As filed with the Securities and Exchange Commission on December 10, 1998.
Registration Nos. 333- and 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
TEXAS UTILITIES COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
TEXAS 75-2669310
(STATE OF INCORPORATION (I.R.S. EMPLOYER
OR ORGANIZATION) IDENTIFICATION NO.)
TXU CAPITAL I
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE TO BE APPLIED FOR
(STATE OF INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION) IDENTIFICATION NO.)
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
(214) 812-4600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
ROBERT A. WOOLDRIDGE, PETER B. TINKHAM ROBERT J. REGER,
Esq. Secretary and JR., Esq.
Worsham, Forsythe Assistant Thelen Reid &
& Wooldridge, L.L.P. Treasurer Priest LLP
1601 Bryan Street Texas Utilities 40 West 57th Street
Dallas, Texas 75201 Company New York, New York
(214) 979-3000 1601 Bryan Street 10019
Dallas, Texas 75201 (212) 603-2000
(214) 812-4600
(NAMES AND ADDRESSES, INCLUDING ZIP CODES, AND TELEPHONE NUMBERS,
INCLUDING AREA CODES, OF AGENTS FOR SERVICE)
--------------------
It is respectfully requested that the Commission send copies of
all notices, orders and communications to:
STEPHEN K. WAITE, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
(212) 858-1000
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT
BECOMES EFFECTIVE WHEN WARRANTED BY MARKET CONDITIONS AND OTHER
FACTORS.
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE
BEING OFFERED PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT
PLANS, PLEASE CHECK THE FOLLOWING BOX. [ ]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE
TO BE OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE
415 UNDER THE SECURITIES ACT OF 1933, OTHER THAN SECURITIES
OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST REINVESTMENT
PLANS, CHECK THE FOLLOWING BOX. [X]
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR
AN OFFERING PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT,
PLEASE CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT
REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE
REGISTRATION STATEMENT FOR THE SAME OFFERING. [ ]
<PAGE>
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO
RULE 462(C) UNDER THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND
LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE
EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING.
[ ]
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE
PURSUANT TO RULE 434, PLEASE CHECK THE FOLLOWING BOX. [ ]
--------------------
CALCULATION OF REGISTRATION FEE
====================================================================
TITLE OF PROPOSED PROPOSED
EACH CLASS OF MAXIMUM MAXIMUM
SECURITIES OFFERING AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT PRICE FEE
--------------------------------------------------------------------
Debt Securities (1)(4) (2) (1)(2)(3)(4) N/A
--------------------------------------------------------------------
TXU Capital I
Preferred Trust
Securities (1)(5) (2) (1)(2)(3)(5) N/A
--------------------------------------------------------------------
Texas Utilities
Company
Guarantee with
respect to TXU
Capital I
Preferred Trust
Securities(6)(7)
--------------------------------------------------------------------
Texas Utilities
Company
Junior
Subordinated
Debentures(8)
--------------------------------------------------------------------
Total $400,000,000 (2) $400,000,000(3) $111,200
====================================================================
(1) In no event will the aggregate initial offering price of all
Debt Securities and Preferred Trust Securities issued from
time to time pursuant to this Registration Statement exceed
$400,000,000. If any such securities are issued at an
original issue discount, then the aggregate initial offering
price as so discounted shall not exceed $400,000,000,
notwithstanding that the stated principal amount of such
securities may exceed such amount.
(2) The proposed maximum initial offering price per unit will be
determined, from time to time, by the registrant in
connection with the issuance of the securities registered
hereunder.
(3) Exclusive of accrued interest or distributions, if any.
(4) Subject to footnote (1), there are being registered
hereunder an indeterminate principal amount of Debt
Securities which may be sold, from time to time, by Texas
Utilities Company.
(5) Subject to footnote (1), there are being registered
hereunder an indeterminate amount of Preferred Trust
Securities which may be sold, from time to time, by TXU
Capital I.
(6) No separate consideration will be received for the Texas
Utilities Company Guarantee or the Agreement as to Expenses
and Liabilities.
(7) This registration is deemed to include the rights of the
holders of Preferred Trust Securities under the Guarantee,
the Trust Agreement, the Junior Subordinated Debentures, the
Subordinated Indenture and the Agreement as to Expenses and
Liabilities, together constituting the backup undertakings
as described in this Registration Statement.
(8) The Junior Subordinated Debentures will be purchased by TXU
Capital I with the proceeds of the sale of Preferred Trust
Securities. No separate consideration will be received for
the Junior Subordinated Debentures.
---------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
The information in this Prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This Prospectus is not an offer to sell or the
solicitation of an offer to buy these securities in any
jurisdiction in which an offer, solicitation or sale is not
permitted.
SUBJECT TO COMPLETION, DATED DECEMBER , 1998
PROSPECTUS
$400,000,000
TEXAS UTILITIES COMPANY
DEBT SECURITIES
TXU CAPITAL I
PREFERRED TRUST SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED AS SET
FORTH HEREIN BY
TEXAS UTILITIES COMPANY
-----------------------------------------------------
We will provide specific terms of these securities, their
offering prices and
how they will be offered in supplements to this prospectus.
You should read this prospectus and any supplement carefully
before you invest.
-----------------------------------------------------
These securities have not been approved by the Securities and
Exchange Commission or any state securities commission, nor have
these organizations determined that this prospectus is accurate
or complete. Any representation to the contrary is a criminal
offense.
This prospectus is dated December , 1998.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission using a "shelf"
registration process. Under this shelf process, we may, over the
next two years, sell any combination of the securities described
in this prospectus in one or more offerings up to a total dollar
amount of $400,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we
sell securities, we will provide a prospectus supplement that
will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with
additional information described under the heading WHERE YOU CAN
FIND MORE INFORMATION.
For more detailed information about the securities, you can
read the exhibits filed with the registration statement.
WHERE YOU CAN FIND MORE INFORMATION
Texas Utilities Company (Texas Utilities), a Texas
corporation, was formed in 1997 as a holding company. Texas
Utilities owns all of the outstanding common stock of Texas
Energy Industries, Inc. and ENSERCH Corporation. Texas Utilities
files annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission
under File No. 1-12833. Before Texas Utilities began filing
quarterly and annual reports with the Securities and Exchange
Commission, Texas Energy Industries, Inc. filed those reports
under its old name, Texas Utilities Company, File No. 1-3591.
ENSERCH Corporation also files those reports under File No. 1-
3183. These Securities and Exchange Commission filings are
available to the public over the Internet at the Securities and
Exchange Commission's web site at http://www.sec.gov. You may
also read and copy any of these Securities and Exchange
Commission filings at the Securities and Exchange Commission's
public reference rooms in Washington, D.C., New York, New York
and Chicago, Illinois. Please call the Securities and Exchange
Commission at 1-800-SEC-0330 for further information on the
public reference rooms.
The Securities and Exchange Commission allows us to
"incorporate by reference" the information we file with them,
which means that we can disclose important information to you by
referring you to those documents. The information incorporated
by reference is an important part of this prospectus, and
information that we file later with the Securities and Exchange
Commission will automatically update and supersede this
information. We incorporate by reference the documents listed
below and any future filings we make with the Securities and
Exchange Commission under Section 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934, as amended, until we sell
all of the securities described in this prospectus.
. Texas Utilities' Annual Report on Form 10-K for the
year ended December 31, 1997 (1997 10-K).
. Texas Utilities' Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30,
1998.
. Texas Utilities' Current Reports on Form 8-K dated
February 26, 1998, March 13, 1998, April 8, 1998, April
9, 1998, April 17, 1998, May 19, 1998 (as amended on
June 25, 1998 and July 17, 1998), August 6, 1998,
August 31, 1998 and December 10, 1998.
You may request a copy of these filings at no cost, by
writing or contacting Texas Utilities at the following address:
Secretary, Texas Utilities Company, Energy Plaza, 1601 Bryan
Street, Dallas, Texas 75201; telephone number (214) 812-4600.
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<PAGE>
THE COMPANY
Texas Utilities is a holding company engaged through various
subsidiary companies primarily in providing energy and other
related services, both domestically and internationally. Its
principal direct and indirect subsidiaries are:
Texas Utilities Electric Company, an operating public
utility company engaged in the generation, purchase,
transmission, distribution and sale of electric energy
in the north central, eastern and western parts of
Texas.
ENSERCH Corporation, an integrated company focused on
natural gas. Its major business operations are natural
gas pipeline, processing, marketing and distribution.
It operates primarily in the north central, eastern and
western parts of Texas and engages in the wholesale and
retail marketing of natural gas in several areas of the
United States.
Eastern Group plc, which includes Eastern Electricity
plc, the largest supplier and distributor of
electricity in England and Wales. Eastern Group
companies also include one of the largest generators of
electricity and one of the largest suppliers of natural
gas in the United Kingdom.
Other subsidiaries include:
Texas Utilities Australia Pty. Ltd., owner of Eastern
Energy Limited, which is engaged in the purchase,
distribution, marketing and sale of electric energy in
the State of Victoria, Australia.
Southwestern Electric Service Company, which is engaged
in the purchase, transmission, distribution and sale of
electric energy in ten counties in the eastern and
central parts of Texas.
Lufkin-Conroe Communications Co., an independent local
exchange telephone company serving access lines in
southeast Texas and providing access services to a
number of interexchange carriers who provide long
distance services.
Other wholly owned subsidiaries which perform
specialized functions within the Texas Utilities
system.
Texas Utilities' principal place of business is Energy
Plaza, 1601 Bryan Street, Dallas, Texas 75201.
TXU CAPITAL I
TXU Capital I (TXU Capital) is a Delaware business trust
created pursuant to a Trust Agreement among Texas Utilities, The
Bank of New York as the Property Trustee and The Bank of New York
(Delaware) as the Delaware Trustee and an employee of Texas
Utilities as Administrative Trustee. The Trust Agreement will be
amended and restated substantially in the form filed as an
exhibit to the registration statement. TXU Capital exists only
to issue its Preferred Trust Securities and Common Trust
Securities and to hold the Junior Subordinated Debentures of
Texas Utilities as trust assets. All of the Common Trust
Securities will be owned by Texas Utilities. The Common Trust
Securities will represent at least 3% of the total capital of TXU
Capital. Payments will be made on the Common Trust Securities
pro rata with the Preferred Trust Securities, except that the
right to payment will be subordinated to the rights of the
holders of the Preferred Trust Securities if there is a default
under the Trust Agreement. TXU Capital has a term of
approximately 40 years, but may dissolve earlier as provided in
the Trust Agreement. TXU Capital's business and affairs will be
conducted by its Administrative Trustee. The office of the
Delaware Trustee in the State of Delaware is White Clay Center,
Route 273, Newark, Delaware 19711. The principal place of
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<PAGE>
business of TXU Capital is c/o Texas Utilities, Energy Plaza,
1601 Bryan Street, Dallas, Texas 75201.
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, the
net proceeds from the offering of the securities will be used for
general corporate purposes of Texas Utilities, which may include
the repayment of short-term indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
DIVIDENDS
The ratio of earnings to fixed charges and the ratio of
earnings to combined fixed charges and preferred dividends for
Texas Utilities for each of the years ended December 31, 1993
through 1997 and the twelve months ended September 30, 1998 were,
in each case, 1.53, 1.88, 0.72, 2.18, 2.14, and 1.79,
respectively. The year ended December 31, 1993 was affected by
the recording of regulatory disallowances of approximately $265
million after tax in Texas Utilities Electric Company's Docket
11735. For the year ended December 31, 1995, fixed charges
exceeded earnings by $235 million. The year ended December 31,
1995 was affected by the write-down in value of some of the
nonperforming assets of Texas Utilities' subsidiaries, including
Texas Utilities Electric Company's partially completed Twin Oak
and Forest Grove lignite-fueled facilities and the New Mexico
coal reserves of a subsidiary, as well as several minor assets.
Such write-down, on an after-tax basis, amounted to $802 million.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be Texas Utilities' direct
unsecured general obligations. The Debt Securities will be
senior debt securities. The Debt Securities will be issued under
one or more separate Indentures between Texas Utilities and The
Bank of New York as Trustee under each Indenture.
Selected provisions of the Indenture are summarized below.
This summary is not complete. The form of the Indenture was
filed as an exhibit to the registration statement, and you should
read the Indenture for provisions that may be important to you.
The Indenture will be qualified under the Trust Indenture Act of
1939, as amended. You should refer to the Trust Indenture Act of
1939, as amended, for provisions that apply to the Debt
Securities. Whenever particular provisions or defined terms in
the Indenture are referred to under this DESCRIPTION OF DEBT
SECURITIES, such provisions or defined terms are incorporated by
reference herein.
The Debt Securities will rank equally with all of Texas
Utilities' other senior and unsubordinated debt.
Because Texas Utilities is a holding company that conducts
all of its operations through subsidiaries, holders of Debt
Securities will generally have a position junior to claims of
creditors and preferred stockholders of the subsidiaries of Texas
Utilities. Both ENSERCH Corporation and Texas Utilities Electric
Company have outstanding shares of preferred stock.
A prospectus supplement and an officer's certificate
relating to any series of Debt Securities being offered will
include specific terms relating to that offering. These terms
will include any of the following terms that apply to that
series:
. The title of the Debt Securities;
. The total principal amount of the Debt Securities;
-4-
<PAGE>
. The dates on which the principal of the Debt Securities
will be payable and how it will be paid;
. The interest rate or rates which the Debt Securities
will bear, or how such rate or rates will be
determined, the interest payment dates for the Debt
Securities and the regular record dates for interest
payments;
. Any right to extend the interest payment periods for the
Debt Securities;
. The percentage, if less than 100%, of the principal
amount of the Debt Securities that will be payable if
the maturity of the Debt Securities is accelerated;
. Any date or dates on which the Debt Securities may be
redeemed at the option of Texas Utilities and any
restrictions on such redemptions;
. Any sinking fund or other provisions that would
obligate Texas Utilities to repurchase or otherwise
redeem the Debt Securities;
. Any changes or additions to the Events of Default under
the Indenture or changes or additions to the covenants
of Texas Utilities under the Indenture;
. If the Debt Securities will be issued in denominations other
than $1,000;
. If payments on the Debt Securities may be made in a
currency or currencies other than United States
dollars;
. Any rights or duties of another person to assume the
obligations of Texas Utilities with respect to the Debt
Securities;
. Any collateral, security, assurance or guarantee for the
Debt Securities; and
. Any other terms of the Debt Securities not inconsistent
with the terms of the Indenture.
The Indenture does not limit the principal amount of Debt
Securities that may be issued. The Indenture allows Debt
Securities to be issued up to the principal amount that may be
authorized by Texas Utilities.
Debt Securities may be sold at a discount below their
principal amount. United States federal income tax
considerations applicable to Debt Securities sold at an original
issue discount may be described in the prospectus supplement. In
addition, certain United States federal income tax or other
considerations applicable to any Debt Securities which are
denominated or payable in a currency or currency unit other than
United States dollars may be described in the prospectus
supplement.
Except as may otherwise be described in the applicable
prospectus supplement, the covenants contained in the Indenture
will not afford holders of Debt Securities protection in the
event of a highly-leveraged transaction involving Texas
Utilities.
PAYMENT AND PAYING AGENTS
Except as may be provided in the prospectus supplement,
interest, if any, on each Debt Security payable on each Interest
Payment Date will be paid to the person in whose name such Debt
Security is registered as of the close of business on the regular
record date for the Interest Payment Date. However, interest
payable at maturity will be paid to the person to whom the
principal is paid. If there has been a default in the payment of
interest on any Debt Security, the defaulted interest may be paid
to the holder of such Debt Security as of the close of business
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<PAGE>
on a date between 10 and 15 days prior to the date proposed by
Texas Utilities for payment of such defaulted interest or in any
other manner permitted by any securities exchange on which such
Debt Security may be listed, if the Trustee finds it workable.
Unless otherwise specified in the prospectus supplement,
principal, premium, if any, and interest on the Debt Securities
at maturity will be payable upon presentation of the Debt
Securities at the corporate trust office of The Bank of New York,
in The City of New York, as Paying Agent for Texas Utilities.
Texas Utilities may change the place of payment on the Debt
Securities, may appoint one or more additional Paying Agents
(including Texas Utilities) and may remove any Paying Agent, all
at the discretion of Texas Utilities.
REGISTRATION AND TRANSFER
Unless otherwise specified in the prospectus supplement, the
transfer of Debt Securities may be registered, and Debt
Securities may be exchanged for other Debt Securities of the same
series or tranche, of authorized denominations and with the same
terms and principal amount, at the corporate trust office of The
Bank of New York in The City of New York. Texas Utilities may
change the place for registration of transfer and exchange of the
Debt Securities and may designate additional places for such
registration and exchange. Unless otherwise provided in the
prospectus supplement, no service charge will be made for any
transfer or exchange of the Debt Securities. However, Texas
Utilities may require payment to cover any tax or other
governmental charge that may be imposed. Texas Utilities will
not be required to execute or to provide for the registration of
transfer of, or the exchange of, (a) any Debt Security during a
period of 15 days prior to giving any notice of redemption or (b)
any Debt Security selected for redemption except the unredeemed
portion of any Debt Security being redeemed in part.
DEFEASANCE
Texas Utilities will be discharged from its obligations on
the Debt Securities of a particular series if it deposits with
the Trustee sufficient cash or government securities to pay the
principal, interest, any premium and any other sums when due on
the stated maturity date or a redemption date of such series of
Debt Securities.
LIMITATION ON LIENS
The Indenture provides that, except as otherwise specified
with respect to a particular series of Debt Securities, Texas
Utilities will not pledge, mortgage, hypothecate or grant a
security interest in, or permit any mortgage, pledge, security
interest or other lien upon, any capital stock of any Subsidiary,
as defined below, now or hereafter owned by Texas Utilities to
secure any Indebtedness, as defined below, without also securing
the outstanding Debt Securities, and all other Indebtedness
entitled to be so secured, equally and ratably with the
Indebtedness and any other indebtedness similarly entitled to be
equally and ratably secured.
This restriction does not apply to, or prevent the creation
or any extension, renewal or refunding of:
(1) any mortgage, pledge, security interest, lien or
encumbrance upon any capital stock created at the time
it is acquired by Texas Utilities or within one year
after that time to secure the purchase price for the
capital stock;
(2) any mortgage, pledge, security interest, lien or
encumbrance upon any capital stock existing at the time
it is acquired by Texas Utilities, whether or not the
secured obligations are assumed by Texas Utilities; or
(3) any judgment, levy, execution, attachment or other
similar lien arising in connection with court
proceedings, provided that either:
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<PAGE>
(a) the execution or enforcement of the lien is
effectively stayed within 30 days after entry of
the corresponding judgment, or the corresponding
judgment has been discharged within such 30 day
period, and the claims secured thereby are being
contested in good faith by appropriate proceedings
timely commenced and diligently prosecuted;
(b) the payment of each lien is covered in full by
insurance and the insurance company has not denied
or contested coverage thereof; or
(c) so long as each such lien is adequately bonded,
any appropriate legal proceedings that may have
been duly initiated for the review of the
corresponding judgment, decree or order shall not
have been fully terminated or the period within
which these proceedings may be initiated shall not
have expired.
For purposes of the restriction described in the preceding
paragraph, "Indebtedness" means:
(1) all indebtedness created or assumed by Texas Utilities
for the repayment of money borrowed;
(2) all indebtedness for money borrowed secured by a lien
upon property owned by Texas Utilities and upon which
indebtedness for money borrowed Texas Utilities
customarily pays interest, although Texas Utilities has
not assumed or become liable for the payment of such
indebtedness for money borrowed; and
(3) all indebtedness of others for money borrowed which is
guaranteed as to payment of principal by Texas
Utilities or in effect guaranteed by Texas Utilities
through a contingent agreement to purchase such
indebtedness for money borrowed, but excluding from
this definition any other contingent obligation of
Texas Utilities in respect of indebtedness for money
borrowed or other obligations incurred by others.
"Subsidiary" means a corporation in which more than 50% of
the outstanding voting stock is owned, directly or indirectly, by
Texas Utilities and/or by one or more other Subsidiaries. For
the purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
Notwithstanding the foregoing, except as otherwise specified
in the officer's certificate setting out the terms of a
particular series of Debt Securities, Texas Utilities may,
without securing the Debt Securities, pledge, mortgage,
hypothecate or grant a security interest in, or permit any
mortgage, pledge, security interest or other lien, in addition to
liens expressly permitted as described in the preceding
paragraphs, upon, capital stock of any Subsidiary now or
hereafter owned by Texas Utilities to secure any Indebtedness,
which would otherwise be subject to the foregoing restriction, in
an aggregate amount which, together with all other such
Indebtedness, does not exceed 5% of Consolidated Capitalization.
For this purpose, "Consolidated Capitalization" means the sum of:
(1) Consolidated Shareholders' Equity;
(2) Consolidated Indebtedness for money borrowed, exclusive
of any that is due and payable within one year of the
date the sum is determined; and, without duplication
(3) any preference or preferred stock of Texas Utilities or
any Consolidated Subsidiary which is subject to
mandatory redemption or sinking fund provisions.
The term "Consolidated Shareholders' Equity" as used above
means the total Assets of Texas Utilities and its Consolidated
Subsidiaries less all liabilities of Texas Utilities and its
Consolidated Subsidiaries that would, in accordance with
generally accepted accounting principles in the United States, be
classified on a balance sheet as liabilities, including without
limitation:
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<PAGE>
(1) indebtedness secured by property of Texas Utilities or
any of its Consolidated Subsidiaries whether or not
Texas Utilities or such Consolidated Subsidiary is
liable for the payment thereof unless, in the case that
Texas Utilities or such Consolidated Subsidiary is not
so liable, such property has not been included among
the Assets of Texas Utilities or such Consolidated
Subsidiary on such balance sheet;
(2) deferred liabilities; and
(3) indebtedness of Texas Utilities or any of its
Consolidated Subsidiaries that is expressly
subordinated in right and priority of payment to other
liabilities of Texas Utilities or such Consolidated
Subsidiary.
As used in this definition, "liabilities" includes
preference or preferred stock of Texas Utilities or any
Consolidated Subsidiary only to the extent of any such preference
or preferred stock that is subject to mandatory redemption or
sinking fund provisions.
The term "Consolidated Subsidiary", as used above, means at
any date any Subsidiary the financial statements of which under
generally accepted accounting principles would be consolidated
with those of Texas Utilities in its consolidated financial
statements as of such date.
The "Assets" of any person means the whole or any part of
its business, property, assets, cash and receivables. The term
"Consolidated Indebtedness" means total indebtedness as shown on
the consolidated balance sheet of Texas Utilities and its
Consolidated Subsidiaries.
