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Additional Guaranty Agreement
Additional Guaranty Agreement (75K)
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ADDITIONAL GUARANTY AGREEMENT
THIS ADDITIONAL GUARANTY AGREEMENT, dated as of November 19, 2002 (this
"Guaranty Agreement"), is made by TXU Energy Company LLC, a Delaware limited
liability company (together with its successors and assigns, including Surviving
Entities pursuant to Section 9(b) and Replacement Guarantors pursuant to Section
21, the "Guarantor"), in favor of State Street Bank and Trust Company of
Connecticut, National Association, as Owner Trustee of the ZSF/Dallas Tower
Trust, a Delaware grantor trust (in such capacity, together with its successors
and assigns, the "Lessor"). Capitalized terms used herein have the meanings
ascribed to such terms in Section 22 (including the incorporation of the
definitions of terms that are defined in the Lease, as defined below), unless
otherwise defined elsewhere herein.
WHEREAS, Lessor and TXU Properties Company, a Texas corporation
(together with its successors and permitted assigns, the "Lessee"), have entered
into that certain Lease Agreement dated as of February 14, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "Lease");
and
WHEREAS, TXU Corp., a Texas corporation (the "Parent") executed a
Guaranty Agreement dated as of February 14, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "Parent Guaranty
Agreement"), in favor of the Lessor; and
WHEREAS, Lessor, LaSalle Bank National Association, as Indenture
Trustee (in such capacity, together with its successors and assigns, the
"Indenture Trustee"), and First Union National Bank, as Servicer (in such
capacity, together with its successors and assigns, the "Servicer"), are parties
to that certain Indenture and Servicing Agreement dated as of February 14, 2002
(as amended, restated, supplemented or otherwise modified from time to time, the
"Indenture"); and
WHEREAS, in connection with the transactions contemplated by the
Indenture, LaSalle Bank National Association, as Pass-Through Trustee for the
benefit of the Certificateholders (as defined below)(in such capacity, together
with its successors and assigns, the "Pass-Through Trustee"), has executed and
delivered that certain Declaration of Trust dated as of February 14, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Declaration of Trust"), pursuant to which the Energy Plaza Lease Pass-Through
Trust, a Delaware grantor trust (the "Trust") was created; and
WHEREAS, pursuant to the Assignment of Agreements (as defined in the
Indenture) and the Assignment of Lease (as defined in the Indenture), the Lessor
has assigned to the Indenture Trustee for the benefit of the registered holders
from time to time of the Secured Notes (the "Holders"), and for the benefit of
the registered holders from time to time (the "Certificateholders") of the Trust
Certificates issued pursuant to the Declaration of Trust (the "Certificates"),
all of its rights, titles, and interests in and to the Lease, the Parent
Guaranty Agreement and the other Lease Operative Documents (other than the
Excepted Payments and the Excepted Rights), including, without limitation, the
immediate and continuing right to collect and enforce any Additional Guaranty
from time to time executed pursuant to Section 9(c) of the Parent Guaranty
Agreement; and
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WHEREAS, TXU Europe Limited, a corporation incorporated under the laws
of England and Wales ("TXU Europe"), is a subsidiary of the Parent and has filed
a petition for administration under the laws of England; and
WHEREAS, the Lessee and the Guarantor have been notified by a Majority
in Interest of Certificateholders (as defined in the Indenture) that (i) the
taking of action by TXU Europe to authorize and effect such administration
constitutes a Lease Event of Default under Section 16.1(f)(I) of the Lease (such
Lease Event of Default, the "Existing Lease Default"), and (ii) the Existing
Lease Default caused an Event of Default under clause (e) of Section 10.1 of the
Indenture (together with the Existing Lease Default, collectively, the "Existing
Defaults"); and
WHEREAS, the Lessee and Guarantor have requested, and
Certificateholders constituting a Majority in Interest of Certificateholders are
willing to agree to instruct the Indenture Trustee and the Servicer to waive the
Existing Defaults and to forbear from exercising remedies with respect to the
Existing Defaults, in each case subject to the terms and conditions set forth in
a letter agreement dated as of the date hereof (the "Waiver Agreement"), among
the Lessee, the Parent, the Guarantor and such Certificateholders, including,
without limitation, the condition precedent that the Guarantor execute and
deliver this Guaranty Agreement; and
WHEREAS, the Guarantor is an indirect wholly-owned Subsidiary of the
Parent and an Affiliate of the Lessee and is engaged in related and
interdependent businesses with the Parent and the Lessee; and
WHEREAS, the Guarantor is desirous that a Majority in Interest of
Certificateholders execute and deliver the Waiver Agreement and will receive
substantial financial and other benefits from such execution and delivery as a
member of the consolidated group of entities that includes the Parent and the
Lessee; and
WHEREAS, the Board of Managers (or equivalent governing body) of the
Guarantor has determined that it is in the best interests of the Guarantor and
is advisable to execute and deliver this Guaranty Agreement as an Additional
Guaranty pursuant to Section 9(c) of the Parent Guaranty Agreement (and not as a
Replacement Guaranty pursuant to Section 21 of the Parent Guaranty Agreement);
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby covenants and
agrees with, and represents and warrants to the Lessor for the benefit of each
of the Lessor, the Servicer, the Trust, the Pass-Through Trustee, each other
Holder, each Certificateholder, each Indemnitee, each member of each
Indemnitee's Group, each Tax Indemnitee and each other Person to whom Base Rent
or Supplemental Rent may be payable pursuant to the Lease (together with all
successors and assigns of the foregoing, collectively, the "Beneficiaries," and
each individually, a "Beneficiary") as follows:
1. THE GUARANTY. The Guarantor hereby irrevocably and unconditionally
guarantees to each Beneficiary to which such obligations are owing the
following obligations:
(i) the due, punctual and full payment by the Lessee
(whether at the stated time for payment thereof, by demand or
otherwise) of
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all amounts to be paid by the Lessee pursuant to the Lease and the
other Lease Operative Documents, including but not limited to Base
Rent, Supplemental Rent, amounts payable by the Lessee if the Lessee
self-insures pursuant to Section 9.1(g) of the Lease, amounts payable
by the Lessee pursuant to Sections 19.1 and 19.2 of the Lease (and
other similar provisions of the other Lease Operative Documents), the
purchase price of the Property if the Lessee exercises its right to
purchase the Property pursuant to the Lease, any applicable Make-Whole
Premium, any Termination Value Payment, any Stipulated Loss Value
Payment, any late charges or penalties, interest payable on late
charges or penalties, all amounts payable by the Lessee under Article
17 of the Lease (including but not limited to liquidated damages),
fees, expenses (including but not limited to the reasonable fees and
expenses of attorneys, accountants, experts, and advisors), or other
similar costs (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a) of the
United States Bankruptcy Code, 11 U.S.C.ss.362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C.ss.502(b) andss.506(b)); and
(ii) the due, prompt and faithful performance of, and
compliance with, all other obligations, covenants, terms, conditions
and undertakings of the Lessee contained in each Lease Operative
Document to which the Lessee is a party in accordance with the terms
thereof (all such obligations described in clauses (i) and (ii) above
are herein called the "Guaranteed Obligations").
