Exhibit 4(d)
PREFERRED PARTNERSHIP SECURITIES GUARANTEE
Between
TXU Europe Limited
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS .................................................... 1
SECTION 1.01 Definitions ................................................ 1
ARTICLE II TRUST INDENTURE ACT ............................................ 4
SECTION 2.01 Trust Indenture Act; Application ........................... 4
SECTION 2.02 Lists of Holders of Preferred Partnership Securities ....... 4
SECTION 2.03 Reports by the Partnership Guarantee Trustee ............... 4
SECTION 2.04 Periodic Reports to Partnership 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 Partnership Guarantee Trustee ..... 6
SECTION 3.01 Powers and Duties of the Partnership Guarantee Trustee ..... 6
SECTION 3.02 Certain Rights of Partnership Guarantee Trustee ............ 7
SECTION 3.03 Not Responsible for Recitals or Issuance of Preferred
Partnership Securities Guarantee .........................10
ARTICLE IV Partnership Guarantee Trustee ..................................10
SECTION 4.01 Partnership Guarantee Trustee; Eligibility .................10
SECTION 4.02 Compensation and Reimbursement .............................10
SECTION 4.03 Appointment, Removal and Resignation of Partnership
Guarantee Trustee ........................................11
ARTICLE V GUARANTEE ......................................................12
SECTION 5.01 Guarantee ..................................................12
SECTION 5.02 Waiver of Notice and Demand.................................12
SECTION 5.03 Obligations Not Affected ...................................12
SECTION 5.04 Rights of Holders ..........................................13
SECTION 5.05 Guarantee of Payment .......................................14
SECTION 5.06 Subrogation ................................................14
SECTION 5.07 Independent Obligations ....................................14
SECTION 5.08 Additional Amounts .........................................14
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION ......................15
SECTION 6.01 Limitation of Transactions .................................15
SECTION 6.02 Subordination ..............................................16
ARTICLE VII TERMINATION ....................................................16
ARTICLE VIII MISCELLANEOUS ..................................................16
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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 ..............................................19
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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
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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
Partnership Securities Guarantee and shall not affect the interpretation of any
of its terms or provisions.
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PREFERRED PARTNERSHIP SECURITIES GUARANTEE AGREEMENT
This PREFERRED PARTNERSHIP SECURITIES GUARANTEE AGREEMENT ("Preferred
Partnership Securities Guarantee"), dated as of November _, 1999, 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 "Partnership Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Preferred Partnership Securities
(as defined herein) of TXU Europe Funding I, L.P. a Delaware limited partnership
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Agreement of Limited
Partnership (the "Partnership Agreement"), dated as of the date hereof, the
Issuer may issue a single series of limited partner interests in the Issuer (the
"Partnership Preferred Securities");
WHEREAS, pursuant to the Partnership Agreement, the proceeds received
by the Issuer from the issuance and sale of the Partnership Preferred Securities
will be invested by the Issuer in junior subordinated debentures of TXU Eastern
Funding Company and one or more eligible subsidiaries of the Guarantor and to a
limited extent, in other eligible debt securities; and
WHEREAS, the Guarantor, as incentive for the Holders (as defined
herein) to purchase Partnership Preferred Securities, desires hereby irrevocably
and unconditionally to agree, to the extent set forth herein, to pay to the
Holders the Guarantee Payments (as defined herein).
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Partnership Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Preferred
Partnership Securities Guarantee for the benefit of the Holders from time to
time.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Preferred Partnership
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 Partnership Agreement or 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.
"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.
"Corporate Trust Office" means the principal trust office of the
Partnership Guarantee Trustee in the Borough of Manhattan, The City of New York,
which office at the date hereof is located at _________________________________.
"Distributions" shall have the meaning set forth in Section 5.1 of the
Partnership Agreement.
"Event of Default" means a default by the Guarantor on any of its
payment obligations under this Preferred Partnership 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.