As of September 30, 1998, the Consolidated Capitalization of
Texas Utilities was approximately $24.8 billion.
ASSIGNMENT OF OBLIGATIONS
Texas Utilities may assign its obligations under the Debt
Securities and the Indenture to a wholly-owned subsidiary, provided
that no Event of Default, or event which with the passage of time
or the giving of required notice, or both, would become an Event
of Default, has occurred and is continuing. The subsidiary must
assume in writing Texas Utilities' payment obligations under the
Debt Securities and under the Indenture. Texas Utilities must
fully and unconditionally guarantee payment of the obligations
of the assuming subsidiary under the Debt Securities and the
Indenture.
If such an assignment is made, Texas Utilities will be
released and discharged from all its other obligations under the
Debt Securities and Indenture. Any covenants made by Texas
Utilities with respect to the Debt Securities would become solely
covenants of, and would relate only to, the subsidiary.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Under the terms of the Indenture, Texas Utilities may not
consolidate with or merge into any other entity or convey,
transfer or lease its properties and assets substantially as an
entirety to any entity, unless:
. the surviving or successor entity is organized and
validly existing under the laws of any domestic
jurisdiction and it expressly assumes Texas Utilities'
obligations on all Debt Securities and under the
Indenture;
. immediately after giving effect to the transaction, no
Event of Default and event which, after notice or lapse
of time or both, would become an Event of Default,
shall have occurred and be continuing; and
. Texas Utilities shall have delivered to the Trustee an
officer's certificate and an opinion of counsel as
provided in the Indenture.
The terms of the Indenture do not restrict Texas Utilities
in a merger in which Texas Utilities is the surviving entity.
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<PAGE>
EVENTS OF DEFAULT
"Event of Default" when used in the Indenture with respect
to any series of Debt Securities, means any of the following:
. failure to pay interest on any Debt Security for
30 days after it is due;
. failure to pay the principal of or any premium on
any Debt Security when due;
. failure to perform any other covenant in the
Indenture, other than a covenant that does not
relate to that series of Debt Securities, that
continues for 90 days after Texas Utilities
receives written notice from the Trustee, or Texas
Utilities and the Trustee receive a written notice
from 33% of the holders of the Debt Securities of
such series;
. certain events in bankruptcy, insolvency or
reorganization of Texas Utilities; or
. any other event of default included in any
supplemental indenture or officer's certificate
for a specific series of Debt Securities.
An Event of Default for a particular series of Debt
Securities does not necessarily constitute an Event of Default
for any other series of Debt Securities issued under the
Indenture. The Trustee may withhold notice to the holders of
Debt Securities of any default, except default in the payment of
principal or interest, if it considers such withholding of notice
to be in the interests of the holders.
REMEDIES
If an Event of Default with respect to fewer than all the
series of Debt Securities occurs and continues, the Trustee or
the holders of at least 33% in aggregate principal amount of all
affected Debt Securities may declare the entire principal amount
of all the Debt Securities of such series, together with accrued
interest, to be due and payable immediately. However, if the
Event of Default is applicable to all outstanding Debt Securities
under the Indenture, only the Trustee or holders of at least 33%
in aggregate principal amount of all outstanding Debt Securities
of all series, voting as one class, and not the holders of any
one series, may make such a declaration of acceleration.
At any time after a declaration of acceleration with respect
to the Debt Securities of any series has been made and before a
judgment or decree for payment of the money due has been
obtained, the Event of Default giving rise to such declaration of
acceleration will be considered waived, and such declaration and
its consequences will be considered rescinded and annulled, if:
. Texas Utilities has paid or deposited with the Trustee
a sum sufficient to pay:
(1) all overdue interest on all Debt Securities of the
series;
(2) the principal of and premium, if any, on any Debt
Securities of the series which have otherwise
become due and interest that is currently due;
(3) interest on overdue interest; and
(4) all amounts due to the Trustee under the
Indenture.
. any other Event of Default with respect to the Debt
Securities of that series has been cured or waived as
provided in the Indenture.
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There is no automatic acceleration, even in the event of
bankruptcy, insolvency or reorganization of Texas Utilities.
Other than its duties in case of an Event of Default, the
Trustee is not obligated to exercise any of its rights or powers
under the Indenture at the request, order or direction of any of
the holders, unless the holders offer the Trustee a reasonable
indemnity. If they provide this reasonable indemnity, the
holders of a majority in principal amount of any series of Debt
Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any power conferred upon the Trustee.
However, if the Event of Default relates to more than one series,
only the holders of a majority in aggregate principal amount of
all affected series will have the right to give this direction.
The Trustee is not obligated to comply with directions that
conflict with law or other provisions of the Indenture.
No holder of Debt Securities of any series will have any
right to institute any proceeding under the Indenture, or any
remedy under the Indenture, unless:
. the holder has previously given to the Trustee written
notice of a continuing Event of Default;
. the holders of a majority in aggregate principal amount
of the outstanding Debt Securities of all series in
respect of which an Event of Default shall have
occurred and be continuing have made a written request
to the Trustee, and have offered reasonable indemnity
to the Trustee to institute proceedings; and
. the Trustee has failed to institute any proceeding for
60 days after notice.
However, such limitations do not apply to a suit by a holder of a
Debt Security for payment of the principal, premium, if any, or
interest on a Debt Security on or after the applicable due date.
Texas Utilities will provide to the Trustee an annual
statement by an appropriate officer as to Texas Utilities'
compliance with all conditions and covenants under the Indenture.
MODIFICATION AND WAIVER
Without the consent of any holder of Debt Securities, Texas
Utilities and the Trustee may enter into one or more supplemental
indentures for any of the following purposes:
. to evidence the assumption by any permitted
successor of the covenants of Texas Utilities
in the Indenture and in the Debt Securities;
. to add additional covenants of Texas
Utilities or to surrender any right or power
of Texas Utilities under the Indenture;
. to add additional Events of Default;
. to change or eliminate or add any provision
to the Indenture; provided, however, if the
change will adversely affect the interests of
the holders of Debt Securities of any series
in any material respect, such change,
elimination or addition will become effective
only:
(1) when the consent of the holders of
Debt Securities of such series has
been obtained in accordance with
the Indenture; or
(2) when no Debt Securities of the
affected series remain outstanding
under the Indenture;
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. to provide collateral security for all but
not part of the Debt Securities;
. to establish the form or terms of Debt
Securities of any other series as permitted
by the Indenture;
. to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto;
. to evidence and provide for the acceptance of
appointment of a successor trustee;
. to provide for the procedures required for
use of a noncertificated system of
registration for the Debt Securities of all
or any series;
. to change any place where principal, premium,
if any, and interest shall be payable, Debt
Securities may be surrendered for
registration of transfer or exchange and
notices to Texas Utilities may be served; or
. to cure any ambiguity or inconsistency or to make any
other provisions with respect to matters and questions
arising under the Indenture; provided that such action
shall not adversely affect the interests of the holders
of Debt Securities of any series in any material
respect.
The holders of at least a majority in aggregate principal
amount of the Debt Securities of all series then outstanding may
waive compliance by Texas Utilities with certain restrictive
provisions of the Indenture. The holders of not less than a
majority in principal amount of the outstanding Debt Securities
of any series may waive any past default under the Indenture with
respect to that series, except a default in the payment of
principal, premium, if any, or interest and certain covenants and
provisions of the Indenture that cannot be modified or be amended
without the consent of the holder of each outstanding Debt
Security of the series affected.
If the Trust Indenture Act of 1939, as amended, is amended
after the date of the Indenture in such a way as to require
changes to the Indenture, the Indenture will be deemed to be
amended so as to conform to such amendment of Trust Indenture Act
of 1939, as amended. Texas Utilities and the Trustee may,
without the consent of any holders, enter into one or more
supplemental indentures to evidence such an amendment.
The consent of the holders of a majority in aggregate
principal amount of the Debt Securities of all series then
outstanding is required for all other modifications to the
Indenture. However, if less than all of the series of Debt
Securities outstanding are directly affected by a proposed
supplemental indenture, then the consent only of the holders of a
majority in aggregate principal amount of all series that are
directly affected will be required. No such amendment or
modification may:
. change the stated maturity of the principal
of, or any installment of principal of or
interest on, any Debt Security, or reduce the
principal amount of any Debt Security or its
rate of interest or change the method of
calculating such interest rate or reduce any
premium payable upon redemption, or change
the currency in which payments are made, or
impair the right to institute suit for the
enforcement of any payment on or after the
stated maturity of any Debt Security, without
the consent of the holder;
. reduce the percentage in principal amount of
the outstanding Debt Securities of any series
whose consent is required for any
supplemental indenture or any waiver of
compliance with a provision of the Indenture
or any default thereunder and its
consequences, or reduce the requirements for
quorum or voting, without the consent of all
the holders of the series; or
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. modify certain of the provisions of the
Indenture relating to supplemental
indentures, waivers of certain covenants and
waivers of past defaults with respect to the
Debt Securities of any series, without the
consent of the holder of each outstanding
Debt Security affected thereby.
A supplemental indenture which changes the Indenture solely
for the benefit of one or more particular series of Debt
Securities, or modifies the rights of the holders of Debt
Securities of one or more series, will not affect the rights
under the Indenture of the holders of the Debt Securities of any
other series.
The Indenture provides that Debt Securities owned by Texas
Utilities or anyone else required to make payment on the Debt
Securities shall be disregarded and considered not to be
outstanding in determining whether the required holders have
given a request or consent.
Texas Utilities may fix in advance a record date to
determine the required number of holders entitled to give any
request, demand, authorization, direction, notice, consent,
waiver or other such act of the holders, but Texas Utilities
shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice,
consent, waiver or other act of the holders may be given before
or after such record date, but only the holders of record at the
close of business on that record date will be considered holders
for the purposes of determining whether holders of the required
percentage of the outstanding Debt Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act of the holders.
For that purpose, the outstanding Debt Securities shall be
computed as of the record date. Any request, demand,
authorization, direction, notice, consent, election, waiver or
other act of a holder shall bind every future holder of the same
Debt Securities and the holder of every Debt Security issued upon
the registration of transfer of or in exchange of these Debt
Securities. A transferee will be bound by acts of the Trustee or
Texas Utilities taken in reliance thereon, whether or not
notation of such action is made upon such Debt Security.
RESIGNATION OF A TRUSTEE
A Trustee may resign at any time by giving written notice to
Texas Utilities or may be removed at any time by act of the
holders of a majority in principal amount of all series of Debt
Securities then outstanding delivered to the Trustee and Texas
Utilities. No resignation or removal of a Trustee and no
appointment of a successor trustee will effective until the
acceptance of appointment by a successor trustee. So long as no
Event of Default or event which, after notice or lapse of time,
or both, would become an Event of Default has occurred and is
continuing and except with respect to a Trustee appointed by act
of the holders, if Texas Utilities has delivered to the Trustee a
resolution of its Board of Directors appointing a successor
trustee and such successor has accepted such appointment in
accordance with the terms of the respective Indenture, the
Trustee will be deemed to have resigned and the successor will be
deemed to have been appointed as trustee in accordance with such
Indenture.
NOTICES
Notices to holders of Debt Securities will be given by mail
to the addresses of such holders as they may appear in the
security register therefor.
TITLE
Texas Utilities, the Trustee, and any agent of Texas
Utilities or the Trustee, may treat the person in whose name Debt
Securities are registered as the absolute owner thereof, whether
or not such Debt Securities may be overdue, for the purpose of
making payments and for all other purposes irrespective of notice
to the contrary.
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GOVERNING LAW
Each Indenture and the Debt Securities will be governed by,
and construed in accordance with, the laws of the State of New
York.
REGARDING THE TRUSTEE
The Trustee will be The Bank of New York. In addition to
acting as Trustee, The Bank of New York acts, and may act, as
trustee under various indentures and trusts of Texas Utilities
and its affiliates.
DESCRIPTION OF TXU CAPITAL'S PREFERRED TRUST SECURITIES AND
COMMON TRUST SECURITIES
TXU Capital will issue Preferred Trust Securities and Common
Trust Securities under a Trust Agreement. The Preferred Trust
Securities will represent preferred undivided beneficial
interests in the assets of TXU Capital and will entitle holders
thereof to a preference over the Common Trust Securities with
respect to distributions and amounts payable on redemption or
liquidation. Selected provisions of the Trust Agreement are
summarized below. This summary is not complete. The form of
Trust Agreement was filed as an exhibit to the registration
statement and you should read the Trust Agreement for provisions
that may be important to you. The Trust Agreement will be
qualified as an indenture under the Trust Indenture Act of 1939,
as amended. You should also refer to the Trust Indenture Act of
1939, as amended, for provisions that apply to the Preferred
Trust Securities. Wherever particular defined terms of the Trust
Agreement are referred to, such defined terms are incorporated
herein by reference.
The Preferred Trust Securities and Common Trust Securities
issued by TXU Capital will be substantially the same except that,
if TXU Capital fails to make required payments, the rights of the
holders of the Common Trust Securities to payment of
distributions and upon liquidation or redemption will be
subordinated to the rights of the holders of the Preferred Trust
Securities. Holders of the Common Trust Securities and the
Preferred Trust Securities may both vote to appoint, remove or
replace any of trustees of TXU Capital. All of the Common Trust
Securities of TXU Capital will be owned by Texas Utilities.
Texas Utilities will fully and unconditionally guarantee
payments due on the Preferred Trust Securities through a
combination of the following:
. Texas Utilities' obligations under the Junior
Subordinated Debentures;
. The rights of holders of Preferred Trust Securities to
enforce those obligations;
. Texas Utilities' agreement to pay the expenses of TXU
Capital; or
. Texas Utilities' guarantee of payments due on the
Preferred Trust Securities to the extent of TXU
Capital's assets.
TXU Capital will use the proceeds from the sale of the
Preferred Trust Securities and Common Trust Securities to
purchase Junior Subordinated Debentures from Texas Utilities.
The Junior Subordinated Debentures will be held in trust for the
benefit of holders of the Preferred Trust Securities and Common
Trust Securities.
A prospectus supplement relating to the Preferred Trust
Securities will include specific terms of those securities and of
the Junior Subordinated Debentures. For a description of some
specific terms that will affect both the Preferred Trust
Securities and the Junior Subordinated Debentures and your rights
under each see DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES,
below.
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DISTRIBUTIONS
The only income of TXU Capital available for distribution to
the holders of Preferred Trust Securities will be payments on the
Junior Subordinated Debentures. If Texas Utilities does not make
interest payments on the Junior Subordinated Debentures, TXU
Capital will not have funds available to pay distributions on
Preferred Trust Securities. The payment of distributions, if and
to the extent TXU Capital has sufficient funds available for the
payment of such distributions, is guaranteed on a limited basis
by Texas Utilities.
So long as there is no default in the payment of interest on
the Junior Subordinated Debentures, Texas Utilities may extend
the interest payment period from time to time on the Junior
Subordinated Debentures for one or more periods. As a
consequence, distributions on Preferred Trust Securities would be
deferred during any such period. Interest would, however,
continue to accrue. If Texas Utilities extends the interest
period or is in default under a Guarantee or with respect to
payments on the Junior Subordinated Debentures, Texas Utilities
may not:
. declare or pay any dividend or distribution on its
capital stock, other than dividends paid in shares of
common stock of Texas Utilities;
. redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock;
. redeem any indebtedness that is equal in right of
payment with the Junior Subordinated Debentures; or
. make any guarantee payments with respect to any of the
above.
Any extension period with respect to payment of interest on
the Junior Subordinated Debentures, or any extended interest
payment period in respect of other securities issued under the
Subordinated Indenture or on any similar securities, will apply
to all securities of the same type. Such extensions will also
apply to distributions on Preferred Trust Securities and Common
Securities and all other securities with terms substantially the
same as Preferred Trust Securities and Common Securities. Before
an extension period ends, Texas Utilities may further extend the
interest payment period. No extension period as further extended
may exceed 20 consecutive quarters. After any extension period
and the payment of all amounts then due, Texas Utilities may
select a new extended interest payment period. No interest
period may be extended beyond the maturity of the Junior
Subordinated Debentures.
REDEMPTION OF PREFERRED TRUST SECURITIES AND COMMON
SECURITIES
Whenever Junior Subordinated Debentures are repaid, whether
at maturity or earlier redemption, the proceeds shall be applied
to redeem a like amount of Preferred Trust Securities and Common
Trust Securities. Holders of Junior Subordinated Debentures will
be given not less than 30 nor more than 60 days' notice of any
redemption.
REDEMPTION PROCEDURES
Preferred Trust Securities shall be redeemed at the
redemption price plus accrued and unpaid distributions with the
proceeds from the contemporaneous redemption of Junior
Subordinated Debentures. Redemptions of the Preferred Trust
Securities shall be made on a redemption date only if TXU Capital
has funds available for the payment of the redemption price plus
accrued and unpaid distributions.
Notice of redemption of Preferred Trust Securities will be
irrevocable. On or before the redemption date, TXU Capital will
irrevocably deposit with the paying agent for Preferred Trust
Securities sufficient funds and will give the paying agent
irrevocable instructions and authority to pay the redemption
price plus accrued and unpaid distributions to the holders upon
surrender of their Preferred Trust Securities. Distributions
payable on or before a redemption date shall be payable to the
holders on the record date for the distribution payment. If
notice is given and funds are deposited as required, then on the
redemption date all rights of holders of the Preferred Trust
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Securities called for redemption will cease, except the right of
the holders to receive the redemption price plus accrued and
unpaid distributions, and the Preferred Trust Securities will
cease to be outstanding. No interest will accrue on amounts
payable on the redemption date. In the event that any date fixed
for redemption of Preferred Trust Securities is not a business
day, then payment will be made on the next business day. No
interest will be payable because of any such delay. If payment
of Preferred Trust Securities called for redemption is improperly
withheld or refused and not paid either by TXU Capital or by
Texas Utilities pursuant to the Guarantee, distributions on such
Preferred Trust Securities will continue to accrue to the date of
payment. That date will be considered the date fixed for
redemption for purposes of calculating the redemption price plus
accrued and unpaid distributions.
Subject to applicable law, including United States federal
securities law, Texas Utilities may purchase outstanding
Preferred Trust Securities by tender, in the open market or by
private agreement.
If Preferred Trust Securities are partially redeemed on a
redemption date, a corresponding percentage of the Common Trust
Securities will be redeemed. The particular Preferred Trust
Securities to be redeemed shall be selected not more than 60 days
prior to the redemption date by the Property Trustee by such
method as the Property Trustee shall deem fair, taking into
account the denominations in which they were issued. The
Property Trustee shall promptly notify the Preferred Trust
Security registrar in writing of the Preferred Trust Securities
selected for redemption and, where applicable, the partial amount
to be redeemed.
SUBORDINATION OF COMMON TRUST SECURITIES
Payment of distributions on, and the redemption price, plus
accrued and unpaid distributions, of, the Preferred Trust
Securities and Common Trust Securities shall be made pro rata
based on the liquidation preference amount. However, if on any
distribution payment date or redemption date an event of default
under the Trust Agreement has occurred and is continuing, no
payment on any Common Trust Security shall be made until all
payments due on the Preferred Trust Securities have been made.
In that case, funds available to the Property Trustee shall first
be applied to the payment in full of all distributions on, or the
redemption price plus accrued and unpaid distributions, of,
Preferred Trust Securities then due and payable.
If an event of default under the Trust Agreement results
from an event of default under the Subordinated Indenture, the
holder of Common Trust Securities cannot take action with respect
to the Trust Agreement default until the effect of all such
defaults with respect to Preferred Trust Securities has been
cured, waived or otherwise eliminated. Until the event of
default under the Trust Agreement with respect to Preferred Trust
Securities has been cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the holders of
Preferred Trust Securities and not the holders of the Common
Trust Securities. Only holders of Preferred Trust Securities
will have the right to direct the Property Trustee to act on
their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
TXU Capital shall dissolve and shall be liquidated by the
Property Trustee on the first to occur of:
. the expiration of the term of TXU Capital;
. the bankruptcy, dissolution or liquidation of Texas
Utilities;
. redemption of all of the Preferred Trust Securities;
. the entry of an order for dissolution of TXU Capital by
a court of competent jurisdiction; and
. at any time, at the election of Texas Utilities.
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If an early dissolution occurs because of bankruptcy,
dissolution or liquidation of Texas Utilities, TXU Capital shall
be liquidated by the Property Trustee as expeditiously as the
Property Trustee determines to be appropriate. The Property
Trustee will provide for the satisfaction of liabilities of
creditors, if any, and distribute to each holder of the Preferred
Trust Securities and Common Trust Securities a proportionate
amount of Junior Subordinated Debentures. If a distribution of
Junior Subordinated Debentures is determined by the Property
Trustee not to be practical, holders will be entitled to receive,
out of the assets of TXU Capital after adequate provision for the
satisfaction of liabilities of creditors, if any, an amount equal
to the aggregate liquidation preference of the Preferred Trust
Securities plus accrued and unpaid distributions thereon to the
date of payment. If this liquidation distribution can be paid
only in part because TXU Capital has insufficient assets
available to pay in full the aggregate liquidation distribution,
then the amounts payable directly by TXU Capital on the Preferred
Trust Securities shall be paid on a pro rata basis. Texas
Utilities, as holder of the Common Trust Securities, will be
entitled to receive distributions upon any such dissolution pro
rata with the holders of the Preferred Trust Securities, except
that if an event of default has occurred and is continuing under
the Trust Agreement, the Preferred Trust Securities shall have a
preference over the Common Trust Securities.
EVENTS OF DEFAULT; NOTICE
Any one of the following events will be an event of default
under the Trust Agreement whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body:
. the occurrence of an Event of Default as described in
the Subordinated Indenture; or
. default by TXU Capital in the payment of any
distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
. default by TXU Capital in the payment of any redemption
price, plus accrued and unpaid distributions, of any
Preferred Trust Security or Common Trust Security when
it becomes due and payable; or
. default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in
the Trust Agreement which is not dealt with above, and
the continuation of such default or breach for a period
of 60 days after notice to TXU Capital by the holders
of Preferred Trust Securities having at least 10% of
the total liquidation preference amount of the
outstanding Securities; or
. the occurrence of certain events of bankruptcy or
insolvency with respect to TXU Capital.
Within ninety business days after the occurrence of any
event of default, the Property Trustee shall transmit to the
holders of Preferred Trust Securities and Common Trust Securities
and Texas Utilities notice of any such default actually known to
the Property Trustee, unless such default shall have been cured
or waived.
A holder of Preferred Trust Securities may directly
institute a proceeding to enforce payment when due directly to
the holder of the Preferred Trust Securities of the principal of
or interest on Junior Subordinated Debentures having a principal
amount equal to the aggregate liquidation preference amount of
the holder's Preferred Trust Securities. The holders of
Preferred Trust Securities have no other rights to exercise
directly any other remedies available to the holder of the Junior
Subordinated Debentures unless the Trustees under the Trust
Agreement fail to do so.
