EXHIBIT 4(D)
PREFERRED PARTNERSHIP SECURITIES GUARANTEE
Between
TXU Europe Limited
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
____________, 2000
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS.........................................................1
SECTION 1.01 DEFINITIONS..........................................1
ARTICLE II TRUST INDENTURE ACT................................................4
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.....................4
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED PARTNERSHIP
SECURITIES...........................................4
SECTION 2.03 REPORTS BY THE PARTNERSHIP GUARANTEE TRUSTEE.........5
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................................6
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......8
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......................11
SECTION 4.03 APPOINTMENT, REMOVAL AND RESIGNATION OF
PARTNERSHIP GUARANTEE TRUSTEE.......................12
ARTICLE V GUARANTEE..........................................................12
SECTION 5.01 GUARANTEE...........................................12
SECTION 5.02 WAIVER OF NOTICE AND DEMAND.........................13
SECTION 5.03 OBLIGATIONS NOT AFFECTED............................13
SECTION 5.04 RIGHTS OF HOLDERS...................................14
SECTION 5.05 GUARANTEE OF PAYMENT................................14
SECTION 5.06 SUBROGATION.........................................14
SECTION 5.07 INDEPENDENT OBLIGATIONS.............................15
SECTION 5.08 ADDITIONAL AMOUNTS..................................15
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.........................16
SECTION 6.01 LIMITATION OF TRANSACTIONS..........................16
SECTION 6.02 SUBORDINATION.......................................17
ARTICLE VII TERMINATION......................................................18
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ARTICLE VIII MISCELLANEOUS...................................................18
SECTION 8.01 SUCCESSORS AND ASSIGNS..............................18
SECTION 8.02 AMENDMENTS..........................................18
SECTION 8.03 CONSOLIDATIONS AND MERGERS..........................19
SECTION 8.04 NOTICES.............................................19
SECTION 8.05 BENEFIT.............................................20
SECTION 8.06 INTERPRETATION......................................20
SECTION 8.07 GOVERNING LAW.......................................21
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CROSS-REFERENCE TABLE*
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Section of Section of
Trust Indenture Act Preferred
of 1939, as amended Trust
------------------- Securities
Guarantee
---------
310(a)..........................................................4.01(a)
310(b)..........................................................4.01(c), 2.08
310(c)..........................................................Inapplicable
311(a)..........................................................2.02(b)
311(b)..........................................................2.02(b)
311(c)..........................................................Inapplicable
312(a)..........................................................2.02(a)
312(b)..........................................................2.02(b)
313.............................................................2.03
314(a)..........................................................2.04
314(b)..........................................................Inapplicable
314(c)..........................................................2.05
314(d)..........................................................Inapplicable
314(e)..........................................................1.01, 2.05,
3.02
314(f)..........................................................2.01, 3.02
315(a)..........................................................3.01(d)
315(b)..........................................................2.07
315(c)..........................................................3.01
315(d)..........................................................3.01(d)
316(a)..........................................................5.04(a), 2.06
316(b)..........................................................5.03
316(c)..........................................................2.02
317(a)..........................................................Inapplicable
317(b)..........................................................Inapplicable
318(a)..........................................................2.01(b)
318(b)..........................................................2.01
318(c)..........................................................2.01(a)
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* This Cross-Reference Table does not constitute part of the Preferred
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 (the
"Preferred Partnership Securities Guarantee"), dated as of __________, 2000, is
executed and delivered by TXU Europe Limited, a private limited company
incorporated under the laws of England and Wales (the "Guarantor"), and The Bank
of New York, as trustee (the "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 (as the same may be amended from time to time in accordance with its
terms, the "Partnership Agreement"), dated as of the date hereof, the Issuer is
issuing a single series of limited partner interests in the Issuer (the
"Preferred Partnership Securities");
WHEREAS, pursuant to the Partnership Agreement, the proceeds received
by the Issuer from the issuance and sale of the Preferred Partnership Securities
will be invested by the Issuer in beneficial interests in junior subordinated
debentures of TXU Eastern Funding Company and one or more other Investment
Affiliates and to a limited extent, in other eligible debt securities; and
WHEREAS, the Guarantor, as an incentive for the Holders (as defined
herein) to purchase Preferred Partnership 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 the Trust Agreement as in
effect on the date hereof.
"Affiliate Investment Instrument" shall have the meaning set forth in
the Partnership Agreement.
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law to close.
"Distributions" shall have the meaning set forth in the Partnership
Agreement.
"Distribution Payment Date" shall have the meaning set forth in the
Partnership Agreement.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred 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.