"Guarantee Payments" shall mean the following payments or
distribution, without duplication, with respect to the Partnership Preferred
Securities, to the extent not paid or made by the Partnership: (i) any
accumulated and unpaid Distributions that have theretofore been properly
declared by the General Partner on the Partnership Preferred Securities out of
funds legally available to the Partnership therefor, (ii) the redemption price
of the Partnership Preferred Securities, including all accumulated and unpaid
Distributions to the date of redemption ( the " Redemption Price"), payable out
of funds legally available to the Partnership therefor, with respect to any
Partnership Preferred Securities called for redemption by the Partnership, and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
the Partnership, the lesser of (a) the aggregate of the liquidation preference
and all accumulated and unpaid Distributions on the partnership Preferred
Securities to the date of payment and (b) the amount of assets of the
Partnership remaining available for distribution to Holders in liquidation of
the Partnership after satisfaction of all liabilities of the Partnership (in
either case, the " Liquidation Distribution").
"Holders" shall mean the holders, as registered on the books and
records of the Partnership, of the Partnership Preferred Securities; provided,
however, that in determining whether the holders of the requisite percentage of
Partnership Preferred Securities have given any request, notice, consent or
waiver hereunder, "Holders" shall not include the Guarantor or any entity owned
more than 50% by the Guarantor, either directly or indirectly.
"Investment Event of Default" has the meaning ascribed to it in the
Partnership Agreement.
"Majority in Liquidation Amount of the Preferred Partnership
Securities" means a vote by Holders, voting separately as a class, of more than
50% of the aggregate Liquidation Amount of all Preferred Partnership Securities.
"Officer's Certificate" means a certificate signed by any Director,
the President, any Vice President, the Treasurer, or any Assistant Treasurer of
the Guarantor, and delivered to the Partnership Guarantee Trustee. Any Officer's
Certificate or Opinion of Counsel delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement shall include:
(a) a statement that the director, officer or counsel 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 each director, officer or counsel in rendering the
Officer's Certificate or the Opinion of Counsel;
(c) a statement that each such director, officer or counsel has made
such examination or investigation as, in such director's, officer's or counsel's
opinion, is necessary to enable such director, officer or counsel 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 director,
officer or counsel, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Partnership Guarantee Trustee or the Guarantor or an Affiliate
of the Guarantor, or an employee or any thereof, who shall be acceptable to the
Guarantee Trustee.
"Partnership" means TXU Europe Funding I, L.P.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of _________ ______, _____,
amoung TXU Europe Limited, a private limited company incorporated under the
laws of England and Wales as general partner, as initial limited partner and
such other persons who became limited partners as provided therein.
"Partnership Guarantee Trustee" means The Bank of New York until a
Successor Partnership Guarantee Trustee (as defined below) has been appointed
and has accepted such appointment pursuant to the terms of this Preferred
Partnership Securities Guarantee and thereafter means each such Successor
Partnership Guarantee Trustee.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government, or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Corporate Trust Department
of the Partnership Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Senior Indebtedness" means any payment in respect of indebtedness of
the Guarantor for money borrowed, except for any such indebtedness that is by
its terms subordinated to or pari passu with Guarantor's guarantees of the debt
instruments purchased by the Partnership (the "Subsidiary Debentures"), as the
case may be.
"Successor Partnership Guarantee Trustee" means a successor
Partnership Guarantee Trustee possessing the qualifications to act as
Partnership Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Preferred Partnership Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Partnership Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required or deemed to be part of
this Preferred Partnership 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
Partnership Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED PARTNERSHIP SECURITIES.
(a) The Guarantor shall furnish or cause to be furnished to the
Partnership Guarantee Trustee (a) semiannually, not later than ________ and
_______ in each year, a list, in such form as the Partnership 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 Partnership 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 Partnership 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 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 PARTNERSHIP GUARANTEE TRUSTEE. Not later
than ________ in each year, commencing ________________, the Partnership
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(a) of the Trust Indenture Act. Any such report
shall be dated as of the next preceding _________ 15. The Guarantee Trustee
shall also comply with the requirements of Sections 313(b), (c) and (d) of the
Trust Indenture Act.