Unless an event of default has occurred and is continuing,
the holder of the Common Trust Securities may remove the Property
Trustee at any time. If an event of default has occurred and is
continuing, the holders of a majority of the liquidation
preference of Preferred Trust Securities may remove the Property
Trustee. Any resignation or removal of the Property Trustee will
take effect only on the acceptance of appointment by the
successor Property Trustee.
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If a default has occurred under the Subordinated Indenture
but has not become an event of default solely because of the
requirement that time lapse or notice be given, the Preferred
Trust Securities shall have a preference over the Common Trust
Securities upon dissolution of TXU Capital.
MERGER OR CONSOLIDATION OF THE PROPERTY TRUSTEE OR THE
DELAWARE TRUSTEE
If the Property Trustee or the Delaware Trustee merge,
consolidate with another entity, or if any entity succeeds to all
or substantially all the corporate trust business of the Property
Trustee or the Delaware Trustee, the successor or surviving
company shall be the successor to the Property Trustee or the
Delaware Trustee under the Trust Agreement, so long as it is
otherwise qualified and eligible.
VOTING RIGHTS
Except with respect to amendments to the Trust Agreement and
amendments and assignment of the Guarantee, the holders of
Preferred Trust Securities will have no voting rights not
otherwise required by law or the Trust Agreement.
While Junior Subordinated Debentures are held by the
Property Trustee, the Property Trustee shall not:
. direct the time, method and place to conduct any
proceeding for any remedy available to the Debenture
Trustee, or to execute any trust or power conferred on
the Debenture Trustee with respect to the Junior
Subordinated Debentures;
. waive any past default under the Subordinated
Indenture;
. exercise any right to rescind or annul a declaration
that the principal of all the Junior Subordinated
Debentures shall be due and payable; or
. consent to any amendment, modification or termination
of the Subordinated Indenture or the Junior
Subordinated Debentures, where such consent shall be
required;
without, in each case, obtaining the prior approval of the
holders of Preferred Trust Securities having at least 66 2/3% of
the liquidation preference amount of the outstanding Preferred
Trust Securities. Where a consent of each holder of Junior
Subordinated Debentures affected is required, no consent shall be
given by the Property Trustee without the prior consent of each
holder of the Preferred Trust Securities. The Property Trustee
shall not revoke any action previously authorized or approved by
a vote of the holders of Preferred Trust Securities. If the
Property Trustee fails to enforce its rights under the Junior
Subordinated Debentures or the Trust Agreement, to the fullest
extent permitted by law, a holder of the Preferred Trust
Securities may institute a legal proceeding directly against
Texas Utilities to enforce the Property Trustee's rights under
the Junior Subordinated Debentures or the Trust Agreement without
first instituting any legal proceeding against the Property
Trustee or any one else. The Property Trustee shall notify all
holders of Preferred Trust Securities of any notice of default
received from the Debenture Trustee. The Property Trustee shall
not take any action approved by the consent of the holders
without an opinion of counsel experienced in such matters to the
effect that TXU Capital will not be classified as an association
taxable as a corporation for United States federal income tax
purposes on account of such action.
Holders of Preferred Trust Securities may give any required
approval at a meeting convened for such purpose or by written
consent. The Administrative Trustees will give notice of any
meeting at which holders of Preferred Trust Securities are
entitled to vote, or of any matter upon which action by written
consent of such holders is to be taken.
No vote or consent of the holders of Preferred Trust
Securities will be required for TXU Capital to redeem and cancel
Preferred Trust Securities in accordance with the Trust
Agreement.
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Notwithstanding that holders of Preferred Trust Securities
are entitled to vote or consent under any of the circumstances
described above, any of Preferred Trust Securities that are owned
by Texas Utilities, any Trustee under the Trust Agreement or any
affiliate of Texas Utilities, shall be treated as if they were
not outstanding, for purposes of such vote or consent.
Holders of Preferred Trust Securities will have no rights to
appoint or remove the Administrative Trustees of TXU Capital, who
may be appointed, removed or replaced solely by Texas Utilities
as the holder of the Common Trust Securities.
AMENDMENTS
The Trust Agreement may be amended from time to time by TXU
Capital and Texas Utilities, without the consent of any holders
of Preferred Trust Securities and Common Trust Securities:
. to cure any ambiguity, correct inconsistent provisions,
make any other provisions with respect to matters or
questions arising under the Trust Agreement that do not
conflict with the other provisions of the Trust
Agreement or any amendments of the Trust Agreement; or
. to modify, eliminate or add to any provisions of the
Trust Agreement to such extent as shall be necessary to
ensure that TXU Capital will not be classified for
United States federal income tax purposes as an
association taxable as a corporation at any time that
any Preferred Trust Securities and Common Trust
Securities are outstanding or to ensure TXU Capital's
exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended.
No such amendment may materially adversely affect interests of
any holder of Preferred Trust Securities and Common Trust
Securities. Any such amendments of the Trust Agreement shall
become effective when notice of the amendment is given to the
holders of Preferred Trust Securities and Common Trust
Securities.
Except as provided below, any provision of the Trust
Agreement may be amended by the Trustees and Texas Utilities
with:
. the consent of holders of Preferred Trust Securities
and Common Trust Securities representing not less than
a majority in aggregate liquidation preference amount
of such Preferred Trust Securities and Common Trust
Securities then outstanding; and
. receipt by the Trustees of an opinion of counsel to the
effect that such amendment or the exercise of any power
granted to the Trustees in accordance with such
amendment will not cause TXU Capital to be classified
for federal income tax purposes as an association
taxable as a corporation or affect TXU Capital's
exemption from status of an "investment company" under
the Investment Company Act of 1940, as amended.
Each holder of Preferred Trust Securities or Common Trust
Securities must have consented to any amendment to the Trust
Agreement that:
. changes the amount or timing of any distribution with
respect to Preferred Trust Securities or Common Trust
Securities or otherwise adversely affects the amount of
any distribution required to be made in respect of
Preferred Trust Securities and Common Trust Securities
as of a specified date; or
. restricts the right of a holder of Preferred Trust
Securities and Common Trust Securities to institute
suit for the enforcement of any such payment on or
after such date.
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CO-TRUSTEES AND SEPARATE TRUSTEE
If no event of default under the Trust Agreement has
occurred and is continuing, for the purpose of meeting the legal
requirements of the Trust Indenture Act of 1939, as amended, or
of any jurisdiction in which any part of the trust property of
TXU Capital may at the time be located, Texas Utilities, as
depositor, and the Property Trustee may appoint one or more
persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part
of the trust property, or to act as separate trustee of any trust
property. Upon the written request of the Property Trustee,
Texas Utilities, as depositor, shall for such purpose join with
the Property Trustee in the execution, delivery and performance
of all instruments necessary or proper to make such appointment.
The appointment will vest in such person or persons in such
capacity, any property, title, right or power deemed necessary or
desirable, subject to the provisions of the Trust Agreement. If
Texas Utilities, as depositor, does not join in such appointment
within 15 days after the receipt by it of a request so to do, or
in case an event of default under the Subordinated Indenture has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
FORM, EXCHANGE, AND TRANSFER
Preferred Trust Securities may be exchanged for other
Preferred Trust Securities in any authorized denomination and of
like tenor and aggregate liquidation preference.
Subject to the terms of the Trust Agreement, Preferred Trust
Securities may be presented for exchange as provided above or for
registration of transfer, duly endorsed or accompanied by a duly
executed instrument of transfer, at the office of the Preferred
Trust Security registrar or at the office of any transfer agent
designated by Texas Utilities for such purpose. Texas Utilities
may designate itself the Preferred Trust Security registrar. No
service charge will be made for any registration of transfer or
exchange of Preferred Trust Securities, but Texas Utilities may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the transfer. A
transfer or exchange will be made when the transfer agent is
satisfied with the documents of title and identity of the person
making the request. Texas Utilities may at any time designate
additional transfer agents or rescind the designation of any
transfer agent or approve a change in the office through which
any transfer agent acts, except that Texas Utilities will be
required to maintain a transfer agent in each place of payment
for Preferred Trust Securities.
TXU Capital will not be required to (1) issue, register the
transfer of, or exchange any Preferred Trust Securities during a
period beginning at the opening of business 15 calendar days
before the day of mailing of a notice of redemption of any
Preferred Trust Securities called for redemption and ending at
the close of business on the day of such mailing or (2) register
the transfer of or exchange any Preferred Trust Securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any Preferred Trust Securities being
redeemed in part.
REGISTRAR AND TRANSFER AGENT
Texas Utilities Services Inc. will act as registrar and
transfer agent for the Preferred Trust Securities.
Registration of transfers of the Preferred Trust Securities
will be made without charge by TXU Capital, unless tax or other
governmental charges are imposed. In that case, the holder
requesting transfer must pay the tax or charges and give such
indemnity as TXU Capital or Texas Utilities may require.
CONCERNING THE PROPERTY TRUSTEE
The Property Trustee acts as trustee under other indentures
with respect to Texas Utilities' obligations. Texas Utilities
maintains deposit accounts and credit and liquidity facilities
and conducts other banking transactions with the Property Trustee
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in the ordinary course of their businesses. The Property Trustee
also acts as the Guarantee Trustee under the Guarantee and the
Debenture Trustee under the Subordinated Indenture.
DUTIES OF THE TRUSTEES
The Delaware Trustee will act as the resident trustee in the
State of Delaware and will have no other significant duties. The
Property Trustee will hold the Junior Subordinated Debentures on
behalf of TXU Capital and will maintain a payment account with
respect to the Preferred Trust Securities and Common Trust
Securities, and will also act as trustee under the Trust
Agreement for the purposes of the Trust Indenture Act of 1939, as
amended.
The Administrative Trustees of TXU Capital are authorized
and directed to conduct the affairs of TXU Capital and to operate
TXU Capital so that TXU Capital will not be deemed to be an
"investment company" required to be registered under the 1940 Act
or taxed as a corporation for United States federal income tax
purposes and so that the Junior Subordinated Debentures will be
treated as indebtedness of Texas Utilities for United States
federal income tax purposes. In this regard, the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust or the Trust Agreement,
that the Administrative Trustees determine in their discretion to
be necessary or desirable for such purposes, as long as the
action does not materially adversely affect the interests of the
holders of the Preferred Trust Securities.
MISCELLANEOUS
Holders of the Preferred Trust Securities have no preemptive
or similar rights.
DESCRIPTION OF THE GUARANTEE
Selected provisions of the Guarantee that Texas Utilities
will execute and deliver for the benefit of the holders of the
Preferred Trust Securities are summarized below. The summary is
not complete. The form of Guarantee was filed as an exhibit to
the registration statement and you should read the Guarantee for
provisions that may be important to you. The Guarantee will be
qualified as an indenture under the Trust Indenture Act of 1939,
as amended. You should refer to the Trust Indenture Act of 1939,
as amended, for provisions that apply to the Guarantee. Whenever
particular defined terms of the Guarantee are referred to, such
defined terms are incorporated herein by reference.
The Bank of New York will act as Guarantee Trustee under the
Guarantee. The Guarantee Trustee will hold the Guarantee for the
benefit of the holders of the Preferred Trust Securities.
GENERAL TERMS OF THE GUARANTEE
Texas Utilities will fully and unconditionally agree to make
the guarantee payments listed below in full to the holders of the
Preferred Trust Securities if they are not made by TXU Capital,
as and when due, regardless of any defense, right of set-off or
counterclaim that Texas Utilities may have or assert. The
following payments will be subject to the Guarantee (without
duplication):
. any accrued and unpaid distributions required to be
paid on Preferred Trust Securities, to the extent TXU
Capital has funds available therefor;
. the redemption price, plus all accrued and unpaid
distributions, for any Preferred Trust Securities
called for redemption by TXU Capital, to the extent TXU
Capital has funds available therefor; and
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. upon a voluntary or involuntary dissolution, winding-up
or termination of TXU Capital except in connection with
the distribution of Junior Subordinated Debentures to
the holders in exchange for Preferred Trust Securities
as provided in the Trust Agreement or upon a redemption
of all of the Preferred Trust Securities upon maturity
or redemption of the Junior Subordinated Debentures as
provided in the Trust Agreement, the lesser of:
(1) the aggregate of the liquidation preference and
all accrued and unpaid distributions on Preferred
Trust Securities to the date of payment; and
(2) the amount of assets of TXU Capital remaining
available for distribution to holders of Preferred
Trust Securities in liquidation of TXU Capital.
Texas Utilities' obligation to make a guarantee payment may be
satisfied by direct payment of the required amounts by Texas
Utilities to the holders of Preferred Trust Securities or by
causing TXU Capital to pay such amounts to those holders.
The Guarantee will be a guarantee with respect to the
Preferred Trust Securities, but will not apply to any payment of
distributions if and to the extent that TXU Capital does not have
funds available to make such payments or to any collection of
payment.
If Texas Utilities does not make interest payments on the
Junior Subordinated Debentures held by TXU Capital, TXU Capital
will not have funds available to pay distributions on the
Preferred Trust Securities. The Guarantee will rank subordinate
and junior in right of payment to all liabilities of Texas
Utilities except liabilities that are equal in right of payment
by their terms.
Texas Utilities will enter into an Agreement as to Expenses
and Liabilities with TXU Capital, to provide funds to TXU Capital
as needed to pay obligations of TXU Capital to parties other than
holders of Preferred Trust Securities. The Junior Subordinated
Debentures and the Guarantee, together with the obligations of
Texas Utilities with respect to the Preferred Trust Securities
under the Subordinated Indenture, the Trust Agreement, the
Guarantee and the Agreement as to Expenses and Liabilities,
constitute a full and unconditional guarantee of the Preferred
Trust Securities by Texas Utilities. No single document standing
alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of
providing a full and unconditional guarantee by Texas Utilities
of the Preferred Trust Securities.
AMENDMENTS AND ASSIGNMENT
No vote is required for changes to the Trust Agreement that
do not materially adversely affect the rights of holders of
Preferred Trust Securities. Other terms of the Guarantee may be
changed only with the prior approval of the holders of the
Preferred Trust Securities having at least 66 2/3% of the
liquidation preference amount of the outstanding Preferred Trust
Securities. All guarantees and agreements contained in the
Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of Texas Utilities and shall inure to the
benefit of the holders of the Preferred Trust Securities then
outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur if Texas
Utilities fails to perform any of its payment obligations under
the Guarantee. The holders of the Preferred Trust Securities
having a majority of the liquidation preference of the Preferred
Trust Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Guarantee Trustee under the Guarantee or to direct the
exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee.
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If the Guarantee Trustee fails to enforce the Guarantee, any
holder of the Preferred Trust Securities may enforce the
Guarantee, or institute a legal proceeding directly against Texas
Utilities to enforce the Guarantee Trustee's rights under the
Guarantee without first instituting a legal proceeding against
TXU Capital, the Guarantee Trustee or anyone else.
Texas Utilities will be required to provide an annual
statement to the Guarantee Trustee about Texas Utilities'
performance of certain of its obligations under the Guarantee and
any default in its performance of the obligations.
Texas Utilities will also be required to file annually with
the Guarantee Trustee an officer's certificate as to Texas
Utilities' compliance with all conditions under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee will undertake to perform only those
duties specifically set forth in the Guarantee until a default
occurs. After a default under the Guarantee, the Guarantee
Trustee must exercise the same degree of care in its duties as a
prudent individual would exercise in the conduct of his or her
own affairs. Otherwise, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by the
Guarantee at the request of any holder of the Preferred Trust
Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that it might incur.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and
effect upon:
. full payment of the redemption price, plus accrued and
unpaid distributions, for all the Preferred Trust
Securities;
. the distribution of Junior Subordinated Debentures to
holders of the Preferred Trust Securities in exchange
for all of the Preferred Trust Securities; or
. full payment of the amounts payable upon liquidation of
TXU Capital.
The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of
Preferred Trust Securities must restore payment of any sums paid
under the Preferred Trust Securities or the Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will be an unsecured obligation of Texas
Utilities and will rank:
. subordinate and junior in right of payment to all
liabilities of Texas Utilities, except any liabilities
that are equal in right of payment by their terms;
. equal in right of payment with the most senior
preferred or preference stock that may be issued by
Texas Utilities and with any guarantee that may be
entered into by Texas Utilities in respect of any
preferred or preference stock of any affiliate of Texas
Utilities; and
. senior to Texas Utilities' common stock.
The Trust Agreement provides that by accepting Preferred
Trust Securities, a holder agrees to the subordination provisions
and other terms of the Guarantee.
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The Guarantee will be a guarantee of payment and not of
collection, that is, the guaranteed party may institute a legal
proceeding directly against Texas Utilities to enforce its rights
under the Guarantee without first instituting a legal proceeding
against anyone else.
GOVERNING LAW
The Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures which the Property
Trustee will hold on behalf of TXU Capital as trust assets will
be subordinated obligations of Texas Utilities. The Junior
Subordinated Debentures will be issued under the Subordinated
Indenture between Texas Utilities and The Bank of New York, as
Debenture Trustee with respect to the Junior Subordinated
Debentures.
Selected provisions of the Subordinated Indenture are
summarized below. This summary is not complete. The form of the
Subordinated Indenture has been filed as an exhibit to the
registration statement, and you should read the Subordinated
Indenture for provisions that may be important to you. The
Subordinated Indenture will be qualified under the Trust
Indenture Act of 1939, as amended. You should refer to the Trust
Indenture Act for provisions that apply to the Junior
Subordinated Debenture. Whenever particular provisions or
defined terms in a Subordinated Indenture are referred to under
the DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES, such
provisions or defined terms are incorporated by reference herein.
The Subordinated Indenture provides for the issuance of
subordinated debt other than the Junior Subordinated Debentures
in an unlimited amount from time to time. The Junior
Subordinated Debentures issued to TXU Capital will constitute a
separate series under the Subordinated Indenture.
A prospectus supplement and an officer's certificate
relating to the Junior Subordinated Debentures will include
specific terms of the securities. These terms will include some
or all of the following:
. The title of the Junior Subordinated Debentures;
. The total principal amount of the Junior Subordinated
Debentures;
. The dates on which the principal of the Junior
Subordinated Debentures will be payable and how it will
be paid;
. The interest rate or rates which the Junior
Subordinated Debentures will bear, or how such rate or
rates will be determined, the interest payment dates
for the Junior Subordinated Debentures and the regular
record dates for interest payments;
. Any right to extend the interest payment periods for the
Junior Subordinated Debentures;
. The percentage, if less than 100%, of the principal
amount of the Junior Subordinated Debentures, which
will be payable if the maturity of the Junior
Subordinated Debentures is accelerated;
. Any date or dates on which the Junior Subordinated
Debentures may be redeemed at the option of Texas
Utilities and any restrictions on such redemptions;
. Any sinking fund or other provisions that would
obligate Texas Utilities to repurchase or otherwise
redeem the Junior Subordinated Debentures;
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. Any changes or additions to the Events of Default under
the Subordinated Indenture or changes or additions to
the covenants of Texas Utilities under the Subordinated
Indenture;
. If the Junior Subordinated Debentures will be issued in
denominations other than $25;
. If payments on the Junior Subordinated Debentures may
be made in a currency or currencies other than United
States dollars;
. Any rights or duties of another person to assume the
obligations of Texas Utilities with respect to the Junior
Subordinated Debentures;
. Any collateral, security, assurance or guarantee for the
Junior Subordinated Debentures; and
. Any other terms of the Junior Subordinated Debentures
not inconsistent with the terms of the Subordinated
Indenture.
The Junior Subordinated Debentures will be limited in
aggregate principal amount to the sum of the aggregate
liquidation preference amount of the Preferred Trust Securities
and the consideration paid by Texas Utilities for the Common
Trust Securities. The Junior Subordinated Debentures are
unsecured, subordinated obligations of Texas Utilities which rank
junior to all of Texas Utilities' Senior Indebtedness. The
amounts payable as principal and interest on the Junior
Subordinated Debentures will be sufficient to provide for payment
of distributions payable on Preferred Trust Securities and Common
Trust Securities.
If Junior Subordinated Debentures are distributed to holders
of Preferred Trust Securities in a dissolution of TXU Capital,
such Junior Subordinated Debentures will be issued in fully
registered certificated form in the denominations and integral
multiples thereof in which such Preferred Trust Securities have
been issued and they may be transferred or exchanged at the
offices of the Debenture Trustee.
Payments of principal and interest on Junior Subordinated
Debentures will be payable, the transfer of Junior Subordinated
Debentures will be registrable, and Junior Subordinated
Debentures will be exchangeable for Junior Subordinated
Debentures of other denominations of the same aggregate principal
amount, at the corporate trust office of the Debenture Trustee in
The City of New York. However, Texas Utilities may choose to
make payment of interest by check mailed to the address of the
persons entitled to it and may require that the payment in full
of principal with respect to any Junior Subordinated Debenture be
made only upon surrender of the Junior Subordinated Debenture to
the Debenture Trustee.
OPTIONAL REDEMPTION
For so long as TXU Capital is the holder of all the related
outstanding Junior Subordinated Debentures, the proceeds of any
optional redemption will be used by TXU Capital to redeem
Preferred Trust Securities and Common Trust Securities in
accordance with their terms.
The Debenture Trustee will give notice to the holders of any
optional redemption of Junior Subordinated Debentures, not less
than 30 nor more than 60 days prior to such redemption. All
notices of redemption shall state the redemption date and the
redemption price plus accrued and unpaid interest. If less than
all the Junior Subordinated Debentures are to be redeemed, the
notice will identify those to be redeemed and the portion of the
principal amount of any Junior Subordinated Debentures to be
redeemed in part. The notice will state that on the redemption
date, subject to the Debenture Trustee's receipt of the
redemption monies, the redemption price plus accrued and unpaid
interest will become due and payable on each such Junior
Subordinated Debenture to be redeemed and that interest thereon
will cease to accrue on and after said date. It will name the
place or places where such Junior Subordinated Debentures are to
be surrendered for payment of the redemption price plus accrued
and unpaid interest.
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INTEREST
The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months
and for any period shorter than a full month, on the basis of the
actual number of days elapsed. In the event that any date on
which interest is payable on a series of the Junior Subordinated
Debentures is not a business day, then payment will be made on
the next business day. No interest will be paid in respect of
any such delay. However, if the delayed payment date is in the
next calendar year, the payment shall be made on the last
business day of the earlier year. These payments shall have the
same force and effect as if made on the date the payment was
originally payable.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as there is no default in the payment of interest on
the Junior Subordinated Debentures, Texas Utilities may extend
the interest payment period from time to time on the Junior
Subordinated Debentures for one or more periods. As a
consequence, distributions on Preferred Trust Securities would be
deferred during any such period. Interest would, however,
continue to accrue. If Texas Utilities extends the interest
period or is in default under a Guarantee or with respect to
payments on the Junior Subordinated Debentures, Texas Utilities
may not:
. declare or pay any dividend or distribution on its
capital stock, other than dividends paid in shares of
common stock of Texas Utilities;
. redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock;
. redeem any indebtedness that is equal in right of
payment with the Junior Subordinated Debentures; or
. make any guarantee payments with respect to any of the
above.
