contained in this Guarantee Agreement
to the contrary, the duties and responsibilities of the Guarantee Trustee
under this Guarantee Agreement shall be subject to the protections,
exculpations and limitations on liability afforded to the Guarantee
Trustee under the provisions of the Trust Indenture Act, including those
provisions of such Act deemed by such Act to be included herein.
(i) Whether or not therein expressly so provided, every provision of
this Guarantee Agreement relating to the conduct or affecting the
liability of or affording protection to the Guarantee Trustee shall be
subject to the provisions of this Section.
SECTION 302. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
Subject to the provisions of Section 301 and to the applicable
provisions of the Trust Indenture Act:
(a) the Guarantee Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Guarantor mentioned herein shall
be sufficiently evidenced by an Officer's Certificate, or as otherwise
expressly provided herein, and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officer's Certificate,
(d) the Guarantee Trustee may consult with counsel and the advice or
written opinion of such counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder pursuant to this Guarantee
Agreement, unless such Holder shall have offered
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to the Guarantee Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Guarantee Trustee shall
determine to make such further inquiry or investigation, it shall (subject
to applicable legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Guarantor,
personally or by agent or attorney;
(g) the 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 Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Guarantee Trustee shall not be charged with knowledge of any
default or Event of Default unless either (1) a Responsible Officer of the
Guarantee Trustee shall have actual knowledge of the default or Event of
Default or (2) written notice of such default or Event of Default (which
shall state that such notice is a "Notice of Default" or a "Notice of an
Event of Default" hereunder, as the case may be) shall have been given to
the Guarantee Trustee by the Guarantor, any other obligor on Trust
Preferred Securities or by any Holder of Trust Preferred Securities.
SECTION 303. COMPENSATION; INDEMNITY.
The Guarantor, shall
(a) pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by the Guarantee Trustee 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, reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Guarantee Trustee in
accordance with any provision of this Guarantee Agreement, including the
costs of collection (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except to the
extent that any such expense, disbursement or advance may be attributable
to its negligence, willful misconduct or bad faith; and
(c) indemnify and hold harmless the Guarantee Trustee from and
against any and all losses, demands, claims, liabilities, causes of action
or expenses (including reasonable attorney's fees and expenses) incurred
by it arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance of its
duties hereunder (including the reasonable costs and expenses of defending
itself against
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any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder), except to the extent any such
loss, demand, claim, liability, cause of action or expense may be
attributable to its negligence, willful misconduct or bad faith, and
assume the defense of Guarantee Trustee with counsel acceptable to the
Guarantee Trustee, unless the Guarantee Trustee shall have been advised by
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the Guarantor.
The provisions of this Section shall survive termination of this Guarantee
Agreement.
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 401. ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor;
(ii) be a corporation
(1) organized and doing business under the laws of the
United States, any State or Territory thereof or the District
of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at
least $100,000,000 and subject to supervision or examination
by Federal or State authority, or
(2) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $100,000,000 or the Dollar equivalent of the
applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article IV
and the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, 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 Guarantee Trustee shall cease to be eligible
to so act under Section 401(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 402.
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(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act, subject to the
penultimate paragraph thereof.
SECTION 402. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE
TRUSTEE.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the
Successor Guarantee Trustee by written instrument executed by the
Successor Guarantee Trustee and delivered to the Holders and the Guarantee
Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee
Trustee may resign at any time by giving written notice thereof to the
Guarantor and the Holders. If the instrument of acceptance by the
Successor Guarantee Trustee shall not have been delivered to the Guarantee
Trustee within 60 days after the giving of such notice of resignation, the
Guarantee Trustee may petition, at the expense of the Guarantor, any court
of competent jurisdiction for the appointment of a Successor Guarantee
Trustee.
(c) The Guarantee Trustee may be removed at any time by Act (within
the meaning of Section 608 of the Trust Agreement) of the Holders of at
least a Majority in Liquidation Amount of the Trust Preferred Securities,
delivered to the Guarantee Trustee.