SECTION 2.04 PERIODIC REPORTS TO PARTNERSHIP GUARANTEE TRUSTEE. The
Guarantor shall provide to the Partnership Guarantee Trustee 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 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 Partnership Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this Preferred
Partnership 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 Partnership 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 Partnership 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 Partnership 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
Partnership Guarantee Trustee, unless such default shall have been cured or
waived before the giving of such notice, provided that the Partnership Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Partnership Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Partnership Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Partnership Guarantee Trustee
receives notice or a Responsible Officer of the Partnership Guarantee Trustee
charged with the administration of the Trust Agreement shall have obtained
actual knowledge of an Event of Default
SECTION 2.08 CONFLICTING INTERESTS. The Trust Agreement and the
Indenture (For Unsecured Debt Securities) dated as of May 1, 1999 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 Partnership
Securities Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PARTNERSHIP GUARANTEE TRUSTEE
SECTION 3.01 POWERS AND DUTIES OF THE PARTNERSHIP GUARANTEE TRUSTEE.
(a) This Preferred Partnership Securities Guarantee shall be held by
the Partnership Guarantee Trustee for the benefit of the Holders, and the
Partnership Guarantee Trustee shall not transfer this Preferred Partnership
Securities Guarantee or any rights hereunder to any Person except a Holder
exercising his or her rights pursuant to Section 5.04 or to a Successor
Partnership Guarantee Trustee on acceptance by such Successor Partnership
Guarantee Trustee of its appointment to act as Successor Partnership Guarantee
Trustee. The right, title and interest of the Partnership Guarantee Trustee
shall automatically vest in any Successor Partnership Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not convincing
documents have been executed and delivered pursuant to the appointment of such
Successor Partnership Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Partnership Guarantee Trustee has occurred and is continuing, and unless
enforcement action under the Partnership Guarantee has been undertaken and is
being pursued by the Special Representative, the Partnership Guarantee Trustee
shall enforce this Partnership Guarantee for the benefit of the Holders of the
Partnership Preferred Securities.
(c) The Partnership 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 Partnership Securities
Guarantee, and no implied covenants or obligations shall be read into this
Preferred Partnership Securities Guarantee against the Partnership 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 Partnership Guarantee Trustee, the Partnership Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred
Partnership 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.
(d) No provision of this Preferred Partnership Securities Guarantee
shall be construed to relieve the Partnership 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 Partnership Guarantee
Trustee shall be determined solely by the express provisions of this Preferred
Partnership Securities Guarantee, and the Partnership Guarantee Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Preferred Partnership Securities Guarantee, and
no implied covenants or obligations shall be read into this Preferred
Partnership Securities Guarantee against the Partnership Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Partnership Guarantee Trustee, the Partnership 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
Partnership Guarantee Trustee and conforming to the requirements of this
Preferred Partnership Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are specifically required
to be furnished to the Partnership Guarantee Trustee, the Partnership 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 Partnership Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Partnership Guarantee Trustee, unless it shall be proved that the Partnership
Guarantee Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Partnership 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 Partnership Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the Partnership
Guarantee Trustee, or exercising any trust or power conferred upon the
Partnership Guarantee Trustee under this Preferred Partnership Securities
Guarantee; and
(iv) no provision of this Preferred Partnership Securities
Guarantee shall require the Partnership 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 Partnership 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 Partnership Securities Guarantee or adequate
indemnity, reasonably satisfactory to the Partnership Guarantee Trustee, against
such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly provided, every provision of this
Preferred Partnership Securities Guarantee relating to the conduct or affecting
the liability of or affording protection to the Partnership Guarantee Trustee
shall be subject to the provisions of Sections 3.01(c) and 3.01(d).