Any extension period with respect to payment of interest on
the Junior Subordinated Debentures, or any extended interest
payment period in respect of other securities issued under the
Subordinated Indenture or on any similar securities, will apply
to all securities of the same type. Such extensions will also
apply to distributions on Preferred Trust Securities and Common
Securities and all other securities with terms substantially the
same as Preferred Trust Securities and Common Securities. Before
an extension period ends, Texas Utilities may further extend the
interest payment period. No extension period as further extended
may exceed 20 consecutive quarters. After any extension period
and the payment of all amounts then due, Texas Utilities may
select a new extended interest payment period. No interest
period may be extended beyond the maturity of the Junior
Subordinated Debentures. Texas Utilities will give TXU Capital
and the Debenture Trustee notice of its election of an extension
period prior to the earlier of (i) one business day before the
record date for the distribution which would occur if Texas
Utilities did not make the election to extend or (ii) the date
Texas Utilities is required to give notice to the NYSE or any
other applicable self-regulatory organization of the record date.
Texas Utilities will cause TXU Capital to send notice of such
election to the holders of Preferred Trust Securities.
ADDITIONAL INTEREST
So long as any Preferred Trust Securities remain
outstanding, if TXU Capital is required to pay any taxes, duties,
assessments or governmental charges imposed by the United States
or any other taxing authority on income derived from the
interest payments on the Junior Subordinated Debentures, then
Texas Utilities will pay as interest on the Junior Subordinated
Debentures any additional interest that may be necessary in order
that the net amounts retained by TXU Capital after the payment of
such taxes, duties, assessments or governmental charges will be
the same as TXU Capital would have had in the absence of the
payment of such taxes, duties, assessments or governmental
charges.
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ASSIGNMENT OF OBLIGATIONS
Texas Utilities may assign its obligations under the Junior
Subordinated Debentures and the Subordinated Indenture to a
wholly-owned subsidiary, provided that no Event of Default, or
event which with passage of time or the giving of required
notice, or both, would become an Event of Default, has occurred
and is continuing. The subsidiary must assume in writing Texas
Utilities' payment obligations under the Junior Subordinated
Debentures and under the Subordinated Indenture. Texas Utilities
must fully and unconditionally guarantee payment of the obligations
of the assuming subsidiary under the Junior Subordinated Debentures
and the Subordinated Indenture.
If such an assignment is made, Texas Utilities will be
released and discharged from all its other obligations under the
Junior Subordinated Debentures and the Subordinated Indenture.
Any covenants made by Texas Utilities with respect to the Junior
Subordinated Debentures would become solely covenants of, and
would relate only to, the subsidiary.
DEFEASANCE
Texas Utilities will be discharged from its obligations on
the subordinated debentures of a particular series if it deposits
with the Debenture Trustee sufficient cash or government
securities to pay the principal, interest, any premium and any
other sums when due on the stated maturity date or a redemption
date of such series of the subordinated debentures.
SUBORDINATION
The Junior Subordinated Debentures will be subordinate and
junior in right of payment to all senior indebtedness of Texas
Utilities. No payment of the principal of the Junior
Subordinated Debentures (including redemption and sinking fund
payments), or interest on the Junior Subordinated Debentures may
be made until all holders of Senior Indebtedness have been paid,
if any of the following occurs:
. certain events of bankruptcy, insolvency or
reorganization of Texas Utilities;
. any Senior Indebtedness is not paid when due
and that default continues without waiver;
. any other default has occurred and continues
without waiver pursuant to which the holders
of Senior Indebtedness have accelerated the
maturity of such indebtedness; or
. the maturity of any other series of
subordinated debentures under the
Subordinated Indenture has been accelerated,
because of an event of default which remains
uncured.
Upon any distribution of assets of Texas Utilities to
creditors in connection with any insolvency, bankruptcy or
similar proceeding, all principal of, and premium, if any, and
interest due or to become due on, all Senior Indebtedness must be
paid in full before the holders of the Junior Subordinated
Debentures are entitled to receive or retain any payment.
Senior Indebtedness is defined in the Subordinated Indenture
to include all notes and other obligations including guarantees
of Texas Utilities for borrowed money that is not subordinate or
junior in right of payment to any other indebtedness of Texas
Utilities unless by its terms it is equal in right of payment to
the Junior Subordinated Debentures. The obligations of Texas
Utilities under the Guarantee and the Junior Subordinated
Debentures shall not be deemed to be Senior Indebtedness.
The Subordinated Indenture does not limit the aggregate
amount of Senior Indebtedness that may be issued. As of
September 30, 1998 Texas Utilities had approximately $4.8 billion
principal amount of indebtedness for borrowed money constituting
Senior Indebtedness.
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CONSOLIDATION, MERGER, AND SALE OF ASSETS
Under the terms of the Subordinated Indenture, Texas
Utilities may not consolidate with or merge into any other entity
or convey, transfer or lease its properties and assets
substantially as an entirety to any entity, unless:
. the surviving or successor entity is organized and
validly existing under the laws of any domestic
jurisdiction and it expressly assumes Texas
Utilities' obligations on all subordinated
debentures issued under the Subordinated
Indenture;
. immediately after giving effect to the
transaction, no Event of Default or no event
which, after notice or lapse of time or both,
would become an Event of Default, shall have
occurred and be continuing; and
. Texas Utilities shall have delivered to the
Debenture Trustee an officer's certificate and an
opinion of counsel as provided in the Subordinated
Indenture.
EVENTS OF DEFAULT
"Event of Default" when used in the Subordinated Indenture
with respect to any series of subordinated debentures, will mean
any of the following:
(1) failure to pay interest on any subordinated
debenture for 30 days after it is due;
(2) failure to pay the principal of or any premium on
any subordinated debenture when due;
(3) failure to perform any other covenant in the
Subordinated Indenture, other than a covenant that
does not relate to that series of subordinated
debentures, that continues for 90 days after Texas
Utilities receives written notice from the
Debenture Trustee or Texas Utilities and the
Debenture Trustee receive a written notice from
33% of the holders of the subordinated debentures
of such series;
(4) certain events in bankruptcy, insolvency or
reorganization of Texas Utilities; or
(5) any other event of default included in any
supplemental indenture or officer's certificate
for a specific series of subordinated debentures.
An Event of Default for a particular series of subordinated
debentures does not necessarily constitute an Event of Default
for any other series of subordinated debentures issued under the
Subordinated Indenture. The Debenture Trustee may withhold
notice to the holders of subordinated debentures of any default
except a default in the payment of principal or interest if it
considers such withholding of notice to be in the best interests
of the holders.
REMEDIES
If an Event of Default for any series of subordinated
debentures occurs and continues, the Debenture Trustee or the
holders of at least 33% in aggregate principal amount of the
subordinated debentures of the series may declare the entire
principal amount of all the subordinated debentures of such
series, together with accrued interest thereon, to be due and
payable immediately. However, if the Event of Default is
applicable to all outstanding subordinated debentures under the
Subordinated Indenture, only the Debenture Trustee or holders of
at least 33% in aggregate principal amount of all outstanding
subordinated debentures of all series, voting as one class, and
not the holders of any one series, may make such a declaration of
acceleration.
At any time after a declaration of acceleration with respect
to the subordinated debentures of any series has been made and
before a judgment or decree for payment of the money due has been
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obtained, the Event of Default giving rise to such declaration of
acceleration will be considered waived, and the declaration and
its consequences will be considered rescinded and annulled, if:
. Texas Utilities has paid or deposited with the
Debenture Trustee a sum sufficient to pay:
(1) all overdue interest on all subordinated
debentures of such series;
(2) the principal of and premium, if any, on any
subordinated debentures of such series which have
otherwise become due and interest that is
currently due;
(3) interest on overdue interest; and
(4) all amounts due to the Debenture Trustee under the
Subordinated Indenture; and
. any other Event of Default with respect to the
subordinated debentures of that series has been cured
or waived as provided in the Subordinated Indenture.
There is no automatic acceleration, even in the event of
bankruptcy, insolvency or reorganization of Texas Utilities.
Other than its duties in case of an Event of Default, the
Debenture Trustee is not obligated to exercise any of its rights
or powers under the Subordinated Indenture at the request, order
or direction of any of the holders, unless the holders offer the
Debenture Trustee a reasonable indemnity. If they provide this
reasonable indemnity, the holders of a majority in principal
amount of any series of subordinated debentures will have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee or
exercising any power conferred upon the Debenture Trustee.
However, if the Event of Default relates to more than one series,
only the holders of a majority in aggregate principal amount of
all affected series will have the right to make this direction.
The Debenture Trustee is not obligated to comply with directions
that conflict with law or other provisions of the Subordinated
Indenture.
No holder of subordinated debentures of any series will have
any right to institute any proceeding under the Subordinated
Indenture, or any remedy under the Subordinated Indenture,
unless:
. the holder has previously given to the Debenture
Trustee written notice of a continuing Event of
Default;
. the holders of a majority in aggregate principal amount
of the outstanding subordinated debentures of all
series in respect of which an Event of Default shall
have occurred and be continuing have made a written
request to the Debenture Trustee, and have offered
reasonable indemnity to the Debenture Trustee to
institute proceedings; and
. the Debenture Trustee has failed to institute any
proceeding for 60 days after notice.
However, such limitations do not apply to a suit by a holder of a
subordinated debenture for payment of the principal, premium or
interest on a subordinated debenture on or after the applicable
due date.
Texas Utilities will provide to the Debenture Trustee an
annual statement by an appropriate officer as to Texas Utilities'
compliance with all conditions and covenants under the
Subordinated Indenture.
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ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED TRUST
SECURITIES
If there is an Event of Default, then the holders of
Preferred Trust Securities will rely on the Property Trustee or
the Debenture Trustee, acting for the benefit of the Property
Trustee, to enforce the Property Trustee's rights against Texas
Utilities as a holder of the Junior Subordinated Debentures.
However, a holder of Preferred Trust Securities may enforce the
Subordinated Indenture directly against Texas Utilities to the
same extent as if the holder of Preferred Trust Securities held a
principal amount of Junior Subordinated Debentures equal to the
aggregate liquidation amount of its Preferred Trust Securities.
The holders of Preferred Trust Securities would not be able
to exercise directly against Texas Utilities any other rights
unless the Property Trustee or the Debenture Trustee failed to do
so for 60 days. Upon such failure, the holders of a majority of
the aggregate liquidation amount of the outstanding Preferred
Trust Securities would have the right to directly institute
proceedings for enforcement of all other rights against Texas
Utilities to the fullest extent permitted by law.
MODIFICATION AND WAIVER
Without the consent of any holder of subordinated
debentures, Texas Utilities and the Debenture Trustee may enter
into one or more supplemental indentures for any of the following
purposes:
. to evidence the assumption by any permitted
successor of the covenants of Texas Utilities
in the Subordinated Indenture and in the
subordinated debentures;
. to add additional covenants of Texas
Utilities or to surrender any right or power
of Texas Utilities under the Subordinated
Indenture;
. to add additional events of default;
. to change or eliminate or add any provision
to the Subordinated Indenture; provided,
however, if the change will adversely affect
the interests of the holders of subordinated
debentures of any series in any material
respect, such change, elimination or addition
will become effective only:
(1) when the consent of the holders of
subordinated debentures of such
series has been obtained in
accordance with the Subordinated
Indenture; or
(2) when no subordinated debentures of
the affected series remain
outstanding under the Subordinated
Indenture;
. to provide collateral security for all but
not part of the subordinated debentures;
. to establish the form or terms of
subordinated debentures of any other series
as permitted by the Subordinated Indenture;
. to provide for the authentication and
delivery of bearer securities and coupons
appertaining thereto;
. to evidence and provide for the acceptance of
appointment of a successor trustee;
. to provide for the procedures required for
use of a noncertificated system of
registration for the subordinated debentures
of all or any series;
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. to change any place where principal, premium,
and interest shall be payable, subordinated
debentures may be surrendered for
registration of transfer or exchange and
notices to Texas Utilities may be served; or
. to cure any ambiguity or inconsistency or to
make any other provisions with respect to
matters and questions arising under the
Subordinated Indenture; provided that such
action shall not adversely affect the
interests of the holders of subordinated
debentures of any series in any material
respect.
The holders of at least a majority in aggregate principal
amount of the subordinated debentures of all series then
outstanding may waive compliance by Texas Utilities with certain
restrictive provisions of the Subordinated Indenture. The
holders of not less than a majority in principal amount of the
outstanding subordinated debentures of any series may waive any
past default under the Subordinated Indenture with respect to
that series, except a default in the payment of principal,
premium, if any, or interest and certain covenants and provisions
of the Subordinated Indenture that cannot be modified or be
amended without the consent of the holder of each outstanding
subordinated debenture of the series affected.
If the Trust Indenture Act of 1939, as amended, is amended
after the date of the Subordinated Indenture in such a way as to
require changes to the Subordinated Indenture, the Subordinated
Indenture will be deemed to be amended so as to conform to such
amendment of the Trust Indenture Act of 1939, as amended. Texas
Utilities and the Debenture Trustee may, without the consent of
any holders, enter into one or more supplemental indentures to
evidence such an amendment.
The consent of the holders of a majority in aggregate
principal amount of the subordinated debentures of all series
then outstanding is required for all other modifications to the
Subordinated Indenture. However, if less than all of the series
of subordinated debentures outstanding are directly affected by a
proposed supplemental indenture, then the consent only of the
holders of a majority in aggregate principal amount of all series
that are directly affected will be required. No such amendment
or modification may:
. change the stated maturity of the principal
of, or any installment of principal of or
interest on, any subordinated debenture, or
reduce the principal amount of any
subordinated debenture or its rate of
interest or change the method of calculating
such interest rate or reduce any premium
payable upon redemption, or change the
currency in which payments are made, or
impair the right to institute suit for the
enforcement of any payment on or after the
stated maturity of any subordinated
debenture, without the consent of the holder;
. reduce the percentage in principal amount of
the outstanding subordinated debentures of
any series whose consent is required for any
supplemental indenture, or any waiver of
compliance with a provision of the
Subordinated Indenture or any default
thereunder and its consequences, or reduce
the requirements for quorum or voting,
without the consent of all the holders of the
series; or
. modify certain of the provisions of the
Subordinated Indenture relating to
supplemental indentures, waivers of certain
covenants and waivers of past defaults with
respect to the subordinated debentures of any
series, without the consent of the holder of
each outstanding subordinated debenture
affected thereby.
A supplemental indenture which changes the Subordinated
Indenture solely for the benefit of one or more particular series
of subordinated debentures, or modifies the rights of the holders
of subordinated debentures of one or more series, will not affect
the rights under the Subordinated Indenture of the holders of the
subordinated debentures of any other series. So long as any of
Preferred Trust Securities remain outstanding, the Debenture
Trustee may not consent to a supplemental indenture without the
prior consent of the holders of a majority in aggregate
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<PAGE>
liquidation preference of all Preferred Trust Securities or, in
the case of changes described in the clauses immediately above,
100% in aggregate liquidation preference of all such Preferred
Trust Securities then outstanding which would be affected
thereby.
The Subordinated Indenture provides that subordinated
debentures owned by Texas Utilities or anyone else required to
make payments on the subordinated debentures shall be disregarded
and considered not to be outstanding in determining whether the
required holders have given a request or consent.
Texas Utilities may fix in advance a record date to
determine the required number of holders entitled to give any
request, demand, authorization, direction, notice, consent,
waiver or other such act of holders, but Texas Utilities shall
have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent,
waiver or other act of holders may be given before or after such
record date, but only the holders of record at the close of
business on such record date will be considered to be holders for
the purposes of determining whether holders of the required
percentage of the outstanding subordinated debentures have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act,
and for that purpose the outstanding subordinated debentures
shall be computed as of the record date. Any request, demand,
authorization, direction, notice, consent, election, waiver or
other act of a holder shall bind every future holder of the same
subordinated debenture and the holder of every subordinated
debenture issued upon the registration of transfer of or exchange
of subordinated debentures. A transferee will be bound by acts
of the Debenture Trustee or Texas Utilities in reliance thereon,
whether or not notation of such action is made upon such
subordinated debenture.
RESIGNATION OF DEBENTURE TRUSTEE
The Debenture Trustee may resign at any time by giving
written notice to Texas Utilities or may be removed at any time
by act of the holders of a majority in principal amount of all
series of subordinated debentures then outstanding delivered to
such Debenture Trustee and Texas Utilities. No resignation or
removal of the Debenture Trustee and no appointment of a
successor trustee will be effective until the acceptance of
appointment by a successor trustee. So long as no Event of
Default or event which, after notice or lapse of time, or both,
would become an Event of Default has occurred and is continuing
and except with respect to a trustee appointed by act of the
holders, if Texas Utilities has delivered to the Debenture
Trustee a resolution of its Board of Directors appointing a
successor trustee and such successor has accepted such
appointment in accordance with the terms of the respective
Subordinated Indenture, the Debenture Trustee will be deemed to
have resigned and the successor will be deemed to have been
appointed as trustee in accordance with such Subordinated
Indenture.
NOTICES
Notices to holders of subordinated debentures will be given
by mail to the addresses of such holders as they may appear in
the security register therefor.
TITLE
Texas Utilities, the Debenture Trustee, and any agent of
Texas Utilities or the Debenture Trustee, may treat the person in
whose name subordinated debentures are registered as the absolute
owner thereof, whether or not such subordinated debt may be
overdue, for the purpose of making payments and for all other
purposes irrespective of notice to the contrary.
GOVERNING LAW
The Subordinated Indenture and the subordinated debentures
will be governed by, and construed in accordance with, the laws
of the State of New York.
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CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee under the Subordinated Indenture will
be The Bank of New York. In addition to acting as Debenture
Trustee, The Bank of New York will act as Property Trustee under
the Trust Agreement and as Guarantee Trustee under the Guarantee.
The Bank of New York (Delaware) will act as the Delaware Trustee
under the Trust Agreement. In addition, The Bank of New York
acts, and may act, as trustee under various indentures and trusts
of Texas Utilities and its affiliates.
PLAN OF DISTRIBUTION
The Debt Securities and the Preferred Trust Securities may
be offered (a) through agents; (b) through underwriters or
dealers; or (c) directly to purchasers.
BY AGENTS
The Debt Securities and Preferred Trust Securities may be
sold through agents designated by Texas Utilities.
BY UNDERWRITERS
If underwriters are used in the sale, the Debt Securities
and Preferred Trust Securities will be acquired by the
underwriters for their own account. The underwriters may resell
the Debt Securities and Preferred Trust Securities in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Underwriters may sell the Debt Securities and Preferred
Trust Securities directly or through underwriting syndicates
represented by managing underwriters. The obligations of the
underwriters to purchase the Debt Securities and Preferred Trust
Securities will be subject to certain conditions. The
underwriters will be obligated to purchase all the offered Debt
Securities and Preferred Trust Securities if any are purchased.
If a dealer is used in the sale, Texas Utilities or TXU Capital
will sell the Debt Securities and Preferred Trust Securities to
the dealer as principal. The dealer may then resell the Debt
Securities and Preferred Trust Securities at varying prices
determined at the time of resale.
DIRECT SALES
The Debt Securities and Preferred Trust Securities may also
be sold directly by Texas Utilities. In this case, no
underwriters or agents would be involved.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the
distribution of the Debt Securities and Preferred Trust
Securities may be underwriters as defined in the Securities Act
of 1933, as amended (1933 Act), and any discounts or commissions
received by them from Texas Utilities or TXU Capital and any
profit on the resale of the Debt Securities and Preferred Trust
Securities by them may be treated as underwriting discounts under
the 1933 Act. Any underwriters, dealers or agents will be
identified and their compensation described in a prospectus
supplement.
Texas Utilities or TXU Capital may authorize agents and
underwriters to solicit offers by certain institutions to
purchase Debt Securities and Preferred Trust Securities at the
public offering price and on terms described in the applicable
prospectus supplement.
Texas Utilities may have agreements with agents,
underwriters and dealers to indemnify them against certain civil
liabilities, including liabilities under the 1933 Act, or to
contribute with respect to payments which the agents,
underwriters, dealers and remarketing firms may be required to
make.
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<PAGE>
None of the Debt Securities or Preferred Trust Securities
has an established trading market. Texas Utilities may decide to
list any series of Securities on an exchange. However, Texas
Utilities will not be obligated to list securities on an exchange
unless it states otherwise in a prospectus supplement. Texas
Utilities cannot assure that there will be any liquidity of the
trading market for any of the Debt Securities and Preferred Trust
Securities.
Agents, underwriters and dealers may engage in transactions
with, or perform services for, Texas Utilities or its
subsidiaries in the ordinary course of business.
EXPERTS AND LEGALITY
The consolidated financial statements included in the latest
Annual Report of the Company on Form 10-K, incorporated herein by
reference, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report included in said
latest Annual Report of the Company on Form 10-K, and have been
incorporated by reference in reliance upon such report given upon
authority of the firm as experts in accounting and auditing.
With respect to any unaudited condensed consolidated interim
financial information included in Texas Utilities' Quarterly
Reports on Form 10-Q which are or will be incorporated herein by
reference, Deloitte & Touche LLP has applied limited procedures
in accordance with professional standards for reviews of such
information. As stated in any of their reports included in Texas
Utilities' Quarterly Reports on Form 10-Q, which are or will be
incorporated herein by reference, Deloitte & Touche LLP did not
audit and did not express an opinion on such interim financial
information. Deloitte & Touche LLP is not subject to the
liability provisions of Section 11 of the 1933 Act for any of
their reports on such unaudited condensed consolidated interim
financial information because such reports are not "reports" or a
"part" of the Registration Statement filed under the 1933 Act
with respect to the Debt and Preferred Trust Securities prepared
or certified by an accountant within the meaning of Sections 7
and 11 of the 1933 Act.
Ernst & Young, independent auditors, audited the
consolidated financial statements of The Energy Group Limited as
of March 31, 1998 and 1997, and for the year ended March 31,
1998, the six-months ended March 31, 1997, and for the two years
in the period ended September 30, 1996. These statements have
been incorporated herein by reference in reliance upon the
authority of Ernst & Young as experts in accounting and auditing
in giving the report.