(d) If at any time:
(i) the Guarantee Trustee shall fail to comply with Section
401(c) after written request therefor by the Guarantor or by any
Holder who has been a bona fide Holder for at least six months, or
(ii) the Guarantee Trustee shall cease to be eligible under
Section 401(a) and shall fail to resign after written request
therefor by the Guarantor or by any such Holder, or
(iii) the Guarantee Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Guarantee Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Guarantee Trustee
or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation
then, in any such case, the Guarantor may remove the Guarantee Trustee
(e) If the Guarantee Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Guarantee Trustee for any cause, the Guarantor, by a Board Resolution,
shall promptly appoint a Successor Guarantee Trustee and shall comply with
the applicable requirements of Section 403. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
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Successor Guarantee Trustee shall be appointed by Act of the Holders of
not less than a Majority in Liquidation Amount of the Trust Preferred
Securities delivered to the Guarantor and the retiring Guarantee Trustee,
the Successor Guarantee Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 403, become the Successor Guarantee Trustee and
supersede the Successor Guarantee Trustee appointed by the Guarantor. If
no Successor Guarantee Trustee shall have been so appointed by the
Guarantor or the Holders and accepted appointment in the manner required
by Section 403, any Holder who has been a bona fide Holder of a Trust
Preferred Security for at least six months may, on behalf of itself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a Successor Guarantee Trustee.
(f) So long as no event which is, or after notice or lapse of time,
or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Guarantee Trustee appointed by
Act of the Holders of a Majority in Liquidation Amount of the Outstanding
Trust Preferred Securities pursuant to subsection (e) of this Section, if
the Guarantor shall have delivered to the Guarantee Trustee (i) a Board
Resolution appointing a Successor Guarantee Trustee, effective as of a
date specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such Successor Guarantee
Trustee in accordance with Section 403, the Guarantee Trustee shall be
deemed to have resigned as contemplated in subsection (b) of this Section,
the Successor Guarantee Trustee shall be deemed to have been appointed by
the Guarantor pursuant to subsection (e) of this Section and such
appointment shall be deemed to have been accepted as contemplated in
Section 403, all as of such date, and all other provisions of this Section
and Section 403 shall be applicable to such resignation, appointment and
acceptance except to the extent inconsistent with this subsection (f).
(g) The Guarantor or, should the Guarantor fail so to act promptly,
the Successor Guarantee Trustee, at the expense of the Guarantor, shall
give notice of each resignation and each removal of the Guarantee Trustee
and each appointment of a Successor Guarantee Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to all Holders
as their names and addresses appear in the Securities Register. Each
notice shall include the name of the Successor Guarantee Trustee and the
address of its Corporate Trust Office.
SECTION 403. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR GUARANTEE TRUSTEE.
(a) Every Successor Guarantee Trustee appointed hereunder shall
execute, acknowledge and deliver to the Guarantor and to the retiring
Guarantee Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Guarantee Trustee shall become
effective and such Successor Guarantee Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Guarantee Trustee; but, on the request
of the Guarantor or the Successor Guarantee Trustee, such retiring
Guarantee Trustee shall, upon payment of all sums owed to it, execute and
deliver an instrument transferring to such Successor Guarantee Trustee all
the rights, powers and trusts of the retiring
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Guarantee Trustee and shall duly assign, transfer and deliver to such
Successor Guarantee Trustee all property and money held by such retiring
Guarantee Trustee hereunder.
(b) Upon request of any such Successor Guarantee Trustee, the
Guarantor shall execute any instruments which fully vest in and confirm to
such Successor Guarantee Trustee all such rights, powers and trusts
referred to in subsection (a) of this Section.
(c) No Successor Guarantee Trustee shall accept its appointment
unless at the time of such acceptance such Successor Guarantee Trustee
shall be qualified and eligible under this Article.
ARTICLE V. GUARANTEE
SECTION 501. 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 Trust), as and when due, regardless of
any defense, right of set-off or counterclaim which the Trust may have or
assert, except the defense of payment. 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 Trust to pay such amounts to the
Holders. The Guarantor shall give prompt written notice to the Guarantee Trustee
in the event it makes any direct payment hereunder.
SECTION 502. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Trust 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 503. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement 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 Trust of any express or implied
agreement, covenant, term or condition relating to the Trust Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment
period on the [Subordinated] Debentures as so
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provided in the Indenture), Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Trust Preferred Securities
or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Trust Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Trust
Preferred Securities, or any action on the part of the Trust 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 Trust
or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Trust
Preferred 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 (other
than payment of the underlying obligation), it being the intent of this
Section 503 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 504. RIGHTS OF HOLDERS.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee Agreement or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement, provided, however, that, subject to Section 301, the Guarantee
Trustee shall have the right to decline to follow any such direction if the
Guarantee Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Guarantee Trustee in good faith
shall, by a Responsible Officer or Officers of the Guarantee Trustee, determine
that the proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of the Holders not party to
such direction, and provided further that nothing in this Guarantee Agreement
shall impair the right of the Guarantee Trustee to take any action deemed proper
by the Guarantee Trustee and which is not inconsistent with such direction; and
(iv) any Holder may institute a legal proceeding directly against the Guarantor
to enforce its rights under this Guarantee
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Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Trust or any other Person.
SECTION 505. GUARANTEE OF PAYMENT.