SECTION 3.02 CERTAIN RIGHTS OF PARTNERSHIP GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) the Partnership 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 Partnership Securities Guarantee shall be sufficiently evidenced by an
Officer's Certificate;
(iii) whenever, in the administration of this Preferred
Partnership Securities Guarantee, the Partnership Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking, suffering or
omitting to take any action hereunder, the Partnership 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 Partnership Guarantee Trustee, shall be
promptly delivered by the Guarantor;
(iv) the Partnership 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 Partnership Guarantee
Trustee shall have the right at any time to seek instructions concerning the
administration of this Preferred Partnership Securities Guarantee from any
court of competent jurisdiction;
(v) the Partnership Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Partnership Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Partnership Guarantee
Trustee such adequate security and indemnity as would satisfy a reasonable
person in the position of the Partnership 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 Partnership Guarantee Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall be taken to
relieve the Partnership 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
Partnership Securities Guarantee;
(vi) the Partnership 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
Partnership Guarantee Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(vii) the Partnership 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 Partnership 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
Partnership Securities Guarantee the Partnership Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Partnership Guarantee Trustee (1) may
request instructions from the Holders of a Majority in Liquidation Amount of the
Preferred Partnership 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 Partnership 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
(x) the Partnership 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 Partnership Securities Guarantee.
(viii) The Partnership Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Partnership 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.
(ix) Any action taken by the Partnership Guarantee Trustee or its agents
hereunder shall bind the Holders of the Partnership Preferred Securities, and
the signature of the Partnership 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 Partnership Guarantee trustee to
so act or as to its compliance with any of the terms and provisions of this
Partnership Guarantee, both of which shall be conclusively evidenced by the
Partnership Guarantee Trustee or its agent taking such action.
(b) No provision of this Preferred Partnership Securities Guarantee
shall be deemed to impose any duty or obligation on the Partnership 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 Partnership 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 Partnership 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
PARTNERSHIP SECURITIES GUARANTEE.
The recitals contained in this Preferred Partnership Securities
Guarantee shall be taken as the statements of the Guarantor, and the Partnership
Guarantee Trustee does not assume any responsibility for their correctness. The
Partnership Guarantee Trustee makes no representation as to the validity or
sufficiency of this Preferred Partnership Securities Guarantee.
ARTICLE IV
PARTNERSHIP GUARANTEE TRUSTEE
SECTION 4.01 PARTNERSHIP GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Partnership Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes of
this Section 4.01(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Partnership Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Partnership Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.03(c).
(c) If the Partnership Guarantee Trustee has acquired or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Partnership 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 Partnership Guarantee Trustee from time to time such
reasonable compensation as the Guarantor and the Partnership 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
Partnership Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Partnership Guarantee Trustee
in accordance with the provisions of this Preferred Partnership 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 Partnership Guarantee Trustee and any
predecessor Partnership 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 Partnership 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 Partnership 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 Partnership Guarantee Trustee shall be entitled upon
giving 5 days prior written notice to the Guarantor to exercise a lien prior to
the Preferred Partnership Securities upon all the property and funds held or
collected by the Partnership 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 Partnership
Securities Guarantee.
The provisions of this Section shall survive the termination of this
Guarantee Agreement.
SECTION 4.03 APPOINTMENT, REMOVAL AND RESIGNATION OF PARTNERSHIP
GUARANTEE TRUSTEE.
(a) Subject to Section 4.03(b), unless an Event of Default shall have
occurred and be continuing, the Partnership Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Partnership Guarantee Trustee shall not be removed until a
Successor Partnership Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Partnership
Guarantee Trustee and delivered to the Guarantor.
(c) The Partnership Guarantee Trustee appointed to office shall hold
office until a Successor Partnership Guarantee Trustee shall have been appointed
or until its removal or resignation. The Partnership Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Partnership Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Partnership Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Partnership
Guarantee Trustee and delivered to the Guarantor and the resigning Partnership
Guarantee Trustee.
(d) If no Successor Partnership 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 Partnership Guarantee Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor Partnership
Guarantee Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Partnership Guarantee Trustee.