The Statements made as to matters of law and legal
conclusions in Texas Utilities' Annual Report on Form 10-K for
the year ended December 31, 1997 under Part I, Item 1 -- Business
Regulation and Rates, and Environmental Matters, incorporated
herein by reference, have been reviewed by Worsham, Forsythe &
Wooldridge, L.L.P., Dallas, Texas, General Counsel for Texas
Utilities. All of such statements have been incorporated by
reference, herein in reliance upon the opinion of that firm given
upon their authority as experts. At March 31, 1998, members of
the firm of Worsham, Forsythe & Wooldridge, L.L.P., owned
approximately 41,200 shares of the Common Stock of Texas
Utilities.
Richards, Layton & Finger, P. A., Special Delaware counsel
for Texas Utilities and TXU Capital will issue an opinion as to
certain matters of Delaware law relating to the validity of the
Preferred Trust Securities, the enforceability of the Trust
Agreement and the creation of TXU Capital.
Worsham Forsythe & Wooldridge, L.L.P. and Thelen Reid &
Priest LLP for Texas Utilities and Winthrop, Stimson, Putnam &
Roberts, New York, New York for the Underwriters will each issue
an opinion as to the legality of the other securities offered
hereby. Worsham Forsythe & Wooldridge, L.L.P. will issue an
opinion as to all matters pertaining to incorporation of Texas
Utilities and all other matters of Texas law.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by Texas
Utilities in connection with the issuance and distribution of the
securities to be registered.
Filing fee - Securities and Exchange Commission . $111,200
Fees of Trustees . . . . . . . . . . . . . . . . 50,000*
Fees of Texas Utilities' counsel
Worsham, Forsythe & Wooldridge, L.L.P. . 175,000*
Thelen Reid & Priest LLP . . . . . . . . 175,000*
Fees of TXU Capital's counsel . . . . . . . 10,000*
Auditors' fees . . . . . . . . . . . . . . . 40,000*
Rating agencies' fees . . . . . . . . . . . 40,000*
Printing, including Registration Statement,
prospectuses, exhibits, etc. . . . . . . 50,000*
Miscellaneous . . . . . . . . . . . . . . . 33,800*
--------
Total expenses . . . . . . . . . . . . . . . $685,000*
========
--------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Restated Articles of Incorporation of
Texas Utilities provides as follows:
"The Corporation shall reimburse or indemnify any
former, present or future director, officer or employee of
the Corporation, or any person who may have served at its
request as a director, officer or employee of another
corporation, or any former, present or future director,
officer or employee of the Corporation who shall have served
or shall be serving as an administrator, agent or fiduciary
for the Corporation or for another corporation at the
request of the Corporation (and his heirs, executors and
administrators) for and against all expenses and liabilities
incurred by him or them, or imposed on him or them,
including, but not limited to, judgments, settlements, court
costs and attorneys' fees, in connection with, or arising
out of, the defense of any action, suit or proceeding in
which he may be involved by reason of his being or having
been such director, officer or employee, except with respect
to matters as to which he shall be adjudged in such action,
suit or proceeding to be liable because he did not act in
good faith, or because of dishonesty or conflict of interest
in the performance of his duty.
"No former, present or future director, officer or
employee of the Corporation (or his heirs, executors and
administrators) shall be liable for any act, omission, step
or conduct taken or had in good faith, which is required,
authorized or approved by any order or orders issued
II-1
<PAGE>
pursuant to the Public Utility Holding Company Act of 1935,
the Federal Power Act, or any other federal or state statute
regulating the Corporation or its subsidiaries, or any
amendments to any thereof. In any action, suit or proceeding
based on any act, omission, step or conduct, as in this
paragraph described, the provisions hereof shall be brought
to the attention of the court. In the event that the
foregoing provisions of this paragraph are found by the
court not to constitute a valid defense, each such director,
officer or employee (and his heirs, executors and
administrators) shall be reimbursed for, or indemnified
against, all expenses and liabilities incurred by him or
them, or imposed on him or them, including, but not limited
to, judgments, settlements, court costs and attorneys' fees,
in connection with, or arising out of, any such action, suit
or proceeding based on any act, omission, step or conduct
taken or had in good faith as in this paragraph described.
"The foregoing rights shall not be exclusive of other
rights to which any such director, officer or employee (or
his heirs, executors and administrators) may otherwise be
entitled under any bylaw, agreement, vote of shareholders or
otherwise, and shall be available whether or not the
director, officer or employee continues to be a director,
officer or employee at the time of incurring such expenses
and liabilities. In furtherance, and not in limitation of
the foregoing provisions of this Article IX, the Corporation
may indemnify and insure any such persons to the fullest
extent permitted by the Texas Business Corporation Act, as
amended from time to time, or the laws of the State of
Texas, as in effect from time to time."
Article 2.02-1 of the Texas Business Corporation Act permits
Texas Utilities, in certain circumstances, to indemnify any
present or former director, officer, employee or agent of Texas
Utilities against judgments, penalties, fines, settlements and
reasonable expenses incurred in connection with a proceeding in
which any such person was, is or is threatened to be, made a
party by reason of holding such office or position, but only to a
limited extent for obligations resulting from a proceeding in
which the person is found liable on the basis that a personal
benefit was improperly received or in circumstances in which the
person is found liable in a derivative suit brought on behalf of
Texas Utilities.
Article X of the Articles of Incorporation of Texas
Utilities provides as follows:
"A director of the Corporation shall not be liable to
the Corporation or its shareholders for monetary damages for
any act or omission in the director's capacity as a
director, except that this provision does not eliminate or
limit the liability of a director to the extent the director
is found liable for:
(a) a breach of a director's duty of loyalty to the
Corporation or its shareholders;
(b) an act or omission not in good faith that constitutes a
breach of duty of a director to the Corporation or an act or
omission that involved intentional misconduct or a knowing
violation of the law;
(c) a transaction from which a director received an improper
benefit, whether or not the benefit resulted from an action
taken within the scope of the director's office; or
(d) an act or omission for which the liability of a director
is expressly provided for by an applicable statute.
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<PAGE>
If the laws of the State of Texas are amended to authorize
action further eliminating or limiting the personal
liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the
fullest extent permitted by such laws as so amended. Any
repeal or modification of this Article X shall not adversely
affect any right of protection of a director of the
Corporation existing at the time of such repeal or
modification."
Section 22 of Texas Utilities' bylaws provides as follows:
"Section 22. Insurance, Indemnification and Other
Arrangements. Without further specific approval of the
shareholders of the Corporation, the Corporation may
purchase, enter into, maintain or provide insurance,
indemnification or other arrangements for the benefit of any
person who is or was a director, officer, employee or agent
of the Corporation or is or was serving another entity at
the request of the Corporation as a director, officer,
employee, agent or otherwise, to the fullest extent
permitted by the laws of the State of Texas, including
without limitation Art. 2.02-1 of the Texas Business
Corporation Act or any successor provision, against any
liability asserted against or incurred by any such person in
any such capacity or arising out of such person's service in
such capacity whether or not the Corporation would otherwise
have the power to indemnify against any such liability under
the Texas Business Corporation Act. If the laws of the State
of Texas are amended to authorize the purchase, entering
into, maintaining or providing of insurance, indemnification
or other arrangements in the nature of those permitted
hereby to a greater extent than presently permitted, then
the Corporation shall have the power and authority to
purchase, enter into, maintain and provide any additional
arrangements in such regard as shall be permitted from time
to time by the laws of the State of Texas without further
approval of the shareholders of the Corporation. No repeal
or modification of such laws or this Section 22 shall
adversely affect any such arrangement or right to
indemnification existing at the time of such repeal or
modification."
Texas Utilities has entered into agreements with its
directors which provide, among other things, for their
indemnification by Texas Utilities to the fullest extent
permitted by Texas law, unless a final adjudication establishes
that the indemnitee's acts were committed in bad faith, were the
result of active and deliberate dishonesty or that the indemnitee
personally gained a financial profit to which the indemnitee was
not legally entitled. These agreements further provide, under
certain circumstances, for the advancement of expenses and the
implementation of other arrangements for the benefit of the
indemnitee.
Texas Utilities has insurance covering its expenditures
which might arise in connection with its lawful indemnification
of its directors and officers for their liabilities and expenses.
Directors and officers of Texas Utilities also have insurance
which insures them against certain other liabilities and
expenses.
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ITEM 16. EXHIBITS.
PREVIOUSLY FILED*
-----------------
WITH
FILE AS
EXHIBIT NUMBER EXHIBIT
------- ------ -------
1(a) -- Form of Underwriting Agreement for
Debt Securities
1(b) -- Form of Underwriting Agreement for
Preferred Trust Securities
4(a) 333- 3(a) -- Restated Articles of Incorporation
12391 of Texas Utilities.
4(b) 333- 4(b) -- Bylaws of Texas Utilities, as
45657 amended.
4(c) -- Form of Indenture (For Unsecured
Debt Securities) of Texas
Utilities.
4(d) -- Form of officer's certificate
establishing a series of unsecured
debt securities, including Form of
Debt Security.
4(e) -- Trust Agreement of TXU Capital I.
4(f) -- Form of Amended and Restated Trust
Agreement of TXU Capital I.
4(g) -- Form of Indenture (For Unsecured
Subordinated Debt Securities
relating to Trust Securities) of
Texas Utilities.
4(h) -- Form of officer's certificate
establishing the Junior
Subordinated Debentures with Form
of Junior Subordinated Debenture
attached.
4(i) -- Form of Guarantee Agreement
relating to the Preferred Trust
Securities.
4(j) -- Form of Agreement as to Expenses
and Liabilities relating to the
Preferred Trust Securities is
contained in Exhibit D of Exhibit
4(f) hereto.
4(k) -- Form of Preferred Trust Securities
is contained in Exhibit C of
Exhibit 4(f) hereto.
5(a) -- Opinion of Worsham, Forsythe &
Wooldridge, L.L.P., General
Counsel for Texas Utilities.
5(b) -- Opinion of Thelen Reid & Priest
LLP, of counsel to Texas
Utilities.
5(c) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital and Texas
Utilities.
12 -- Computation of Ratio of Earnings
to Fixed Charges and Computation
of Ratio of Earnings to Combined
Fixed Charges and Preferred
Dividends of Texas Utilities.
15 -- Letter of Deloitte & Touche LLP
regarding unaudited condensed
interim financial information.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of Ernst & Young.
23(c) -- Consents of Worsham, Forsythe &
Wooldridge, L.L.P. and Thelen Reid
& Priest LLP are contained in
Exhibits 5(a) and 5(b),
respectively.
24 -- Power of Attorney (see page II-8
and Section 4 of Exhibit 4(e).
25(a) -- Statement of Eligibility on Form
T-1 of The Bank of New York
relating to Indenture (For
Unsecured Debt Securities).
II-4
<PAGE>
25(b) -- Statement of Eligibility on Form
T-1 of The Bank of New York with
respect to the Amended and
Restated Trust Agreement of TXU
Capital I.
25(c) -- Statement of Eligibility on Form
T-1 of The Bank of New York with
respect to the Indenture (For
Unsecured Subordinated Debt
Securities) of Texas Utilities.
25(d) -- Statement of Eligibility on Form
T-1 of The Bank of New York with
respect to the Guarantee Agreement
relating to the Preferred Trust
Securities.
--------------------
* Incorporated herein by reference.
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ITEM 17. UNDERTAKINGS.
a. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total Dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act of 1933 if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's Annual
Report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
b. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
II-6
<PAGE>
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-7
<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF TEXAS UTILITIES COMPANY WHOSE
SIGNATURE APPEARS BELOW HEREBY APPOINTS THE AGENTS FOR SERVICE
NAMED IN THIS REGISTRATION STATEMENT, AND EACH OF THEM SEVERALLY,
AS HIS ATTORNEY-IN-FACT TO SIGN IN HIS NAME AND BEHALF, IN ANY
AND ALL CAPACITIES STATED BELOW, AND TO FILE WITH THE SECURITIES
AND EXCHANGE COMMISSION, ANY AND ALL AMENDMENTS, INCLUDING POST-
EFFECTIVE AMENDMENTS, TO THIS REGISTRATION STATEMENT, AND THE
REGISTRANT HEREBY ALSO APPOINTS EACH SUCH AGENT FOR SERVICE
AS ITS ATTORNEY-IN-FACT WITH LIKE AUTHORITY TO SIGN AND FILE ANY
SUCH AMENDMENTS IN ITS NAME AND ON ITS BEHALF.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO
BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM
S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF DALLAS, AND STATE OF TEXAS, ON THE 10TH OF DECEMBER,
1998.
TEXAS UTILITIES COMPANY
BY /S/ ERLE NYE
---------------------
(ERLE NYE, CHAIRMAN
OF THE BOARD
AND CHIEF EXECUTIVE)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ ERLE NYE
--------------------------------- PRINCIPAL
(ERLE NYE, CHAIRMAN OF THE BOARD EXECUTIVE
AND CHIEF EXECUTIVE) OFFICER AND
DIRECTOR
/S/ MICHAEL J. MCNALLY
--------------------------------- PRINCIPAL
(MICHAEL J. MCNALLY, EXECUTIVE FINANCIAL
VICE PRESIDENT AND CHIEF OFFICER
FINANCIAL OFFICER)
/S/ JERRY W. PINKERTON
--------------------------------- PRINCIPAL
(JERRY W. PINKERTON, CONTROLLER) ACCOUNTING
OFFICER
/S/ J.S. FARRINGTON
--------------------------------- DIRECTOR
(J. S. FARRINGTON)
DECEMBER 10, 1998
/S/ WILLIAM M. GRIFFIN
--------------------------------- DIRECTOR
(WILLIAM M. GRIFFIN)
/S/ KERNEY LADAY
--------------------------------- DIRECTOR
(KERNEY LADAY)
/S/ MARGARET N. MAXEY
--------------------------------- DIRECTOR
(MARGARET N. MAXEY)
/S/ JAMES A. MIDDLETON
--------------------------------- DIRECTOR
(JAMES A. MIDDLETON)
/S/ J.E. OESTERREICHER
--------------------------------- DIRECTOR
(J. E. OESTERREICHER)
/S/ CHARLES R. PERRY
--------------------------------- DIRECTOR
(CHARLES R. PERRY)
/S/ HERBERT H. RICHARDSON
--------------------------------- DIRECTOR
(HERBERT H. RICHARDSON)
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
TXU Capital I certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of New York, and State of New York on the 10th day of December,
1998.
TXU CAPITAL I
By: /s/ Robert J. Reger
-------------------------
Robert J. Reger, Jr.
Attorney-in-fact
II-9
<PAGE>
EXHIBIT INDEX
PREVIOUSLY FILED*
-----------------
WITH
FILE AS
EXHIBIT NUMBER EXHIBIT
------- ------ -------
1(a) -- Form of Underwriting Agreement
for Debt Securities
1(b) -- Form of Underwriting Agreement
for Preferred Trust Securities
4(a) 333- 3(a) -- Restated Articles of
12391 Incorporation of Texas
Utilities.
4(b) 333- 4(b) -- Bylaws of Texas Utilities, as
45657 amended.
4(c) -- Form of Indenture (For
Unsecured Debt Securities) of
Texas Utilities.
4(d) -- Form of officer's certificate
establishing a series of
unsecured debt securities,
including Form of Debt
Security.
4(e) -- Trust Agreement of TXU Capital I.
4(f) -- Form of Amended and Restated
Trust Agreement of TXU Capital I.
4(g) -- Form of Indenture (For
Unsecured Subordinated Debt
Securities relating to Trust
Securities) of Texas Utilities.
4(h) -- Form of officer's certificate
establishing the Junior
Subordinated Debentures with
Form of Junior Subordinated
Debenture attached.
4(i) -- Form of Guarantee Agreement
relating to the Preferred Trust
Securities.
4(j) -- Form of Agreement as to
Expenses and Liabilities
relating to the Preferred Trust
Securities is contained in
Exhibit D of Exhibit 4(f)
hereto.
4(k) -- Form of Preferred Trust
Securities is contained in
Exhibit C of Exhibit 4(f)
hereto.
5(a) -- Opinion of Worsham, Forsythe &
Wooldridge, L.L.P., General
Counsel for Texas Utilities.
5(b) -- Opinion of Thelen Reid & Priest
LLP, of counsel to Texas
Utilities.
5(c) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital and
Texas Utilities.
12 -- Computation of Ratio of
Earnings to Fixed Charges and
Computation of Ratio of
Earnings to Combined Fixed
Charges and Preferred Dividends
of Texas Utilities.
15 -- Letter of Deloitte & Touche LLP
regarding unaudited condensed
interim financial information.
23(a) -- Consent of Deloitte & Touche
LLP.
23(b) -- Consent of Ernst & Young.
23(c) -- Consents of Worsham, Forsythe &
Wooldridge, L.L.P. and Thelen
Reid & Priest LLP are contained
in Exhibits 5(a) and 5(b),
respectively.
24 -- Power of Attorney (see page II-
8 and Section 4 of Exhibit 4(e).
25(a) -- Statement of Eligibility on
Form T-1 of The Bank of New
York relating to Indenture (For
Unsecured Debt Securities).
25(b) -- Statement of Eligibility on
Form T-1 of The Bank of New
York with respect to the
Amended and Restated Trust
Agreement of TXU Capital I.
25(c) -- Statement of Eligibility on
Form T-1 of The Bank of New
York with respect to the
Indenture (For Unsecured
Subordinated Debt Securities)
of Texas Utilities.
<PAGE>
25(d) -- Statement of Eligibility on
Form T-1 of The Bank of New
York with respect to the
Guarantee Agreement relating to
the Preferred Trust Securities.
--------------------
* Incorporated herein by reference.
Exhibit 1(a)
Texas Utilities Company
$
-----------------
% Debt Securities due
-- -------------
UNDERWRITING AGREEMENT
,
------------, ----
[Name and Address]
as Representatives of the Underwriters
named in Schedule II hereto
(the "Representative")
c/o Name Address
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
------------
corporation (the "Company"), proposes to issue and sell
severally to the underwriters named in Schedule II hereto (the
"Underwriters") $ principal amount of its % Debt
------------ --
Securities due (the "Securities"), subject to the
--------------
terms and conditions set forth herein. The Securities are to be
issued pursuant to the provisions of an Indenture (For Unsecured
Debt Securities Series ), dated as of , 1998,
-- ------------
between the Company and The Bank of New York, as trustee (the
"Indenture Trustee"), said Indenture, together with any
amendments or supplements thereto, being hereinafter referred to
as the "Indenture".
2. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to the several Underwriters
that:
(a) It has filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of
1933, as amended (the "Securities Act"), a registration
statement on Form S-3, including a prospectus, on ,
--------
1998 (Registration Nos. 333- and 333- -
--------- ---------
01), for the registration of $400,000,000 aggregate amount
of (i) the Company's unsecured debt securities and (ii) the
preferred trust securities of the Company's financing
subsidiary TXU Capital I, a Delaware business trust, an
equal principal amount of the Company's junior subordinated
debentures and guarantees and other obligations of the
Company in respect of the preferred trust securities. Such
registration statement, was declared effective by the
Commission on , 1998. References herein to the
----------
term "Registration Statement" as of any date shall be deemed
to refer to Registration Statement Nos. 333- and
---------
333- -01, as amended or supplemented as of such
---------
date, including all documents incorporated by reference
therein as of such date pursuant to Item 12 of Form S-3
("Incorporated Documents"); provided that if the Company
files a registration statement with the Commission pursuant
to Section 462(b) of the Securities Act (the "Rule 462(b)
Registration Statement"), then after such filing, all
references to "Registration Statement" shall be deemed
to include the Rule 462(b) Registration Statement.
References herein to the term "Prospectus" as of any given
date shall be deemed to refer to the prospectus, including
any preliminary prospectus, forming a part of Registration
Statement Nos. 333- and 333- -01, as
--------- ---------
amended or supplemented as of such date, including all
Incorporated Documents as of such date and including any
prospectus supplement relating to the Securities.
References herein to the term "Effective Date" shall be
deemed to refer to the later of the time and date
Registration Statement Nos. 333- and 333- -01,
-------- -------
any post-effective amendment to Registration Statement Nos.
333- and 333- -01, or any Rule 462(b)
--------- ---------
Registration Statement was declared effective or the time
and date of the filing thereafter of the Company's most
recent Annual Report on Form 10-K if such filing is made
prior to the Closing Date, as hereinafter defined. The
Company will not file any amendment to the Registration
Statement or supplement to the Prospectus on or after the
date of this Agreement and prior to the Closing Date, as
hereinafter defined, without prior notice to the
Underwriters, or to which Counsel for the Underwriters shall
reasonably object in writing. For the purposes of this
Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior
to the Closing Date, as hereinafter defined, shall be deemed
an amendment or supplement to the Registration Statement and
the Prospectus.
(b) On the Effective Date, the Registration Statement
and the prospectus included as part of the Registration
Statement fully complied and at the Closing Date, as
hereinafter defined, the Registration Statement, the
Prospectus and the Indenture will fully comply in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and the applicable rules and regu-
lations of the Commission thereunder; on the Effective Date
the Registration Statement did not, and at the Closing Date,
as hereinafter defined, the Registration Statement will not,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; on
the Effective Date the Prospectus did not, and at the
Closing Date, as hereinafter defined, and on the date it is
filed with the Commission pursuant to Rule 424 of the
General Rules and Regulations of the Securities Act ("Rule
424"), the Prospectus will not, contain an untrue statement
of a material fact or omit to state a material fact neces-
sary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; and on said dates the Incorporated Documents,
taken together as a whole, fully complied or will comply in
all material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable rules and regulations of the
Commission thereunder, and, when read together with the
Prospectus on said dates, did not and will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the foregoing representations and warranties
in this paragraph (b) shall not apply to statements or
omissions made in reliance upon information furnished in
writing to the Company by, or on behalf of, any Underwriter
through the Representatives for use in connection with the
preparation of the Registration Statement or the Prospectus
or to any statements in or omissions from the Statements of
Eligibility and Qualification under the Trust Indenture Act,
or amendments thereto, filed as exhibits to the Registration
Statement.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust, charter, by-laws or other agreement or instrument
to which the Company is now a party.
(d) Each direct and indirect material subsidiary of
the Company has been incorporated and is validly existing as
a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and
to conduct its business as currently conducted and as set
forth in or contemplated by the Prospectus, and is qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify or be in good standing would not have
a material adverse effect on the business, property or
financial condition of the Company and its subsidiaries,
considered as a whole. Except as otherwise set forth in or
contemplated by the Registration Statement and the
Prospectus, all of the issued and outstanding shares of
capital stock of direct and indirect material subsidiaries
of the Company have been authorized and validly issued, are
fully paid and non-assessable and (except for any directors'
qualifying shares) are owned by the Company, directly or
through its subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity other than those ordinary shares of TU Finance (No.