This Guarantee Agreement 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 of amounts theretofore paid
by the Trust) or upon the distribution of [Subordinated] Debentures to Holders
as provided in the Trust Agreement.
SECTION 506. SUBROGATION.
The Guarantor shall be subrogated to all rights (if any) of the
Holders against the Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; 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 Guarantee Agreement, if at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. 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 507. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Trust Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 503 hereof.
ARTICLE VI. COVENANTS [AND SUBORDINATION]
[SECTION 601. SUBORDINATION.
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank subordinate and junior in right of payment to all
Senior Indebtedness of the Guarantor to the extent and in the manner set forth
in the Indenture with respect to the [Subordinated] Debentures, and the
provisions of Article XV of the Indenture will apply, MUTATIS MUTANDIS, to the
obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness of the Guarantor.]
SECTION 602. PARI PASSU GUARANTEES.
The obligations of the Guarantor under this Guarantee Agreement
shall rank PARI PASSU with any similar guarantee agreements issued by the
Guarantor on behalf of the holders of preferred or Trust Preferred Securities
issued by any other trust similar to the Trust and with any
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other security, guarantee or other obligation that is expressly stated to rank
PARI PASSU with the obligations of the Guarantor under this Guarantee Agreement.
SECTION 603. CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE.
(a) The Guarantor shall not consolidate with or merge into any
other corporation or sell or otherwise dispose of its properties as or
substantially as an entirety to any Person unless the Guarantor has delivered
to the Guarantee Trustee an Officers' Certificate and an opinion of counsel
each stating that such consolidation, merger, conveyance or transfer comply
with this Section 603 and the corporation formed by such consolidation or
into which the Guarantor is merged or the Person which receives such
properties pursuant to such sale, transfer or other disposition (a) shall be
a corporation organized and existing under the laws of the United States of
America, any state thereof or the District of Columbia; and (b) shall
expressly assume the due and punctual payment of the Guarantee Payments and
the performance of every covenant of this Guarantee Agreement on the part of
the Guarantor to be performed or observed.
(b) Upon any consolidation or merger, or any sale, transfer or
other disposition of the properties of the Guarantor substantially as an
entirety in accordance with paragraph (a) hereof, the successor corporation
formed by such consolidation or into which the Guarantor is merged or the
Person to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Guarantor under this Guarantee Agreement with the same effect as if such
successor corporation or Person had been named as the Guarantor herein and
the Guarantor shall be released from all obligations hereunder.
ARTICLE VII. TERMINATION
SECTION 701. TERMINATION.
This Guarantee Agreement shall terminate and be of no further force
and effect upon (i) full payment of the Redemption Price of all Trust Preferred
Securities, (ii) the distribution of [Subordinated] Debentures to the Holders in
exchange for all of the Trust Preferred Securities or (iii) full payment of the
amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to restore payment of any sums paid
under the Trust Preferred Securities or this Guarantee Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 801. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Trust
Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article XII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder, and any purported assignment that is not
in accordance with these provisions shall be void.
SECTION 802. AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of the
Trust Preferred Securities. The provisions of Article VI of the Trust Agreement
concerning meetings or consents of the Holders shall apply to the giving of such
approval.
SECTION 803. 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 with receipt confirmed, or mailed by first
class mail as follows:
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(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number or to the attention
of such other Person as the Guarantor may give notice to the Guarantee
Trustee and the Holders:
Ameren Corporation
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: ___________, _______________
(b) if given to the Trust, at the Trust's (and the Guarantee
Trustee's) address or telecopy number set forth below or such other
address or telecopy number or to the attention of such other Person as the
Trust or Guarantee Trustee may give notice to the Guarantee Trustee (if
given by the Trust) and the Holders:
Ameren Capital Trust ___
c/o
Ameren Corporation
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: ____________, Administrator
with a copy to:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
(c) if given to the Guarantee Trustee, to the address or
telecopy number set forth below or such other address or telecopy
number or to the attention of such other Person as the Guarantee
Trustee may give notice to the Guarantor and the Holders:
_______________________
_______________________
_______________________
Facsimile No.: _______
Attention: Corporate Trustee Administration
(d) if given to any Holder, at the address set forth on the books
and records of the Trust.
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
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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 804. BENEFIT.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Trust Preferred Securities.
SECTION 805. INTERPRETATION.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 101;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 806. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 807. COUNTERPARTS.
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 GUARANTEE AGREEMENT is executed as of the day and year first
above written.
AMEREN CORPORATION
as Guarantor
By:
---------------------------------
Name:
Title:
----------------------------,
as Guarantee Trustee, and not
in its individual capacity
By:
---------------------------------
Name:
Title:
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