(e) The Guarantor shall give notice of each resignation and each
removal of the Partnership Guarantee Trustee and each appointment of a Successor
Partnership Guarantee Trustee to all Holders in the manner provided in Section
8.03 hereof. Each notice shall include the name of the Successor Partnership
Guarantee Trustee and the address of its Corporate Trust Office.
(f) No Partnership Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Partnership 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 which 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 Partnership 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 Partnership Guarantee
Trustee, 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 Partnership
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 Partnership Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the [Distributions, Redemption Price, Liquidation Distribution] or
any other sums payable under the terms of the Preferred Partnership Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Partnership Securities
(other than pursuant to the terms of the Partnership Agreement);
(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 Preferred Partnership
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
Partnership 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 Partnership Guarantee 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 Partnership Securities Guarantee will be deposited with
the Partnership Guarantee Trustee to be held for the benefit of the Holders;
(ii) if an Event of Default has occurred and is continuing, the Partnership
Guarantee Trustee has the right to enforce this Preferred Partnership Securities
Guarantee on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Partnership Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Partnership Guarantee Trustee in respect of this Preferred
Partnership Securities Guarantee or exercising any trust or power conferred upon
the Partnership Guarantee Trustee under this Preferred Partnership Securities
Guarantee; and (iv) if the Partnership Guarantee Trustee fails to enforce this
Preferred Partnership Securities Guarantee, any Holder may enforce this
Preferred Partnership Securities Guarantee, or institute a legal proceeding
directly against the Guarantor to enforce the Partnership Guarantee Trustee's
rights under this Preferred Partnership Securities Guarantee without first
instituting a legal proceeding against the Issuer, the Partnership Guarantee
Trustee, or any other Person.
SECTION 5.05 GUARANTEE OF PAYMENT. This Preferred Partnership
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 Partnership 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 Partnership Securities Guarantee, if, at the time of any such payment,
any amounts of Guarantee Payments are due and unpaid under this Preferred
Partnership 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 Partnership 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 Partnership 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 payments made pursuant to the
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 or within any supranational federation to which a jurisdiction in
which the Guarantor is incorporated or organized ("Jurisdiction of
Incorporation"), belongs or any Jurisdiction of Incorporation (or any political
subdivision or taxing authority thereof or therein) or any jurisdiction in which
the Guarantor is managed or has a place of business (each, a "Taxing
Jurisdiction") or by or within any political subdivision thereof or any
authority therein or thereof having power to tax, 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 the Holder of the Preferred
Partnership Securities such additional amount ("Additional Amount") as shall be
necessary in order that the amount received by such Holder after withholding or
deduction shall equal the amount that would otherwise have been due to such
Holder in the absence of such withholding or deduction, except that no such
Additional Amounts shall be payable:
(A) to, or to a Person on behalf of, a Holder who is liable
for such Gross-Up Taxes with respect to the Preferred Partnership Securities
Guarantee, by reason of such Holder having some connection with the relevant
Taxing Jurisdiction (including being a citizen or resident or national of, or
carrying on a business or maintaining a permanent establishment in, or being
physically present in, such Taxing Jurisdiction) other than the mere receipt of
Guarantee Payments;
(B) to, or to a Person on behalf of, a Holder who presents a
Preferred Partnership 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 Partnership 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 Partnership Security (when presentation is required) other than in The
City of New York.
(D) to, or to a Person on behalf of, a Holder who would not
be liable or subject to the withholding or deduction by making a declaration of
non-residence or similar claim for exemption to the relevant tax authority; or
[(E) to, or to a Person on behalf of, a Holder of a
Preferred Partnership Security that is issued in certificated form following and
during the continuance of an Event of Default if such Holder (or any predecessor
Holder) was one of the beneficial owners requesting that such certificated
Preferred Partnership Security be so issued.]