2) Limited, TU Acquisitions PLC, The Energy Group Limited
and Energy Holdings (No. 3) Limited (formerly known as The
Energy Group PLC) ("Energy Holdings") which have been
pledged as collateral for borrowings made by subsidiaries.
None of the outstanding shares of capital stock of such
material subsidiaries was issued in violation of preemptive
or other similar rights arising by operation of law, under
the charter or by-laws of any subsidiary or under any
agreement to which the Company or any subsidiary is a party.
3. Purchase and Sale. On the basis of the
-----------------
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall sell
to each of the Underwriters, and each of the Underwriters shall
purchase from the Company, at the time and place herein
specified, severally and not jointly, the principal amount of
Securities set forth opposite the name of such Underwriter in
Schedule II hereto, at the purchase price set forth in Schedule I
hereto.
4. Time and Place of Closing. Delivery of the
-------------------------
Securities against payment therefor by wire transfer in federal
funds by the Underwriters or on their behalf shall be made at the
office of Thelen Reid & Priest LLP, 40 West 57th Street, New
York, New York, at 10:00 A.M., New York Time, on ,
--------------
or at such other place, time and date as shall be agreed upon in
writing by the Company and you or established in accordance with
the following paragraph. The hour and date of such delivery and
payment are herein called the "Closing Date". The Securities
shall be delivered to The Depository Trust Company or to The Bank
of New York, as custodian for The Depository Trust Company, in
fully registered global form registered in the name of CEDE &
Co., for the respective accounts specified by you not later than
the close of business on the business day prior to the Closing
Date or such other date and time not later than the Closing Date
as agreed by The Depository Trust Company or The Bank of New
York. The Company agrees to make the Securities available to you
for checking purposes not later than 10:00 A.M., New York Time,
on the last business day preceding the Closing Date at the office
of Thelen Reid & Priest LLP, 40 West 57th Street, New York, New
York, 10019, or at such other place as the Company may specify.
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the aggregate principal amount
of the Securities that such Underwriter has agreed to purchase
and pay for hereunder, the Company shall immediately give notice
to the other Underwriters of the default of such Underwriter, and
the other Underwriters shall have the right within 24 hours after
the receipt of such notice to determine to purchase, or to
procure one or more others, who are members of the National
Association of Securities Dealers, Inc. ("NASD") (or, if not
members of the NASD, who are not eligible for membership in the
NASD and who agree (i) to make no sales within the United States,
its territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply
with the NASD's Conduct Rules) and satisfactory to the Company,
to purchase, upon the terms herein set forth, the aggregate
principal amount of the Securities that the defaulting
Underwriter had agreed to purchase. If any non-defaulting
Underwriter or Underwriters shall determine to exercise such
right, such Underwriter or Underwriters shall give written notice
to the Company of the determination in that regard within 24
hours after receipt of notice of any such default, and thereupon
the Closing Date shall be postponed for such period, not
exceeding three business days, as the Company shall determine.
If in the event of such a default no non-defaulting Underwriter
shall give such notice, then this Agreement may be terminated by
the Company, upon like notice given to the non-defaulting
Underwriters, within a further period of 24 hours. If in such
case the Company shall not elect to terminate this Agreement it
shall have the right, irrespective of such default:
(a) to require each non-defaulting Underwriter to
purchase and pay for the aggregate principal amount of the
Securities that it had agreed to purchase hereunder as
provided and, in addition, the principal amount of the
Securities that the defaulting Underwriter shall have so
failed to purchase up to a principal amount thereof equal to
one-ninth (1/9) of the principal amount of Securities that
such non-defaulting Underwriter has otherwise agreed to
purchase hereunder, and/or
(b) to procure one or more persons, reasonably
acceptable to the Representatives, who are members of the
NASD (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no
sales within the United States, its territories or its
possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the
principal amount of the Securities that such defaulting
Underwriter had agreed to purchase or that portion thereof
that the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 4, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday that
would otherwise be included in such period of time.
Any action taken by the Company under this Section 4
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 4 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 5(g) and 8
hereof.
5. Covenants of the Company. The Company agrees
------------------------
that:
(a) It will promptly deliver to you a signed copy of
the Registration Statement as originally filed or, to the
extent a signed copy is not available, a conformed copy,
certified by an officer of the Company to be in the form as
originally filed, including all Incorporated Documents and
exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 as soon as practicable and
advise you of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use
its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with the
Commission pursuant to Rule 424 as in the opinion of Counsel
for the Underwriters a prospectus covering the Securities is
required by law to be delivered in connection with sales by
an Underwriter or a dealer, any event relating to or
affecting the Company or of which the Company shall be
advised in writing by you shall occur that in the Company's
reasonable opinion after consultation with Counsel for the
Underwriters should be set forth in a supplement to, or an
amendment of, the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser, the Company will, at its expense,
amend or supplement the Prospectus by either (i) preparing
and furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an
appropriate filing pursuant to Section 13 of the Exchange
Act, which will supplement or amend the Prospectus so that,
as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the
expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver
a prospectus after the expiration of nine months from the
date the Prospectus is filed with the Commission pursuant to
Rule 424, the Company, upon your request, will furnish to
you, at your expense, a reasonable quantity of a
supplemental prospectus or supplements to the Prospectus
complying with Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Securities for offer and sale under the blue-sky laws of
such jurisdictions as you may designate, provided that the
Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be
unduly burdensome.
(g) It will, except as herein provided, pay all fees,
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and any filing by it of the
Prospectus or any amendments to the Registration Statement,
(ii) the issuance and delivery of the Securities as provided
in Section 4 hereof, (iii) the qualification of the
Securities under blue-sky laws (including counsel fees not
to exceed $7,500) and (iv) the printing and delivery to the
Underwriters of reasonable quantities of the Registration
Statement and the Prospectus and, except as provided in
Section 5(d) hereof, of any amendments or supplements
thereto. The Company shall not, however, be required to pay
any amount for any expenses of the Underwriters, except
that, if this Agreement shall be terminated in accordance
with the provisions of Section 6, 7 or 9 hereof, the Company
will reimburse the Underwriters for the fees and
disbursements of Counsel for the Underwriters, whose fees
and disbursements the Underwriters agree to pay in any other
event, and will reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount
not exceeding $5,000, incurred in contemplation of the
performance of this Agreement. The Company shall not in any
event be liable to the Underwriters for damages on account
of loss of anticipated profits.
(h) During the period beginning on the date hereof and
continuing to and including the Closing Date, it will not
offer, sell, contract to sell or otherwise transfer or
dispose of any debt securities of the Company or any
warrants, rights or options to purchase or otherwise acquire
debt securities of the Company substantially similar to the
Securities (other than (i) the Securities and (ii)
commercial paper issued in the ordinary course of business),
without the prior written consent of the Representatives.
6. Conditions of Underwriters' Obligations. The
---------------------------------------
obligations of the Underwriters to purchase and pay for the
Securities shall be subject to the accuracy of the
representations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to
be performed hereunder prior to the Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 5:30 P.M., New York
Time, on the second business day after the date of this
Agreement, or such other time and date as may be approved by
you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Worsham, Forsythe & Wooldridge, L.L.P., General Counsel for
the Company, Thelen Reid & Priest LLP, of counsel for the
Company, and Winthrop, Stimson, Putnam & Roberts, Counsel
for the Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV and V hereto (A)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (B) if the Prospectus relating to the
Securities shall be supplemented or amended after the
Prospectus shall have been filed with the Commission
pursuant to Rule 424, with any changes therein necessary to
reflect such supplementation or amendment.
(d) On and as of the date hereof and on and as of the
Closing Date you shall have received from Deloitte & Touche
LLP a letter to the effect that (i) they are independent
certified public accountants with respect to the Company,
within the meaning of the Securities Act and the related
rules and regulations adopted by the Commission thereunder,
(ii) in their opinion, the financial statements audited by
them and included or incorporated by reference in the
Prospectus comply as to form, in all material respects, with
the applicable accounting requirements of the Exchange Act
and the related rules and regulations adopted by the
Commission thereunder, (iii) on the basis of a reading of
the unaudited amounts of operating revenues and net income
included or incorporated by reference in the Prospectus and
the related financial statements from which these amounts
were derived, the latest available unaudited financial
statements of the Company and the minute books of the
Company and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an audit made in accordance with generally
accepted auditing standards and would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that Deloitte & Touche LLP
makes no representation as to the sufficiency of such
procedures for the Underwriters' purposes), nothing has come
to their attention that caused them to believe that (A) any
material modifications should be made to the unaudited
condensed consolidated financial statements incorporated by
reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles, (B) the un-
audited condensed consolidated financial statements
incorporated by reference in the Prospectus did not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
rules and regulations thereunder adopted by the Commission,
(C) for the twelve months ended December 31, 1998, if
available, there were any decreases in operating revenues or
net income as compared with the comparable period of the
preceding year, and (D) at a specified date not more than
seven days prior to the date of such letter, there was any
change in the capital stock of the Company, short-term bank
loans, commercial paper, notes payable or long-term debt of
the Company or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases that the Prospectus
discloses have occurred or may occur or which are occasioned
by the declaration of a regular quarterly dividend or the
acquisition of long-term debt for sinking fund purposes, or
that are described in such letter, (iv) on the basis of a
reading of the unaudited condensed consolidated pro forma
balance sheet as of March 31, 1998, the unaudited condensed
consolidated pro forma statements of income for the twelve
months ended December 31, 1997, and the three months ended
March 31, 1998, included or incorporated by reference in the
Prospectus, and inquiries of certain officers of the Company
and Energy Holdings who have responsibility for financial
and accounting matters (it being understood that the
foregoing procedures are substantially less in scope than an
examination, the objective of which is the expression of an
opinion on management's assumptions, the pro forma
adjustments, and the application of those adjustments to
historical financial information and would not necessarily
reveal matters of significance with respect to the comments
made in such letter, and accordingly that Deloitte & Touche
LLP makes no representation as to the sufficiency of such
procedures for the Underwriters' purposes), nothing came to
their attention that caused them to believe that the
unaudited pro forma condensed consolidated financial
statements referred to above incorporated by reference in
the Prospectus did not comply as to form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X and that the pro forma adjustments
had not been properly applied to the historical amounts in
the compilation of those statements, and (v) they have
compared the dollar amounts (or percentages or ratios
derived from such dollar amounts) and other financial
information included or incorporated by reference in the
Registration Statement and the Prospectus as reasonably
requested by you (in each case to the extent that such
dollar amounts, percentages and other financial information
are derived from the general accounting records of the
Company and its consolidated subsidiaries subject to the
internal controls of the Company's accounting system or are
derived indirectly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter, and have found such
dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise
specified in such letter.
(e) On and as of the Closing Date you shall have
received from Ernst & Young a letter in form and substance
reasonably satisfactory to counsel to the Underwriters (i)
to the effect that they are independent auditors with
respect to Energy Holdings, within the meaning of the
Securities Act and the related rules and regulations adopted
by the Commission thereunder and (ii) with respect to the
financial information concerning Energy Holdings
incorporated by reference in the Prospectus.
(f) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus, there shall not have been any material adverse
change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole,
whether or not in the ordinary course of business, and,
since such dates, there shall not have been any material
transaction entered into by the Company, other than transac-
tions in the ordinary course of business and transactions
contemplated by the Registration Statement or Prospectus,
and at the Closing Date you shall have received a
certificate to such effect dated the Closing Date and signed
by an officer of the Company.
(g) All legal proceedings to be taken in connection
with the issuance and sale of the Securities shall have been
satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 6 shall not have been fulfilled when and as required to
be fulfilled, this Agreement may be terminated by the
Representatives upon notice thereof to the Company. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 5(g) and 8 hereof.
7. Conditions of Company's Obligations. The
-----------------------------------
obligation of the Company to deliver the Securities shall be
subject to the conditions that the Prospectus shall have been
filed with the Commission pursuant to Rule 424 prior to 5:30
P.M., New York Time, on the second business day after the date of
this Agreement or such other time and date as may be approved by
the Company, and no stop order suspending the effectiveness of
the Registration Statement shall be in effect at the Closing Date
and no proceedings for that purpose shall be pending before, or
threatened by, the Commission at the Closing Date. In case these
conditions shall not have been fulfilled, this Agreement may be
terminated by the Company upon notice thereof to you. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 5(g) and 8 hereof.
8. Indemnification.
---------------
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
provided, however, that the indemnity agreement contained in
this Section 8 shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in
conformity with information furnished in writing to the
Company by or on behalf of any Underwriter, through the
Representatives or Counsel for the Underwriters, expressly
for use in the Registration Statement or the Prospectus or
any amendment or supplement to either thereof, or arising
out of, or based upon, statements in or omissions from that
part of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust
Indenture Act of any trustee with respect to any indenture
qualified pursuant to the Registration Statement; and
provided further, that the indemnity agreement contained in
this Section 8 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Securities
to any person if a copy of the Prospectus (exclusive of the
Incorporated Documents) shall not have been given or sent to
such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved
unless the alleged omission or alleged untrue statement was
not corrected in the Prospectus at the time of such written
confirmation. The indemnity agreement of the Company
contained in this Section 8 and the representations and
warranties of the Company contained in Section 2 hereof
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of
the Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its officers and directors, and each
person who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the
Company by or on behalf of any Underwriter, through the
Representatives or Counsel for the Underwriters, for use in
connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Company in writing expressly for use in the Prospectus
. The indemnity agreement of
----------------------------
the respective Underwriters contained in this Section 8
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of the Company, its
directors or its officers, any such Underwriter, or any such
controlling person, and shall survive the delivery of the
Securities.
(c) The Company and the several Underwriters each
shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder,
but the failure so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability hereunder
to the extent it is not materially prejudiced as a result of
such failure to notify and in any event shall not relieve it
from any liability that it or they may have to the
indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party shall be entitled
to participate at its own expense in the defense, or, if it
so elects, to assume (in conjunction with any other
indemnifying parties) the defense of such action, in which
event such defense shall be conducted by counsel chosen by
such indemnifying party or parties and satisfactory to the
indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect
not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for
the reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such
action (including impleaded parties) include both the
indemnified party and the indemnifying party and counsel for
the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by a single counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party (it being understood,
however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition
to local counsel) representing the indemnified parties who
are parties to such action). Each of the Company and the
Underwriters agrees that without the other party's prior
written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the
entry of any judgment in any claim in respect of which
indemnification may be sought under the indemnification
provision of this Agreement, unless such settlement,
compromise or consent (i) includes an unconditional release
of such other party from all liability arising out of such
claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on
behalf of such other party.
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect (i)
the relative fault of each indemnifying party on the one
hand and the indemnified party on the other in connection
with the statements or omissions that have resulted in such
losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of
the Securities pursuant to this Agreement, and (iii) any
other relevant equitable considerations; provided, however,
that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation or by any
other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, no Underwriter shall be
required to contribute in excess of the amount equal to the
excess of (i) the total price at which the Securities were
offered to the public, over (ii) the amount of any damages
which the Underwriter has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or
omission or alleged omission. The obligations of each
Underwriter to contribute pursuant to this Section 8 are
several and not joint and shall be in the same proportion of
all contributions of Underwriters required hereunder as such
Underwriter's obligation to underwrite Securities is of the
total amount of Securities set forth in Schedule I hereto.
9. Termination. This Agreement may be terminated, at
-----------
any time prior to the Closing Date, by the Representatives if
(a) after the date hereof and at or prior to the Closing Date
there shall have occurred any suspension or material limitation
of trading of any of the Company's securities on the New York
Stock Exchange, Inc. ("NYSE") or any general suspension of
trading in securities on the NYSE, the American Stock Exchange,
Inc. ("AMEX") or the NASDAQ Stock Market, Inc. ("NASDAQ") or
there shall have been established by the NYSE, AMEX or NASDAQ or
by the Commission or by any federal or state agency or by the
decision of any court, any general limitation on prices for such
trading or any general restrictions on the distribution of
securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any (i)
new material outbreak of hostilities or (ii) new material other
national or international calamity or crisis, including, but not
limited to, an escalation of hostilities that existed prior to
the date of this Agreement or (iii) material adverse change in
the financial markets in the United States, and the effect of any
such event specified in clause (a) or (b) above on the financial
markets of the United States shall be such as to make it
impracticable, in the reasonable judgment of the Representatives,
for the Underwriters to enforce contracts for the sale of the
Securities. This Agreement may also be terminated at any time
prior to the Closing Date by the Representatives if, in their
reasonable judgment, the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus (other
than an amendment or supplement relating solely to the activity
of any Underwriter or Underwriters) prepared and issued by the
Company after the effectiveness of this Agreement shall have
disclosed a material adverse change in the business, property or
financial condition of the Company and its subsidiaries,
considered as a whole, whether or not in the ordinary course of
business, that has materially impaired the marketability of the
Securities. Any termination hereof pursuant to this Section 9
shall be without liability of any party to any other party except
as otherwise provided in Sections 5(g) and 8 hereof.
10. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
-------------
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement shall inure to the benefit of the Company,
the several Underwriters and, with respect to the provisions of
Section 8 hereof, each director, officer and controlling person
referred to in said Section 8, and their respective successors.
Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this
Agreement. The term "successor" as used herein shall not include
any purchaser, as such purchaser, of any of the Securities from
any of the several Underwriters.
11. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 1601 Bryan Street,
Dallas, Texas 75201, Attention: Treasurer.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
TEXAS UTILITIES COMPANY
By
-----------------------------------
Name:
Title:
Accepted and delivered as of
the date first above written
[ ]
By: [ ]
By:
-------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
Underwriting Agreement dated: , 1998
----------------
Representative:
Securities
----------
Designation:
Aggregate Principal Amount:
Maturity Date:
Purchase Price: % of aggregate principal amount
----
Public Offering Price: % of aggregate principal amount
---
<PAGE>
SCHEDULE II
Texas Utilities Company
Debt Securities
Name Principal Amount of Debt Securities
---- -----------------------------------
<PAGE>
SCHEDULE III
[Letterhead of Worsham, Forsythe & Wooldridge, L.L.P.]
, 1998
-------------
as Representatives
------------------
of the Underwriters named in the Underwriting
Agreement, dated , 1998, between
------------
Texas Utilities Company and the Underwriters
[address]
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Company (the "Company") in connection with the issuance and sale
of $ aggregate principal amount of its % Debt
----------- --
Securities due (the "Securities") pursuant to the
-----------
Underwriting Agreement dated , 1998 between the
-------------
Company and the Underwriters named therein (the "Underwriting
Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Securities. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary as a basis for the conclusions of law
contained in the opinions enumerated below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials. We
have relied upon a certificate of the trustee under the Indenture
as to the authentication of the Securities. In our examination
we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a corporation duly authorized,
validly existing and in good standing under the laws of the State
of Texas, and has the corporate power and authority: (a) to
execute, deliver and perform its obligations under the
Underwriting Agreement and the Indenture, (b) to issue the
Securities and to incur the indebtedness to be evidenced thereby
and (c) to own its property and assets and to conduct the
business which it is now conducting;
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
3. The Securities and the Indenture have been duly
authorized, executed and delivered by the Company; the Securities
are entitled to the benefits of the Indenture; and the Securities
and the Indenture are legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity;
4. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
5. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Description of the
Senior Notes", insofar as they purport to constitute summaries of
the terms of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects;
6. Other than as stated, referred to or incorporated
by reference in the Registration Statement and the Prospectus,
there are no material pending legal proceedings to which the
Company is a party or of which property of the Company is the
subject which depart from the ordinary routine litigation
incident to the kind of business conducted by the Company, and to
our best knowledge no such proceedings are contemplated;
7. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424 under the Securities Act, (except
as to financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for those parts of the Registration
Statement that constitute the Forms T-1) complied as to form in
all material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act;
8. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Securities; and
9. Each Principal Subsidiary (as defined below) of the
Company has been incorporated and is validly existing and
subsisting as a corporation under the laws of the jurisdiction of
its incorporation; each Principal Subsidiary of the Company has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and
as set forth in or contemplated by the Prospectus, and to our
knowledge, is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as a whole; and except as set forth in
or contemplated by the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of each Principal
Subsidiary of the Company has been authorized and is non-
assessable and, to our knowledge, all such shares are validly
issued and fully paid and (except for directors' qualifying
shares) are owned by the Company, directly or through is
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity other than those
ordinary shares of TU Finance (No. 2) Limited, TU Acquisitions
PLC, The Energy Group Limited acquired indirectly by the Company,
which have been pledged as collateral for borrowings made by
subsidiaries. For purposes of this opinion, the term "Principal
Subsidiary" shall mean, collectively, the following companies:
Eastern Energy Limited, Texas Utilities Australia Pty. Ltd., The
Energy Group Limited, Eastern Group plc, Eastern Electricity plc,
Eastern Generation Limited, Eastern Natural Gas Limited, Eastern
Power and Energy Trading Limited, Texas Energy Industries, Inc.,
ENSERCH Corporation, Lufkin-Conroe Communications Co.,
Southwestern Electric Service Company, Texas Utilities Electric
Company, Texas Utilities Fuel Company, Texas Utilities Mining
Company and Texas Utilities Services Inc.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference), we had discussions with certain of its officers
and representatives and certain officers and representatives of
certain of its subsidiaries, with other counsel for the Company,
with Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements of
the Company incorporated by reference in the Registration
Statement and the Prospectus, with Ernst & Young, the independent
certified public accountants who audited certain of the financial
statements of Energy Holdings (No. 3) Limited (formerly known as
The Energy Group PLC) incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Registration Statement
and the Prospectus and take no responsibility therefor except as
set forth in paragraph 5 above. However, our examination of the
information relating to the Company contained in the Registration
Statement and the Prospectus and our discussions did not disclose
to us anything which gives us reason to believe that (except as
to the financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for those parts of the Registration
Statement that constitute the Forms T-1) (i) the Registration
Statement, as of the Effective Date, included an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or (ii) the Prospectus, at the time it was filed
with the Commission pursuant to Rule 424 under the Securities
Act, included, or on the date hereof includes, an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of Thelen Reid & Priest LLP, New
York, New York, of Counsel to the Company; as to matters of the
law of the United Kingdom, we have, with your consent relied upon
the opinions of M.C. Murray, London, England, General Counsel and
Secretary of The Energy Group Limited and E.J. Lean, Group
Solicitor of Eastern Group plc, and as to
<PAGE>
all matters of law of the Commonwealth of Australia we have with
your consent relied upon the opinion of Baker & McKenzie, Sidney,
Commonwealth of Australia, Counsel to Texas Utilities Australia
Pty. Ltd.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE, L.L.P.