"Funding" means TXU Eastern Funding Company or its successor.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Partnership Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions in respect of Preferred Entitlements that have
theretofore been properly declared by the General Partner on the Preferred
Partnership Securities out of funds legally available to the Issuer therefor,
(ii) the redemption price of the Preferred Partnership Securities, including all
accumulated and unpaid Distributions in respect of Preferred Entitlements to the
date of redemption ( the "Redemption Price"), payable out of funds legally
available to the Issuer therefor, with respect to any Preferred Partnership
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer, the lesser of
(a) the aggregate of the liquidation preference and all accumulated and unpaid
Distributions in respect of Preferred Entitlements on the Preferred Partnership
Securities to the date of payment and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer
after satisfaction of all liabilities of the Issuer (in either case, the
"Liquidation Distribution"). The term Guarantee Payments shall include any
Additional Amounts payable by the Guarantor in respect of payments under the
Preferred Partnership Securities Guarantee.
"Holder" means a Person in whose name a Preferred Partnership Security
or Preferred Partnership Securities is registered on the books and records of
the Issuer; provided, however, that in determining whether the holders of the
requisite percentage of Preferred Partnership Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or
any Affiliate of the Guarantor.
"Investment Affiliate" shall have the meaning set forth in the
Partnership Agreement.
"Investment Event of Default" shall have the meaning set forth in the
Partnership Agreement.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Guarantor, and delivered to the 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 Preferred
Partnership Securities Guarantee shall include:
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(a) a statement that the Person signing the Officer's Certificate or
the Opinion of Counsel has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such Person in rendering the Officer's Certificate
or the Opinion of Counsel;
(c) a statement that such Person has made such examination or
investigation as, in such Person's opinion, is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such Person, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Partnership Guarantee Trustee or the Guarantor or an Affiliate
of the Guarantor, or an employee or any thereof, who shall be acceptable to the
Partnership Guarantee Trustee.
"Partnership Agreement" shall have the meaning set forth on the first
page hereof.
"Partnership Guarantee Trustee" means The Bank of New York until a
Successor Partnership Guarantee Trustee 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.
"Preferred Entitlements" shall have the meaning set forth in the
Partnership Agreement and, for purposes of this Preferred Partnership Securities
Guarantee, shall include any Compounded Preferred Entitlements (as defined in
the Partnership Agreement).
"Preferred Trust Securities" means the the ___% Trust Originated
Preferred SecuritiesSM issued by the Trust.
"Property Trustee" shall have the meaning set forth in the Partnership
Agreement.
"Special Representative" shall have the meaning set forth in the
Partnership Agreement.
"Subsidiary Debenture" means any Affiliate Investment Instrument
beneficially owned by the Partnership.
"Successor Partnership Guarantee Trustee" means a successor
Partnership Guarantee Trustee possessing the qualifications to act as
Partnership Guarantee Trustee under Section 4.01.
"Tax Payments" means any direct or indirect payment to governmental
authorities, as and when due, in respect of taxes imposed by the United States,
the United Kingdom, or any other country in which Guarantor or its subsidiaries
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operate, and arising from the operations of Guarantor, Funding, the Partnership,
the Trust or any other subsidiary of Guarantor.
"Trust" means TXU Europe Capital I, or its successor permitted by the
Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred 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
duties imposed by the Trust Indenture Act 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 Partnership Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Partnership 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. Within 60
days after May 15 in each year, commencing May 15, 2000, the Partnership
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313(a) of the Trust Indenture Act, if any, in the form and in the manner
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provided by Section 313(a) of the Trust Indenture Act. The Partnership 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 as are required by Section 314 of the Trust Indenture
Act, if any, and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the 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 Preference 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 a
Responsible Officer 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 a Responsible Officer of the
Partnership Guarantee Trustee charged with the administration of this Preferred
Partnership Securities Guarantee shall have received a written notice thereof or
a Responsible Officer of the Partnership Guarantee Trustee charged with the
administration of this Preferred Partnership Securities Guarantee shall have
obtained actual knowledge thereof.
SECTION 2.08 CONFLICTING INTERESTS. The Trust Agreement, the Preferred
Trust Securities Guarantee, and the Indenture (For Subordinated Unsecured Debt
Securities) dated as of _______, 2000 of TXU Eastern Funding Company and TXU
Europe Limited to The Bank of New York, as trustee, shall be deemed to be
specifically described in this Preferred Partnership Securities Guarantee for
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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 to a Holder
exercising his or her rights pursuant to Section 5.04, to a Special
Representative for the purpose of enforcing the rights of the Holders 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 conveyancing 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 this Preferred Partnership Securities Guarantee has
been undertaken and is being pursued by the Special Representative, the
Partnership Guarantee Trustee shall enforce this Preferred Partnership
Securities Guarantee for the benefit of the Holders of the Preferred Partnership
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:
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(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
Preference 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:
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(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(c) 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;
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(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 Preference 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);
(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.
(xi) any action taken by the Partnership Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Partnership 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.
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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);
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(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
Preferred Partnership Securities Guarantee.
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.
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(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 that the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.02 WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Preferred 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, the 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 in respect of Preferred Entitlements, 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;
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(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)in the event of the appointment of a Special Representative to, among other
things, enforce this Preferred Partnership Securities Guarantee, the Special
Representative may take possession of this Preferred Partnership Securities
Guarantee for such purposes, (iii) if no Special Representative has been
appointed, 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 Preference 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 or the
Special Representative in respect of this Preferred Partnership Securities
Guarantee or exercising any trust or power conferred under this Preferred
Partnership Securities Guarantee; and (iv) if either the Partnership Guarantee
Trustee or the Special Representative fails to enforce its rights under this
Preferred Partnership Securities Guarantee after a Holder has made a written
request therefor, such Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Preferred Partnership Securities
Guarantee without first instituting a legal proceeding against the Issuer, the
Special Representative, the Partnership Guarantee Trustee, or any other Person.
If a Special Representative has been appointed, this Special
Representative may enforce the rights of the Holders under this Preferred
Partnership Securities Guarantee.
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).
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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 Guarantee Payments shall be made
free and clear of, and without withholding or deduction for or on account of,
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed levied, collected, withheld or assessed by a
jurisdiction in which the Guarantor is incorporated or organized or is managed
or controlled or has a place of business or any political subdivision or taxing
authority thereof (each, a "Taxing Jurisdiction"), unless such withholding or
deduction is required by law. In the event of any such withholding or deduction
("Gross-Up Taxes"), the Guarantor shall pay to each Holder of the Preferred
Partnership Securities such additional amounts ("Additional Amounts") as shall
be necessary so that the net amount received by such Holder after withholding or
deduction shall equal the amount that would otherwise have been due to such
Holder in the absence of such withholding or deduction, except that, if the
Preferred Partnership Securities are distributed to the holders of the Preferred
Trust Securities in liquidation of the Trust, no such Additional Amounts shall
be payable:
(A) to, or to a Person on behalf of, a Holder who is liable
for Gross-Up Taxes with respect to the Preferred Partnership Securities
Guarantee, by reason of such Holder having some connection with a Taxing
Jurisdiction (including being a citizen or resident or national of, or carrying
on a business or maintaining a permanent establishment in, or being physically
present in, such Taxing Jurisdiction) other than through the mere receipt of
Guarantee Payments;
(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;
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(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; or
(D) to, or to a Person on behalf of, a Holder who would not
be liable or subject to Gross-Up Taxes by making a declaration of non-residence
or similar claim for exemption to the relevant tax authority.
Following any distribution of Preferred Partnership Securities to the holders of
the Preferred Trust Securities upon liquidation of the Trust, no Additional
Amounts will 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 (D) above. If the
Guarantor shall determine that Additional Amounts will not be payable because of
the immediately preceding sentence, the Guarantor will inform such Holder
promptly after making such determination setting forth the reason(s) thereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01 LIMITATION OF TRANSACTIONS. So long as any Preferred
Partnership Securities remain outstanding, if
(A) if an amount of Distributions in respect of Preferred Entitlements
equal to the Preferred Entitlements accumulated to the immediately
preceding Distribution Payment Date has not been paid to, or duly
provided for, the Holders of the outstanding Preferred Partnership
Securities or, so long as any Preferred Trust Securities remain
outstanding, if such amount has not been paid to, or duly provided for,
the holders of the outstanding Preferred Trust Securities;
(B) an Investment Event of Default with respect to any Subsidiary
Debentures has occurred and is continuing and Guarantor defaults on its
obligations under the related guarantee of Subsidiary Debentures, or
(C) the Guarantor is in continuing default of its obligations under the
Preferred Trust Securities Guarantee or the Partnership Guarantee,
then, during such period neither Guarantor nor any issuer of Subsidiary
Debentures shall, directly or indirectly,
(i) declare or pay any cash dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any
of its issued share capital or comparable equity interest other than
dividends or distributions paid to Guarantor or any of Guarantor's
subsidiaries;
(ii) make any payments on, or repay, repurchase or redeem, any of its
debt securities that rank equally with or junior to any Subsidiary
Debentures or any guarantee thereof;
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(iii) make any payments with respect to any guarantee that ranks
equally or junior to any of the Subsidiary Debentures or any guarantee
thereof;
(iv) make any payments on, or repay, repurchase or redeem, any debt or
other securities held or issued by, make payments with respect to any
guarantee of any debt or other securities of, or make any loans or
advances to, any Affiliate of Guarantor that is not also a subsidiary
of Guarantor; or
(v) cause their subsidiaries to make any payments on, or repay,
repurchase or redeem, any debt or other securities held or issued by,
make payments with respect to any guarantee of any debt or other
securities of, or make any loans or advances to, any Affiliate of
Guarantor that is not also a subsidiary of Guarantor.