The guaranty in the preceding sentence is an absolute, present and
continuing guaranty of payment and not of collectability and is in no
way conditional or contingent upon any attempt to collect from the
Lessee, the Parent or any other Person or upon any other action,
occurrence or circumstance whatsoever. In the event that the Lessee
shall fail so to pay any of such Guaranteed Obligations, the Guarantor
agrees to pay the same when due to each Beneficiary, without demand,
presentment, protest or notice of any kind. Each default under any
Lease Operative Document shall give rise to a separate cause of action
hereunder and separate suits may be brought hereunder as each cause of
action arises.
The Guarantor also hereby agrees to pay and to indemnify and save each
Beneficiary harmless from and against any damage, loss, cost or expense
(including but not limited to the reasonable fees and expenses of
attorneys, accountants, and advisors) which such Beneficiary may incur
or be subject to as a consequence, direct or indirect, of (i) any
breach by the Guarantor or the Lessee of any covenant, term or
condition in, or the occurrence of any default under, this Guaranty
Agreement or any other Lease Operative Document, together with all
expenses resulting from the compromise or defense of any claims or
liabilities arising as a result of any such breach or default, and
(ii) any legal action threatened or commenced in connection with or +
relating to this Guaranty Agreement or any other Lease Operative
Document.
2. OBLIGATIONS ABSOLUTE. The obligations of the Guarantor hereunder shall
be primary, absolute, irrevocable and unconditional, irrespective of
the validity, regularity or enforceability of any of the Indenture,
the Lease, the Parent Guaranty Agreement or any of the other Operative
Documents (collectively, the "Transaction Documents"), shall
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not be subject to any counterclaim, setoff, deduction or defense based
upon any claim the Guarantor may have against the Lessee, the Parent,
any Beneficiary, or otherwise, and shall remain in full force and
effect without regard to, and (subject to the provisions of Section
21 hereof with respect to the release of the Guarantor upon the
substitution of a Replacement Guarantor hereunder) shall not be
released, discharged or in any way affected by, any circumstance or
condition whatsoever (whether or not the Guarantor shall have any
knowledge or notice thereof), including, without limitation:
(a) any amendment, restatement, supplement or other modification
from time to time to or of the Transaction Documents or any other
instrument referred to therein (except that the obligations of the
Guarantor hereunder shall apply to the Transaction Documents or such
other instruments as so amended, restated, supplemented or modified)
or any assignment or transfer of any thereof or of any interest
therein, or any furnishing, acceptance or release of any security for
the Guaranteed Obligations, (b) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of the
Transaction Documents; (c) any bankruptcy, insolvency, readjustment,
composition, liquidation or similar proceeding with respect to the
Lessor, the owner participant in the Lessor, the Pass-Through Trustee,
the Parent or the Lessee or its property; (d) any merger,
amalgamation or consolidation of the Guarantor, the Lessor, the
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TXU
As referenced in this Additional Guaranty Agreement:
TXU Corp – Lease Agreement dated as of February 14, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "Lease");
and
WHEREAS, TXU Corp ., a Texas corporation (the "Parent") executed a
Guaranty Agreement dated as of February 14, 2002 (as amended, restated,
supplemented or otherwise modified
_____________
dt 253254
;
 First Union
As referenced in this Additional Guaranty Agreement:
First Union National Bank, – and
WHEREAS, Lessor, LaSalle Bank National Association, as Indenture
Trustee (in such capacity, together with its successors and assigns, the
"Indenture Trustee"), and First Union National Bank, as Servicer (in such
capacity, together with its successors and assigns, the "Servicer"), are parties
to that certain Indenture and Servicing Agreement
_____________
dt 255618
;
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 Hunton
As referenced in this Additional Guaranty Agreement:
Hunton & Williams, – manner: (a) if to the Guarantor, to TXU Energy
Company LLC, Attention: Treasurer, 1601 Bryan St., Dallas, Texas 75201,
with a copy to Hunton & Williams, 1601 Bryan Street, Dallas, Texas
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75201, or (b) if to Lessor or any other Beneficiary, to the address
of Lessor
_____________
dt 254871
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