By:
---------------------------
A Partner
<PAGE>
SCHEDULE IV
[Letterhead of Thelen Reid & Priest LLP]
New York, New York
, 1998
------------------
----------------------------
as Representatives if the Underwriters named in the
Underwriting Agreement, dated , 1998,
-------------
between Texas Utilities Company and the Underwriters
[address]
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company
(the "Company") in connection with the issuance and sale of
$ aggregate principal amount of its % Debt
----------- --
Securities due (the "Securities") pursuant to
-----------------
the Underwriting Agreement dated , 1998 between
---------------
the Company and the Underwriters (the "Underwriting Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Securities. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary as a basis for the conclusions of law
contained in the opinions enumerated below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials. We
have relied upon a certificate of the trustee under the Indenture
as to the authentication of the Securities. In our examination
we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
2. The Securities and the Indenture have been duly
authorized, executed and delivered by the Company; the Securities
are entitled to the benefits of the Indenture; and the Securities
and the Indenture are legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity.
3. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
4. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Description of the
Senior Notes", insofar as they purport to constitute summaries of
the terms of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects; the statements made in the Prospectus under the caption
"Certain United States Federal Income Tax Considerations",
insofar as they involve legal matters or legal conclusions, are
correct in all material respects.
5. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424 under the Securities Act, (except
as to the financial statements and schedules and other financial
and statistical data contained therein as to which we do not
express any belief and except for those parts of the Registration
Statement that constitute the Forms T-1) complied as to form in
all material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act.
6. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Securities.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference) we had discussions with certain of its officers and
representatives and certain officers and representatives of
certain of its subsidiaries, with other counsel for the Company,
with Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements of
the Company incorporated by reference in the Registration
Statement and the Prospectus, with Ernst & Young, the independent
certified public accountants who audited certain of the financial
statements of Energy Holdings (No. 3) Limited (formerly known as
The Energy Group PLC) incorporated by reference in the
Registration Statement and the Prospectus and with certain of
your officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Registration Statement
and the Prospectus and take no responsibility therefor except as
set forth in paragraph 4 above. However, our examination of the
information relating to the Company contained in the Registration
Statement and the Prospectus and our discussions did not disclose
to us anything which gives us reason to believe that (except as
to the financial statements and schedules and other financial and
statistical data contained therein, as to which we do not express
any belief and except for those parts of the Registration
Statement that constitute the Forms T-1) (i) the Registration
Statement, as of the Effective Date, included an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or (ii) the Prospectus, at the time it was filed
with the Commission pursuant to Rule 424 under the Securities
Act, included, or on the date hereof includes, an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Worsham, Forsythe & Wooldridge, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
THELEN REID & PRIEST LLP
<PAGE>
SCHEDULE V
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
New York, New York
, 1998
----------
as Representatives of the Underwriters
---------------
named in the Underwriting Agreement, dated , 1998,
------------
between Texas Utilities Company and the Underwriters
[address]
Ladies and Gentlemen:
We have acted as counsel to the Underwriters in
connection with their several purchases from Texas Utilities
Company (the "Company") of $ principal amount of the
-----------
Company's % Debt Securities due , (the
-- --------------
"Securities") pursuant to the Underwriting Agreement dated
, 1998 between the Underwriters and the Company (the
-------------
"Underwriting Agreement").
Terms not otherwise defined herein are used with the
meaning ascribed to them in the Underwriting Agreement.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Worsham, Forsythe & Wooldridge,
L.L.P., of Dallas, Texas, General Counsel for the Company, as to
the matters covered in such opinion relating to Texas law. We
have reviewed such opinion and believe that it is satisfactory
and that you and we are justified in relying thereon. We have
also reviewed the opinion of Thelen Reid & Priest LLP, Counsel to
the Company, required by paragraph (c) of Section 6 of the
Underwriting Agreement, and we believe such opinion to be
satisfactory.
We have, in addition, examined the documents described
in the list of closing papers as having been delivered to you at
the closing and such other documents and satisfied ourselves as
to such other matters as we have deemed necessary in order to
enable us to express this opinion. We have not examined the
Securities, except specimens thereof, and have relied upon a
certificate of the trustee under the Indenture as to the
authentication of the Securities. As to various questions of
fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement hereinafter mentioned. In such examination we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us and the genuineness and conformity
to original documents of documents submitted to us as certified
or photostatic copies.
Based on the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
2. The Securities and the Indenture have been duly
authorized, executed and delivered by the Company; the
Securities are entitled to the benefits of the Indenture;
and the Securities and the Indenture are legal, valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject
to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity;
3. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
4. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Description
of the Senior Notes", insofar as they purport to constitute
summaries of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all
material respects;
5. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the blue-sky laws of any jurisdiction) is
legally required for the authorization of the issue and sale
by the Company of the Securities; and
6. The Registration Statement, at the Effective Date
thereof, and the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424 (except in each case as
to financial statements and schedules and other financial
and statistical data contained or incorporated by reference
therein and except for those parts of the Registration
Statement that constitute the Forms T-1, upon which we
express no opinion), complied as to form in all material
respects with the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 4 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of its officers and representatives,
and officers and representatives of certain of its subsidiaries,
with counsel for the Company, with Deloitte & Touche LLP, the
independent public accountants who audited certain of the
financial statements of the Company incorporated by reference in
the Registration Statement and the Prospectus, with Ernst &
Young, the independent public accountants who audited certain of
the financial statements of Energy Holdings (No. 3) Limited
(formerly known as The Energy Group PLC) incorporated by
reference in the Registration Statement and the Prospectus, and
with certain of your representatives. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that at the Effective Date the Registration Statement
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time it was filed with the Commission pursuant
to Rule 424, or at the date hereof, included or includes any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data contained or incorporated by reference in the Registration
Statement or the Prospectus or as to those parts of the
Registration Statement that constitute the Forms T-1.
This opinion is given to you solely for your use in
connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon by any other
person or for any other purpose.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
Exhibit 1(b)
TXU CAPITAL I
Securities due ,
------------------------ ----------, ----
UNDERWRITING AGREEMENT
----------------------
, 1998
----------
Name
as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o Name
Address
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
------------
corporation (the "Company") and its financing subsidiary, TXU
Capital I, a Delaware business trust (the "Trust," and
hereinafter, together with the Company, the "Offerors"), propose
for the Trust to issue and sell severally to the underwriters
named in Schedule II hereto (the "Underwriters") the Trust's
----
Securities of the series designation, with the
----------------
terms and in the liquidation preference amount specified in
Schedule I hereto (the "Preferred Trust Securities").
2. Description of Preferred Trust Securities. The
-----------------------------------------
Offerors propose for the Trust to issue the Preferred Trust
Securities pursuant to an Amended and Restated Trust Agreement,
to be dated as of , 1998, among The Bank of New York,
----------
as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, certain employees of the Company, as Administrative
Trustees, and the several Holders as defined therein in
substantially the form heretofore delivered to you as the
Representatives, said Agreement being hereinafter referred to as
the "Trust Agreement". In connection with the issuance of the
Preferred Trust Securities, the Company proposes (i) to issue its
Junior Subordinated Debentures, Series A (the "Debentures")
pursuant to an Indenture, dated as of , 1998, between
----------
the Company and The Bank of New York, as trustee (the
"Indenture") and (ii) to issue a guarantee of the Capital
Securities to the extent described in the Prospectus (as defined
below) (the "Guarantee").
3. Representations and Warranties of the Offerors.
----------------------------------------------
The Offerors represent and warrant to the several Underwriters
that:
(a) The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3, including a prospectus, on
, 1998 (Registration Nos. 333- and
---------- ------------
333- -01) for the registration under the
----------------
Securities Act of 1933, as amended (the "Securities Act") of
$400,000,000 aggregate amount of (i) the Company's unsecured
debt securities and (ii) the preferred trust securities
("Trust Securities") of the Trust, an equal principal amount
of the Company's junior subordinated debentures and
guarantees and other obligations of the Company in respect
of the Trust Securities. Such registration statement
("Registration Statement Nos. 333- and 333-
-------- ---------
-01") was declared effective by the Commission on
, 1998. References herein to the term
----------
"Registration Statement" as of any date shall be deemed to
refer to Registration Statement Nos. 333- and 333-
---------
-01, as amended or supplemented to such date,
----------
including all documents incorporated by reference therein as
of such date pursuant to Item 12 of Form S-3 ("Incorporated
Documents"); provided that if the Company files a
registration statement with the Commission pursuant to
Section 462(b) of the Securities Act (the "Rule 462(b)
Registration Statement"), then after such filing, all
references to "Registration Statement" shall be deemed to
include the Rule 462(b) Registration Statement. References
herein to the term "Prospectus" as of any given date shall
be deemed to refer to the prospectus, including any
preliminary prospectus, forming a part of Registration
Statement Nos. 333- and 333- -01, as amended
--------- --------
or supplemented as of such date, including all Incorporated
Documents as of such date and including any prospectus
supplement relating to the Preferred Trust Securities.
References herein to the term "Effective Date" shall be
deemed to refer to the later of the time and date
Registration Statement Nos. 333- and 333-
--------- ----------
-01, any post-effective amendment to Registration Statement
Nos. 333- and 333- -01 or any Rule
--------- ------------
462(b) Registration Statement was declared effective or the
time and date of the filing thereafter of the Company's most
recent Annual Report on Form 10-K if such filing is made
prior to the Closing Date, as hereinafter defined. The
Company will not file any amendment to the Registration
Statement or supplement to the Prospectus on or after the
date of this Agreement and prior to the Closing Date, as
hereinafter defined, without prior notice to the
Underwriters, or to which Counsel for the Underwriters shall
reasonably object in writing. For the purposes of this
Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior
to the Closing Date, as hereinafter defined, shall be deemed
an amendment or supplement to the Registration Statement and
the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus, the Trust Agreement, the Indenture and the
Guarantee will fully comply in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act"),
and the applicable rules and regulations of the Commission
thereunder; on the Effective Date the Registration Statement
did not, and at the Closing Date, as hereinafter defined,
the Registration Statement will not, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; on the Effective Date the
Prospectus did not, and at the Closing Date, as hereinafter
defined, and on the date it is filed with the Commission
pursuant to Rule 424 of the General Rules and Regulations of
the Securities Act ("Rule 424"), the Prospectus will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and on said dates the
Incorporated Documents, taken together as a whole, fully
complied or will fully comply in all material respects with
the applicable provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the applicable
rules and regulations of the Commission thereunder, and,
when read together with the Prospectus on said dates did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information
furnished in writing to the Company by, or on behalf of, any
Underwriter for use in connection with the preparation of
the Registration Statement or the Prospectus or to any
statements in or omissions from the Statements of
Eligibility and Qualification under the Trust Indenture Act,
or amendments thereto, filed as exhibits to the Registration
Statement.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust, charter, by-laws or other agreement or instrument
to which the Company or the Trust is now a party.
(d) Each direct and indirect material subsidiary of
the Company has been incorporated and is validly existing as
a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and
to conduct its business as currently conducted and as set
forth in or contemplated by the Prospectus, and is qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify or be in good standing would not have
a material adverse effect on the business, property or
financial condition of the Company and its subsidiaries,
considered as a whole. Except as otherwise set forth in or
contemplated by the Registration Statement and the
Prospectus, all of the issued and outstanding shares of
capital stock of direct and indirect material subsidiaries
of the Company have been authorized and validly issued, are
fully paid and non-assessable and (except for any directors'
qualifying shares) are owned by the Company, directly or
through its subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity other than those ordinary shares of TU Finance (No.
2) Limited, TU Acquisitions PLC, The Energy Group Limited
and Energy Holdings (No. 3) Limited (formerly known as The
Energy Group PLC) ("Energy Holdings") which have been
pledged as collateral for borrowings made by subsidiaries.
None of the outstanding shares of capital stock of such
material subsidiaries was issued in violation of preemptive
or other similar rights arising by operation of law, under
the charter or by-laws of any subsidiary or under any
agreement to which the Company or any subsidiary is a party.
4. Purchase and Sale.
-----------------
(a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions
herein set forth, the Trust shall sell to each of the
Underwriters, and each Underwriter shall purchase from the
Trust, at the time and place herein specified, severally and
not jointly, the respective liquidation preference amount of
the Preferred Trust Securities set forth opposite the name
of such Underwriter in Schedule II attached hereto, at the
purchase price or prices set forth in Schedule I hereto.
(b) The Company shall pay to the Underwriters a
commission equal to % of the aggregate liquidation
---
preference amount of the Preferred Trust Securities.
5. Time and Place of Closing. Delivery of the
-------------------------
Preferred Trust Securities against payment therefor by wire
transfer in federal funds shall be made at the office of Thelen
Reid & Priest LLP, 40 West 57th Street, New York, New York, at
10:00 A.M., New York Time, on , 1998, or at such other
----------
place, time and date as shall be agreed upon in writing by the
Company and you or established in accordance with the following
paragraph. The hour and date of such delivery and payment are
herein called the "Closing Date". The Preferred Trust Securities
shall be delivered to The Depositary Trust Company or to The Bank
of New York, as custodian for The Depositary Trust Company, in
fully registered global form registered in the name of Cede & Co.
for the respective accounts specified by you not later than the
close of business on the business day preceding the Closing Date.
The Trust agrees to make the Preferred Trust Securities available
to you for checking purposes not later than 10:00 A.M., New York
Time, on the last business day preceding the Closing Date at the
office of Thelen Reid & Priest, 40 West 57th Street, New York,
New York, 10019, or at such other place as the Trust may specify.
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the liquidation preference
amount of the Preferred Trust Securities that such Underwriter
has agreed to purchase and pay for hereunder, the Company shall
immediately give notice to the other Underwriters of the default
of such Underwriter, and the other Underwriters shall have the
right within 24 hours after the receipt of such notice to
determine to purchase, or to procure one or more others, who are
members of the National Association of Securities Dealers, Inc.
("NASD") (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no sales
within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with the NASD's Conduct Rules) and
satisfactory to the Company, to purchase, upon the terms herein
set forth, the liquidation preference amount of the Preferred
Trust Securities that the defaulting Underwriter had agreed to
purchase. If any non-defaulting Underwriter or Underwriters
shall determine to exercise such right, such Underwriter or
Underwriters shall give written notice to the Company of the
determination in that regard within 24 hours after receipt of
notice of any such default, and thereupon the Closing Date shall
be postponed for such period, not exceeding three business days,
as the Company shall determine. If in the event of such a
default no non-defaulting Underwriter shall give such notice,
then this Agreement may be terminated by the Company, upon like
notice given to the non-defaulting Underwriters, within a further
period of 24 hours. If in such case the Company shall not elect
to terminate this Agreement it shall have the right, irrespective
of such default:
(a) to require each non-defaulting Underwriter to
purchase and pay for the respective liquidation preference
amount of the Preferred Trust Securities that it had agreed
to purchase hereunder as hereinabove provided and, in
addition, the liquidation preference amount of the Preferred
Trust Securities that the defaulting Underwriter shall have
so failed to purchase up to a liquidation preference amount
thereof equal to one-ninth (1/9) of the liquidation
preference amount of Preferred Trust Securities that such
non-defaulting Underwriter has otherwise agreed to purchase
hereunder, and/or
(b) to procure one or more persons, reasonably
acceptable to the Representatives, who are members of the
NASD (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no
sales within the United States, its territories or its
possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Conduct Rules), to purchase, upon the terms
herein set forth, either all or a part of the liquidation
preference amount of the Preferred Trust Securities that
such defaulting Underwriter had agreed to purchase or that
portion thereof that the remaining Underwriters shall not be
obligated to purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday that
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees
------------------------
that:
(a) It will promptly deliver to each of you a signed
copy of the Registration Statement as originally filed or,
to the extent a signed copy is not available, a conformed
copy, certified by an officer of the Company to be in the
form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 as soon as practicable and
advise you of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Offerors shall have received notice. The Company will use
its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with the
Commission pursuant to Rule 424 as in the opinion of Counsel
for the Underwriters a prospectus covering the Preferred
Trust Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event
relating to or affecting the Company or the Trust or of
which the Company shall be advised in writing by you shall
occur that in the Company's reasonable opinion after
consultation with Counsel for the Underwriters should be set
forth in a supplement to, or an amendment of, the Prospectus
in order to make the Prospectus not misleading in the light
of the circumstances when it is delivered to a purchaser,
the Company will, at its expense, amend or supplement the
Prospectus by either (i) preparing and furnishing to you at
the Company's expense a reasonable number of copies of a
supplement or supplements or an amendment or amendments to
the Prospectus or (ii) making an appropriate filing pursuant
to Section 13 of the Exchange Act, which will supplement or
amend the Prospectus so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not
misleading; provided that should such event relate solely to
the activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and fur-
nishing any such amendment or supplement. In case any
Underwriter is required to deliver a prospectus after the
expiration of nine months from the date the Prospectus is
filed with the Commission pursuant to Rule 424, the Company,
upon such Underwriter's request, will furnish to such
Underwriter, at the expense of such Underwriter, a
reasonable quantity of a supplemental prospectus or
supplements to the Prospectus complying with Section 10(a)
of the Securities Act.
(e) It will make generally available to its security
holders and the security holders of the Trust, as soon as
practicable, an earnings statement (which need not be
audited) covering a period of at least twelve months
beginning not earlier than the first day of the month next
succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the
Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Preferred Trust Securities for offer and sale under the
blue-sky laws of such jurisdictions as you may designate,
provided that the neither of the Offerors shall be required
to qualify as a foreign corporation or dealer in securities,
to file any consents to service of process under the laws of
any jurisdiction, or to meet any other requirements deemed
by the Offerors to be unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Preferred Trust Securities as provided in Section 5
hereof, (iii) the qualification of the Preferred Trust
Securities under blue-sky laws (including counsel fees not
to exceed $7,500), and (iv) the printing and delivery to the
Underwriters of reasonable quantities of the Registration
Statement and, except as provided in Section 6(d) hereof, of
the Prospectus. The Company shall not, however, be required
to pay any amount for any expenses of yours or any of the
Underwriters, except that, if this Agreement shall be
terminated in accordance with the provisions of Section 7, 8
or 10 hereof, the Company will reimburse you for the fees
and disbursements of Counsel for the Underwriters, whose
fees and disbursements the Underwriters agree to pay in any
other event, and will reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount
not exceeding $5,000, incurred in contemplation of the
performance of this Agreement. The Company shall not in any
event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits.
(h) During the period from the date of this Agreement
to the Closing Date, neither the Company nor the Trust will,
without the prior written consent of the Representatives,
directly or indirectly, publicly issue, sell, offer or
contract to sell, in the market in which the Preferred Trust
Securities are being offered and sold, any securities of the
Company or any of its subsidiaries or of the Trust which are
of the same class as the Preferred Trust Securities.
7. Conditions of Underwriters' Obligations. The
---------------------------------------
obligations of the Underwriters to purchase and pay for the
Preferred Trust Securities shall be subject to the accuracy of
the representations and warranties made herein on the part of
each of the Offerors, to the performance by each of the Offerors
of its obligations to be performed hereunder prior to the Closing
Date, and to the following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 5:30 P.M., New York
Time, on the second business day after the date of this
Agreement, or such other time and date as may be approved by
you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Richards, Layton & Finger, P.A., Delaware counsel for the
Company and the Trust, Worsham, Forsythe & Wooldridge,
L.L.P., General Counsel for the Company, Thelen Reid &
Priest LLP, of counsel for the Company, and Winthrop,
Stimson, Putnam & Roberts, Counsel for the Underwriters,
opinions in substantially the form and substance prescribed
in Schedules III, IV, V and VI hereto (i) with such changes
therein as may be agreed upon by the Company and you, with
the approval of Counsel for the Underwriters, and (ii) if
the Prospectus relating to the Preferred Trust Securities
shall be supplemented or amended after the Prospectus shall
have been filed with the Commission pursuant to Rule 424,
with any changes therein necessary to reflect such
supplementation or amendment.
(d) On and as of the Closing Date, you shall have
received from Deloitte & Touche LLP a letter to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the related rules and regulations adopted
by the Commission thereunder, (ii) in their opinion, the
financial statements audited by them and included or
incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and
regulations adopted by the Commission thereunder, (iii) on
the basis of a reading of the unaudited amounts of operating
revenues and net income included or incorporated by
reference in the Prospectus and the related financial
statements from which these amounts were derived, the latest
available unaudited financial statements of the Company and
the minute books of the Company and inquiries of officers of
the Company who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance
with generally accepted auditing standards and would not
necessarily reveal matters of significance with respect to
the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention that caused
them to believe that (A) the unaudited financial statements
incorporated by reference in the Prospectus were not
determined in accordance with generally accepted accounting
principles applied on a basis substantially consistent with
that of the corresponding amounts in the latest available
audited financial statements, (B) the unaudited amounts of
operating revenues and net income of the Company included or
incorporated by reference in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of
income incorporated by reference in the Prospectus, (C) for
the twelve months ended December 31, 1998, if available,
there were any decreases in operating revenues or net income
as compared with the comparable period of the preceding
year, and (D) at a specified date not more than seven days
prior to the date of such letter, there was any change in
the capital stock of the Company, short-term bank loans,
commercial paper, notes payable or long-term debt of the
Company or decrease in its net assets, in each case as
compared with amounts shown in the most recent balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases that the Prospectus
discloses have occurred or may occur or which are occasioned
by the declaration of a regular quarterly dividend or the
acquisition of long-term debt for sinking fund purposes, or
that are described in such letter, (iv) on the basis of a
reading of the unaudited condensed consolidated pro forma
balance sheet as of March 31, 1998, the unaudited condensed
consolidated pro forma statements of income for the twelve
months ended December 31, 1997, and the three months ended
March 31, 1998, included or incorporated by reference in the
Prospectus, and inquiries of certain officers of the Company
and Energy Holdings who have responsibility for financial
and accounting matters (it being understood that the
foregoing procedures are substantially less in scope than an
examination, the objective of which is the expression of an
opinion on management's assumptions, the pro forma
adjustments, and the application of those adjustments to
historical financial information and would not necessarily
reveal matters of significance with respect to the comments
made in such letter, and accordingly that Deloitte & Touche
LLP makes no representation as to the sufficiency of such
procedures for the Underwriters' purposes), nothing came to
their attention that caused them to believe that the
unaudited pro forma condensed consolidated financial
statements referred to above incorporated by reference in
the Prospectus did not comply as to form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X and that the pro forma adjustments
had not been properly applied to the historical amounts in
the compilation of those statements, and (v) they have
compared the dollar amounts (or percentages or ratios
derived from such dollar amounts) and other financial
information included or incorporated by reference in the
Registration Statement and the Prospectus as reasonably
requested by you (in each case to the extent that such
dollar amounts, percentages and other financial information
are derived from the general accounting records of the
Company and its consolidated subsidiaries subject to the
internal controls of the Company's accounting system or are
derived indirectly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter, and have found such
dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise
specified in such letter.