Such Additional Amounts will also not be payable where, had the beneficial owner
of the Preferred Partnership Security (or any interest therein) been the Holder
of the Preferred Partnership Security, it would not have been entitled to
payment of Additional Amounts by reason of any one or more of clauses (A)
through (E) 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
SECTION 6.01 LIMITATION OF TRANSACTIONS. So long as any Preferred
Partnership Securities remain outstanding, if (a) for any distribution period
(as defined in the Partnership Agreement), full distributions on a cumulative
basis on any Preferred Partnership Securities have not been paid when due or
declared and set apart for payment within the period of time allowed by the
Partnership Agreement, (b) an Investment Event of Default has occurred and is
continuing, or (c) the Guarantor is in default of its obligations under the
Preferred Partnership Securities Guarantee which has not been cured within the
period of time allowed under this Preferred Partnership Securities Guarantee,
then, during such period (i) the Guarantor shall not declare or pay dividends
on, make distributions with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to any of its capital stock or comparable
equity interest (except for dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of, its capital stock and
conversations or exchanges of common stock of one class into common stock of
another class) and (ii) the Guarantor shall not make or permit any Finance
Subsidiary to make, any payments that would enable any Finance Subsidiary to
make, any payment of any dividends on, any distribution with respect to, or any
redemption, purchase or other acquisition of, or any liquidation payment with
respect to, any preferred security or comparable equity interest of any Finance
Subsidiary.
SECTION 6.02 SUBORDINATION. This Preferred Partnership 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 made pari passu or
subordinate by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, 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 Partnership Guarantee Trustee under or pursuant
to Section 4.02 hereof.
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION. Subject to Section 4.02 hereof, this
Preferred Partnership Securities Guarantee shall terminate and be of no further
force and effect upon: (i) full payment of the Redemption Price of all Preferred
Partnership Securities, and all accrued and unpaid Distributions to the date of
redemption, (ii) [the distribution of Preferred Partnership Securities to
Holders in exchange for all of the Preferred Partnership 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
Partnership 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 Partnership Securities or under this
Preferred Partnership 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 Partnership
Securities then outstanding.
SECTION 8.02 AMENDMENTS. This Preferred Partnership Securities
Guarantee may be amended only by an instrument in writing entered into by the
Guarantor and the Partnership Guarantee Trustee. Except with respect to any
changes which do not materially adversely affect the rights of Holders (in which
case no consent of Holders will be required), this Preferred Partnership
Securities Guarantee may only be amended with the prior approval of the Holders
of at least a majority in aggregate Liquidation Amount of all the outstanding
Preferred Partnership Securities. The provisions of Article VI 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
Partnership Guarantee Trustee enter into any amendment of this Preferred
Partnership Securities Guarantee.
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 Partnership Securities
Guarantee to be performed by the Guarantor by a separate guarantee satisfactory
to the Partnership Guarantee Trustee, executed and delivered to the Partnership
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 Partnership Guarantee
Trustee and the Holders of the Preferred Partnership Securities:
TXU Europe Limited
The Adelphi
0-00 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Facsimile No: 44 20 78 798082
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: 44 20 78 798082
Attention: Administrative Trustees
(c) if given to the Partnership 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 Partnership Securities:
The Bank of New York
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 Partnership Securities Guarantee
is solely for the benefit of the Holders and, subject to Section 3.01(a), is not
separately transferable from the Preferred Partnership Securities.
SECTION 8.06 INTERPRETATION. In this Preferred Partnership Securities
Guarantee, unless the context otherwise requires:
(a) a term defined anywhere in this Preferred Partnership Securities
Guarantee has the same meaning throughout;
(b) all references to "the Preferred Partnership Securities Guarantee"
or "this Preferred Partnership Securities Guarantee" are to this Preferred
Partnership Securities Guarantee as modified, supplemented or amended from time
to time;
(c) all references in this Preferred Partnership Securities Guarantee
to Articles and Sections are to Articles and Sections of this Preferred
Partnership Securities Guarantee unless otherwise specified;
(d) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Partnership Securities Guarantee unless otherwise
defined in this Preferred Partnership 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 PARTNERSHIP SECURITIES
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
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.
THIS PREFERRED PARTNERSHIP 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 Partnership Guarantee Trustee
By:
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Name:
Title:
