EXHIBIT 4.14
FORM OF GUARANTEE AGREEMENT
BETWEEN
UNION ELECTRIC COMPANY
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 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. GUARANTEE TRUSTEE; 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.........................................................................14
SECTION 506. SUBROGATION..................................................................................14
SECTION 507. INDEPENDENT OBLIGATIONS......................................................................15
ARTICLE VI COVENANTS [AND SUBORDINATION]................................................................15
[SECTION 601. SUBORDINATION................................................................................15]
SECTION 602. PARI PASSU GUARANTEES........................................................................15
ARTICLE VII TERMINATION..................................................................................15
SECTION 701. TERMINATION..................................................................................15
ARTICLE VIII MISCELLANEOUS................................................................................16
SECTION 801. SUCCESSORS AND ASSIGNS.......................................................................16
SECTION 802. AMENDMENTS...................................................................................16
SECTION 803. NOTICES......................................................................................16
SECTION 804. BENEFIT......................................................................................17
SECTION 805. INTERPRETATION...............................................................................17
SECTION 806. GOVERNING LAW................................................................................18
SECTION 807. COUNTERPARTS.................................................................................18
(i)
UNION ELECTRIC 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 _____________ is executed and
delivered by
Union Electric Company, a Missouri corporation (the "Guarantor")
having its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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 Union Electric Capital
Trust __, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of _____________, among
Union Electric Company, as
Depositor, ______________, as Property Trustee (the "Property Trustee"),
__________________ Delaware, 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 ____________________, as 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 ______________, between
Union Electric Company 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.
"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
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[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
___________, entered among
Union Electric Company, 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, the Guarantee Agreement dated as of ___________
between the Guarantor and ____________________, as guarantee trustee, relating
to the Trust, and the Amended and Restated Trust Agreement dated as of
______________ among the Guarantor, as Depositor, ____________________, as
Property Trustee, _________________, as Delaware Trustee and the Administrators
named therein, relating to the Trust, 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
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
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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
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 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;
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(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 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.
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The provisions of this Section shall survive termination of this Guarantee
Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 401. GUARANTEE TRUSTEE; 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.
(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.
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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 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 Trustee appointed by the Guarantor. If no Successor
Guarantor 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
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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
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.
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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 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;
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(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 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
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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 other security, guarantee or other
obligation that is expressly stated to rank PARI PASSU with the obligations of
the Guarantor under this Guarantee Agreement.
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.
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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 XI 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:
(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:
Union Electric Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (314) 621-____
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:
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Union Electric Capital Trust ___
c/o
Union Electric Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (314) 621-____
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 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;
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(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.
UNION ELECTRIC COMPANY
as Guarantor
By:
-----------------------------------
Name:
Title:
--------------------,
as Guarantee Trustee, and not
in its individual capacity
By:
-----------------------------------
Name:
Title:
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