These restrictions will not apply, however, to any of the following
transactions:
(a) any payments required by law;
(b) dividends or distributions in, or options, warrants or rights to
subscribe for or purchase, shares or comparable equity interests of
Guarantor or of any issuer of Subsidiary Debentures, and exchanges or
conversions of shares or comparable equity interests of one class for
shares or comparable equity interests of another class of the same
issuer;
(c) payments by Guarantor under the Preferred Trust Securities
Guarantee or the Preferred Partnership Securities Guarantee;
(d) payments by any issuer of Subsidiary Debentures on those
Subsidiary Debentures or payments by Guarantor under any guarantee
of Subsidiary Debentures;
(e) any dividend or payment by Guarantor which is applied, directly
or indirectly, to any Tax Payments; or
(f) payments by Guarantor or any issuer of Subsidiary Debentures,
directly or indirectly, on loans from Funding (or any subsidiary of
Guarantor) to Guarantor or any of Guarantor's subsidiaries made with
the proceeds from the issuance by Funding (or such other subsidiary
making such loan) of securities guaranteed by Guarantor (provided that
such guarantee ranks senior to all subordinated indebtedness of
Guarantor, including Guarantor's guarantees of Subsidiary Debentures),
or loans made in connection with the reinvestment of those proceeds.
Guarantor shall cause any issuer of Subsidiary Debentures to execute and deliver
to the Partnership Guarantee Trustee an instrument in substantially the form of
Exhibit A hereto.
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 that are made to
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rank equally or subordinate by their terms to this Preferred Partnership
Securities Guarantee, (ii) equally with any preference share capital now or
hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any preferred security of any
Finance Subsidiary, and (iii) senior to all common stock of the Guarantor.
Nothing in this Section 6.02 shall apply to claims of, or payments to, the
Partnership Guarantee Trustee under or pursuant to Section 4.02 hereof.
SECTION 6.03 OWNERSHIP. Guarantor covenants to maintain, directly or
indirectly, ownership of 100% of the General Partner Interest.
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 or (ii) full payment of the amounts payable in accordance
with the Partnership 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 in accordance with the Delaware Partnership Act 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, preferences or
privileges 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 Liquidation Preference
of all the outstanding Preferred Partnership Securities; provided, however, that
if the Property Trustee on behalf of the Trust is the Holder, any amendment or
proposal requiring the approval of the Holders of a Majority in Liquidation
Preference of all the outstanding Preferred Partnership Securities will not be
effective without the prior or concurrent approval of the holders of a majority
in liquidation amount of the outstanding Preferred Trust Securities having a
right to vote. The provisions of Section [14.3] of the Partnership Agreement
concerning meetings of Holders, and the provisions of Section [13.2] of the
Trust Agreement concerning meetings of holders of the Preferred Trust
Securities, respectively, shall apply to the giving of such approval. Nothing
herein contained shall be deemed to require that the Partnership Guarantee
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Trustee enter into any amendment of this Preferred Partnership Securities
Guarantee. Except as permitted by Section 8.03, the Guarantor may not assign its
rights or delegate its obligations under this Preferred Partnership Securities
Guarantee without the prior approval of the Holders of a Majority in Liquidation
Preference of the Preferred Partnership Securities.
SECTION 8.03 CONSOLIDATIONS AND MERGERS. The Guarantor may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other corporation or other entity; provided, that in any
such case, (i) either the Guarantor shall be the continuing entity, or the
successor entity shall be a corporation or other entity organized and existing
under the laws of England and Wales, or any state of the United States of
America, and such successor entity shall expressly assume the due and punctual
payment of the Guarantee Payments payable pursuant to Section 5.01 hereof and
the due and punctual performance and observance of all of the covenants and
conditions of this Preferred 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
β-ββ ββββ ββββ ββββββ
ββββββ, βββββββ ββββ βββ
Facsimile No: ββ-βββ-βββ-ββββ
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
β-ββ ββββ ββββ ββββββ
ββββββ, βββββββ ββββ βββ
Facsimile No: ββ-βββ-βββ-ββββ
Attention: Administrative Trustees
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(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
βββ βββββββ ββββββ
ββ ββββ
βββ ββββ, βββ ββββ βββββ
Facsimile No: (βββ) βββ-ββββ
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.
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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.
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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:
-----------------------------------
Name:
Title:
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EXHIBIT A
For good and valuable consideration, receipt of which is hereby acknowledged,
[Subsidiary] hereby agrees to be bound by the terms of Section 6.01 of the
Preferred Partnership Securities Guarantee between TXU Europe Limited (as
Guarantor) and The Bank of New York (as Trustee) dated as of _________, 2000 so
long as TXU Eastern Funding I, L.P. is the beneficial owner of any of its
securities.
Dated:
[Subsidiary]
By:
-----------------------------------
Name:
Title:
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