(e) On and as of the Closing Date you shall have
received from Ernst & Young a letter in form and substance
reasonably satisfactory to counsel to the Underwriters (i)
to the effect that they are independent auditors with
respect to Energy Holdings, within the meaning of the
Securities Act and the related rules and regulations adopted
by the Commission thereunder and (ii) with respect to the
financial information concerning Energy Holdings
incorporated by reference in the Prospectus.
(f) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole,
whether or not in the ordinary course of business, and,
since such dates, there shall not have been any material
transaction entered into by the Company, other than transac-
tions in the ordinary course of business and transactions
contemplated by the Registration Statement or Prospectus,
and at the Closing Date you shall have received a
certificate to such effect dated the Closing Date and signed
by an officer of the Company.
(g) All legal proceedings to be taken in connection
with the issuance and sale of the Preferred Trust Securities
shall have been satisfactory in form and substance to Coun-
sel for the Underwriters.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated by the Representatives upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections
6(g) and 9 hereof.
8. Conditions of Offerors' Obligations. The
-----------------------------------
obligation of the Offerors to deliver the Preferred Trust
Securities shall be subject to the conditions that the Prospectus
shall have been filed with the Commission pursuant to Rule 424
prior to 5:30 P.M., New York Time, on the second business day
after the date of this Agreement or such other time and date as
may be approved by the Company, and no stop order suspending the
effectiveness of the Registration Statement shall be in effect at
the Closing Date and no proceedings for that purpose shall be
pending before, or threatened by, the Commission at the Closing
Date. In case these conditions shall not have been fulfilled,
this Agreement may be terminated by the Company upon notice
thereof to you. Any such termination shall be without liability
of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
9. Indemnification.
---------------
(a) The Offerors shall jointly and severally
indemnify, defend and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each such Underwriter and controlling
person for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or the Prospectus, or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
in the light of the circumstances under which they were made
not misleading; provided, however, that the indemnity
agreement contained in this Section 9 shall not apply to any
such losses, claims, damages, liabilities, expenses or
actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made
in reliance upon and in conformity with information
furnished in writing to the Offerors by or on behalf of any
Underwriter, through the Representatives or Counsel for the
Underwriters, for use in connection with the preparation of
the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, or arising out
of, or based upon, statements in or omissions from that part
of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust
Indenture Act of any Trustee with respect to any indenture
qualified pursuant to the Registration Statement; and
provided further, that the indemnity agreement contained in
this Section 9 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Preferred
Trust Securities to any person if a copy of the Prospectus
(exclusive of the Incorporated Documents) shall not have
been given or sent to such person by or on behalf of such
Underwriter with or prior to the written confirmation of the
sale involved unless the alleged omission or alleged untrue
statement was not corrected in the Prospectus at the time of
such written confirmation. The indemnity agreement of the
Offerors contained in this Section 9 and the representations
and warranties of the Offerors contained in Section 3 hereof
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of
the Preferred Trust Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, their officers and directors, and
each person who controls either of the Offerors within the
meaning of Section 15 of the Securities Act, from and
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or
common law and shall reimburse each of them for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the
Offerors by or on behalf of such Underwriter, through the
Representatives or Counsel for the Underwriters, for use in
connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Offerors in writing expressly for use in the Prospectus
----
. The indemnity agreement of the
------------------------
respective Underwriters contained in this Section 9 shall
remain operative and in full force and effect regardless of
any termination of this Agreement or of any investigation
made by or on behalf of either Offeror, its directors or its
officers, any such Underwriter, or any such controlling
person, and shall survive the delivery of the Preferred
Trust Securities.
(c) The Company, the Trust and the several
Underwriters each shall, upon the receipt of notice of the
commencement of any action against it or any person
controlling it as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement
contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the failure so to
notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from
any liability hereunder to the extent it is not materially
prejudiced as a result of such failure to notify and in any
event shall not relieve it from any liability that it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel
chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall
be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of
such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them; provided, however,
if the defendants in any such action (including impleaded
parties) include both the indemnified party and the
indemnifying party and counsel for the indemnified party
shall have reasonably concluded that there may be a conflict
of interest involved in the representation by a single
counsel of both the indemnifying party and the indemnified
party, the indemnified party or parties shall have the right
to select separate counsel, satisfactory to the indemnifying
party, whose fees and expenses shall be paid by such
indemnifying party (it being understood, however, that the
indemnifying party shall not be liable for the fees and
expenses of more than one separate counsel (in addition to
local counsel) representing the indemnified parties who are
parties to such action). Each of the Offerors and the
Underwriters agrees that without the other party's prior
written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the
entry of any judgment in any claim in respect of which
indemnification may be sought under the indemnification
provision of this Agreement, unless such settlement,
compromise or consent (i) includes an unconditional release
of such other party from all liability arising out of such
claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on
behalf of such other party.
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect (i)
the relative fault of each indemnifying party on the one
hand and the indemnified party on the other in connection
with the statements or omissions that have resulted in such
losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Offerors on the one hand
and the Underwriters on the other hand from the offering of
the Preferred Trust Securities pursuant to this Agreement,
and (iii) any other relevant equitable considerations;
provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party not guilty of such
fraudulent misrepresentation. Relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party
or the indemnified party and each such party's relative
intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The
Offerors and each of the Underwriters agree that it would
not be just and equitable if contributions pursuant to this
subparagraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be
required to contribute in excess of the amount equal to the
excess of (i) the total price at which the Preferred Trust
Securities underwritten by it were offered to the public,
over (ii) the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged
omission. The obligations of each Underwriter to contribute
pursuant to this Section 9 are several and not joint and
shall be in proportion to the principal amount of Preferred
Trust Securities set forth opposite its name in Schedule II
hereto.
10. Termination. This Agreement may be terminated, at
-----------
any time prior to the Closing Date, by the Representatives
if (a) after the date hereof and at or prior to the Closing
Date there shall have occurred any suspension or material
limitation of trading of any of the Company's securities on
the New York Stock Exchange, Inc. ("NYSE") or any general
suspension of trading in securities on the NYSE, the
American Stock Exchange, Inc. ("AMEX") or the NASDAQ Stock
Market, Inc. ("NASDAQ") or there shall have been established
by the NYSE, AMEX or NASDAQ or by the Commission or by any
federal or state agency or by the decision of any court, any
general limitation on prices for such trading or any general
restrictions on the distribution of securities, or a general
banking moratorium declared by New York or federal
authorities, or (b) there shall have occurred any (i) new
material outbreak of hostilities or (ii) new material other
national or international calamity or crisis, including, but
not limited to, an escalation of hostilities that existed
prior to the date of this Agreement or (iii) material
adverse change in the financial markets in the United
States, and the effect of any such event specified in clause
(a) or (b) above on the financial markets of the United
States shall be such as to make it impracticable, in the
reasonable judgment of the Representatives, for the
Underwriters to enforce contracts for the sale of the
Preferred Trust Securities. This Agreement may also be
terminated at any time prior to the Closing Date by the
Representatives if, in their reasonable judgment, the
subject matter of any amendment or supplement to the
Registration Statement or the Prospectus (other than an
amendment or supplement relating solely to the activity of
any Underwriter or Underwriters) prepared and issued by the
Company after the effectiveness of this Agreement shall have
disclosed a material adverse change in the business,
property or financial condition of the Company and its
subsidiaries, considered as a whole, whether or not in the
ordinary course of business, that has materially impaired the
marketability of the Preferred Trust Securities. Any
termination hereof pursuant to this Section 10 shall be
without liability of any party to any other party except as
otherwise provided in Sections 6(g) and 9 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
-------------
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement shall inure to the benefit of the Company,
the several Underwriters and, with respect to the provisions of
Section 9 hereof, each director, officer and controlling person
referred to in said Section 9, and their respective successors.
Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this
Agreement. The term "successor" as used herein shall not include
any purchaser, as such purchaser, of any of the Preferred Trust
Securities from any of the several Underwriters.
12. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 1601 Bryan Street,
Dallas, Texas 75201, Attention: Treasurer.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
TEXAS UTILITIES COMPANY
By
-------------------------------
TXU CAPITAL I
By
-------------------------------
(Authorized Representative)
Accepted and delivered as of
the date first above written
[ ]
By: [ ]
By:
-----------------------------------
<PAGE>
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives:
Designation: Preferred Trust Securities
Liquidation Preference Amount:
Date of Maturity:
Distribution Rate:
Purchase Price: $ per Preferred Trust
------
Public Offering Price: $ per Preferred Trust
------
<PAGE>
SCHEDULE II
-----------
TXU Capital I
Preferred Trust Securities due ,
---------- ----
Liquidation Amount of the
Name Preferred Trust Securities
---- --------------------------
$
$
$
-----------
Total $
============
<PAGE>
SCHEDULE III
------------
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
, 1998
----------
[Underwriters]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o [Name]
[Address]
Re: TXU Capital I
-------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Texas
Utilities Company, a Texas corporation (the "Company"), and TXU
Capital I, a Delaware business trust (the "Trust"), in connection
with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
December 3, 1998 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on December 3, 1998;
(b) The Trust Agreement of the Trust, dated as of
December 3, 1998, by and among the Company and the trustees of
the Trust named therein;
(c) The Prospectus, dated , 1998, and the
----------
Prospectus Supplement, dated , 1998 (jointly, the
----------
"Prospectus"), relating to the Preferred Trust Securities of the
Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Trust Security" and
collectively, the "Preferred Trust Securities");
(d) The Amended and Restated Trust Agreement of the
Trust, dated as of , 1998 (including Exhibits A, B and D
---------
thereto) (the "Trust Agreement"), among the Company, the trustees
of the Trust named therein (the "Trustees") and the holders, from
time to time, of undivided beneficial interests in the assets of
the Trust;
(e) The Underwriting Agreement, dated , 1998
----------
(the "Underwriting Agreement"), among the Company, the Trust and
the Underwriters named in Schedule II thereto; and
(f) A Certificate of Good Standing for the Trust,
dated , 1998, obtained from the Secretary of State.
----------
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above, which we believe are all the documents
necessary or appropriate for us to have considered for the
purposes of rendering the opinions stated herein. In particular,
we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to
in or incorporated by reference into the documents reviewed by
us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the
opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein, all
of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Trust Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Trust Agreement and the Certificate
are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due
creation, due formation or due organization, as the case may be,
and the valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, formation or organization, (iii) the
legal capacity of natural persons who are parties to the
documents examined by us, (iv) except to the extent set forth in
paragraph 2 below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent provided in paragraph 4 below, that each
of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Trust Security is to
be issued by the Trust (the "Preferred Trust Security Holders")
of a Preferred Trust Securities Certificate for the Preferred
Trust Security and the payment for the Preferred Trust Security
acquired by it, in accordance with the Trust Agreement, and as
described in the Prospectus, (vii) that the Preferred Trust
Securities are issued and sold to the Preferred Trust Security
Holders in accordance with the Trust Agreement, and as described
in the Prospectus, (viii) the receipt by the Person (the "Common
Security Holder") to whom a Common Security of the Trust
representing common undivided beneficial interests in the assets
of the Trust (each, a "Common Security" and collectively, the
"Common Securities") (the Preferred Trust Securities and the
Common Securities being hereinafter collectively referred to as
"Trust Securities") is to be issued by the Trust of a Common
Securities Certificate for the Common Security and the payment
for the Common Security acquired by it, in accordance with the
Trust Agreement, and as described in the Prospectus, (ix) that
the Common Securities are issued and sold to the Common Security
Holder in accordance with the Trust Agreement, and as described
in the Prospectus, (x) that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware trustee as
required by the Delaware Business Trust Act and filing documents
with the Secretary of State) or employees in the State of
Delaware, and (xi) that the Trust is treated as a grantor trust
for federal income tax purposes. We have not participated in the
preparation of the Prospectus and assume no responsibility for
its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of
the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the
Trust Agreement, the Trust has the trust power and authority to
(i) own property and conduct its business, all as described in
the Prospectus, (ii) execute and deliver, and perform its
obligations under, the Underwriting Agreement, and (iii) issue,
and perform its obligations under, the Trust Securities.
3. The Trust Agreement is a legal, valid and binding
agreement of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its
terms.
4. Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery of the Underwriting
Agreement by the Trust, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all
requisite trust action on the part of the Trust.
5. No authorization, approval, consent or order of
any Delaware court or Delaware governmental authority or Delaware
agency is required to be obtained by the Trust solely in
connection with the issuance and sale of the Preferred Trust
Securities.
6. The Preferred Trust Securities have been duly
authorized by the Trust Agreement and, when issued and sold in
accordance with the Trust Agreement, the Preferred Trust Securities
will be, subject to the qualifications set forth in paragraph 7
below, fully paid and nonassessable undivided beneficial interests
in the assets of the Trust.
7. The Preferred Trust Security Holders, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Trust Security Holders may be obligated, pursuant to
the Trust Agreement, to (i) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Trust Securities
Certificates and the issuance of replacement Preferred Trust
Securities Certificates, and (ii) provide security or indemnity
in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust
Agreement.
8. Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Preferred Trust Securities
is not subject to preemptive rights.
9. The issuance and sale by the Trust of the Trust
Securities, the execution, delivery and performance by the Trust
of the Underwriting Agreement, the consummation by the Trust of
the transactions contemplated thereby and the compliance by the
Trust with its obligations thereunder do not violate (i) any of
the provisions of the Certificate or the Trust Agreement, or (ii)
any applicable Delaware law or Delaware administrative
regulation.
10. The Preferred Trust Security Holders (other than
those Preferred Trust Security Holders who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result
of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
The opinion expressed in paragraph 3 above is subject,
as to enforcement, to the effect upon the Trust Agreement of
(i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer
and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless
of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to Winthrop, Stimson, Putnam &
Roberts' and Thelen Reid & Priest LLP's relying as to matters of
Delaware law upon this opinion in connection with opinions to be
rendered by them on the date hereof pursuant to the Underwriting
Agreement. Further, we consent to the reliance by The Bank of
New York (in its capacity as Debenture Trustee under the
Subordinated Indenture, as trustee under the Guarantee, and as
Property Trustee under the Trust Agreement) and The Bank of New
York (Delaware) (in its capacity as Delaware Trustee under the
Trust Agreement) as to matters of Delaware law upon this opinion
in connection with the matters set forth herein. Except as
stated above, without our prior written consent, this opinion may
not be furnished or quoted to, or relied upon by, any other
Person for any purpose.
Very truly yours,
<PAGE>
Schedule IV
[LETTERHEAD OF WORSHAM, FORSYTHE & WOOLDRIDGE, L.L.P.]
, 1998
----------
[Names]
as Representatives of Underwriters named in Schedule II
to the Underwriting Agreement, as herein defined
c/o [Name]
[Address]
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Company (the "Company") in connection with the transactions
contemplated by the Underwriting Agreement dated , 1998
----------
among the Company, TXU Capital I (the "Trust") and you (the
"Underwriting Agreement"), including, among others, (i) the
issuance by the Trust, a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act"), of
Preferred Trust Securities (the "Preferred Trust Securities")
having an aggregate liquidation preference amount of
$ , (ii) the issuance by the Company of
--------------
$ principal amount of its Junior Subordinated
---------------
Debentures, Series (the "Debentures") and (iii) the guarantee
--
by the Company of the Preferred Trust Securities pursuant to a
Guarantee Agreement, dated the date hereof, between the Company
and The Bank of New York, as trustee (the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a corporation duly authorized,
validly existing and in good standing under the laws of the State
of Texas, and has the corporate power and authority: (a) to
execute, deliver and perform its obligations under the
Underwriting Agreement and the Indenture, (b) to issue the
Debentures and the Guarantee and to incur the indebtedness to be
evidenced thereby and (c) to own its property and assets and to
conduct the business which it is now conducting;
2. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
3. The Indenture, the Trust Agreement and the Guarantee
have been duly qualified under the Trust Indenture Act.
4. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity.
5. The Guarantee has been duly authorized, executed and
delivered by the Company, and is enforceable against the Company
in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
6. The statements made in the Prospectus under the
captions "Description of the Preferred Trust Securities,"
"Description of the Junior Subordinated Debentures," "Description
of the Guarantee", "Certain Terms of the " and
--------------
"Certain Terms of the Series A Debentures", insofar as such
statements constitute summaries of the legal matters or documents
referred to therein, are accurate in all material respects;
7. Neither the Company nor the Trust is, or after giving
effect to the issuance and sale of the Capital Securities will
be, directly or indirectly controlled by, or acting on behalf of
any person which is, an investment company within the meaning of
the Investment Company Act of 1940, as amended.
8. The Trust is duly qualified to transact business in
the State of Texas as a foreign limited liability company. Under
Texas law, the liability, if any, of holders of Preferred Trust
Securities for the debts, liabilities and obligations of the
Trust for which they are not otherwise liable by statute or
agreement will be governed by the Delaware Act.
9. Other than as stated in the Registration Statement
and the Prospectus, there are no material pending legal
proceedings to which the Company is a party or of which property
of the Company is the subject which depart from the ordinary
routine litigation incident to the kind of business conducted by
the Company, and to our best knowledge no such proceedings are
contemplated;
10. The Registration Statement, and the Prospectus at the
time it was filed with the Commission pursuant to Rule 424 under
the Securities Act (except for financial statements and schedules
and other financial and statistical data contained or
incorporated by reference therein and except for that part of the
Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) complied as to form in all
material respects with the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder;
the Incorporated Documents (except as to the financial statements
and schedules and other financial and statistical data contained
therein, as to which we do not express any belief), at the time
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and
the applicable instructions, rules and regulations of the
Commission thereunder; and the Registration Statement has become
and is effective under the Securities Act and, to our best
knowledge, no proceedings for a stop order with respect thereto
are pending or threatened under Section 8 of the Securities Act.
11. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
12. Each Principal Subsidiary (as defined below) of the
Company has been incorporated and is validly existing and
subsisting as a corporation under the laws of the jurisdiction of
its incorporation; each Principal Subsidiary of the Company has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and
as set forth in or contemplated by the Prospectus, and to our
knowledge, is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as a whole; and except as set forth in
or contemplated by the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of each Principal
Subsidiary of the Company has been authorized and is non-
assessable and, to our knowledge, all such shares are validly
issued and fully paid and (except for directors' qualifying
shares) are owned by the Company, directly or through is
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity other than those
ordinary shares of TU Finance (No. 2) Limited, TU Acquisitions
PLC, The Energy Group Limited and Energy Holdings (No. 3) Limited
acquired indirectly by the Company, which have been pledged as
collateral for borrowings made by subsidiaries. For purposes of
this opinion, the term "Principal Subsidiary" shall mean,
collectively, the following companies: Eastern Energy Limited,
Texas Utilities Australia Pty. Ltd., The Energy Group Limited,
Eastern Group plc, Eastern Electricity plc, Eastern Generation
Limited, Eastern Natural Gas Limited, Eastern Power and Energy
Trading Limited, Texas Energy Industries, Inc., ENSERCH
Corporation, Lufkin-Conroe Communications Co., Southwestern
Electric Service Company, Texas Utilities Electric Company, Texas
Utilities Fuel Company, Texas Utilities Mining Company and Texas
Utilities Services Inc.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives and
certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte &
Touche LLP, the independent certified public accountants who
audited certain of the financial statements of the Company
incorporated by reference in the Registration Statement and the
Prospectus, and with Ernst & Young, the independent certified
public accountants who audited certain of the financial
statements of Energy Holdings (No. 3) Limited (formerly known as
The Energy Group PLC) incorporated by reference in the
Registration Statement and the Prospectus, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in paragraph 6 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data and
except for that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any
belief) (i) the Registration Statement, as of the Effective Date,
included an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) the
Prospectus at the time it was filed with the Commission pursuant
to Rule 424, included, or on the date hereof includes an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the State Bar of Texas and do not hold
ourselves out as experts in the laws of the State of New York.
As to all matters of New York law, we have, with your consent,
relied upon the opinion of Thelen Reid & Priest LLP, New York,
New York, of Counsel to the Company; as to matters of the law of
the United Kingdom, we have, with your consent relied upon the
opinions of M.C. Murray, London, England, General Counsel and
Secretary of The Energy Group Limited and E.J. Lean, Group
Solicitor of Eastern Group plc, and as to all matters of law of
the Commonwealth of Australia we have with your consent relied
upon the opinion of Baker & McKenzie, Sidney, Commonwealth of
Australia, Counsel to Texas Utilities Australia Pty. Ltd.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE, L.L.P.
By:
----------------------------
A Partner
<PAGE>
Schedule V
[LETTERHEAD OF THELEN REID & PRIEST LLP]
New York, New York
, 1998
----------
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o [Name]
[Address]
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company (the
"Company") in connection with the transactions contemplated by
the Underwriting Agreement dated , 1998 among the
----------
Company, TXU Capital I (the "Trust") and you (the "Underwriting
Agreement"), including, among others, (i) the issuance by the
Trust, a statutory business trust organized under the Delaware
Business Trust Act (the "Delaware Act") of Preferred Trust
Securities (the "Preferred Trust Securities") having an aggregate
liquidation preference amount of $ , (ii) the
---------------
issuance by the Company of $ principal amount of
---------------
its Subordinated Junior Debentures, Series (the "Debentures")
--
and (iii) the guarantee by the Company of the Preferred Trust
Securities pursuant to a Guarantee Agreement, dated the date
hereof, between the Company and The Bank of New York, as trustee
(the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these transactions
and with the affairs and properties of the Company generally, we
are of the opinion that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
2. The Indenture, the Trust Agreement and the Guarantee
have been duly qualified under the Trust Indenture Act;
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity;
4. The Guarantee has been duly authorized, executed and
delivered by the Company, and is enforceable against the Company
in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the rights and remedies of creditors
generally and of general principles of equity;
5. The statements made in the Prospectus under the
captions "Description of the Preferred Trust Securities,"
"Description of the Junior Subordinated Debentures,"
"Description of the Guarantee", "Certain Terms of the
" and "Certain Terms of the Series A Debentures"
----------------
insofar as such statements constitute summaries of the legal
matters or documents referred to therein, are accurate in all
material respects;
6. Neither the Company nor the Trust is, or after giving
effect to the issuance and sale of the Preferred Trust Securities
will be, directly or indirectly controlled by, or acting on
behalf of any person which is, an investment company within the
meaning of the Investment Company Act of 1940, as amended;
7. The Registration Statement, as amended, as of the
Effective Date, and the Prospectus at the time it was filed with
the Commission pursuant to Rule 424 (except for the financial
statements and schedules and other financial and statistical data
contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the
Forms T-1, as to which we do not express any belief) complied as
to form in all material respects with the Securities Act and the
applicable instructions, rules and regulations of the Commission
thereunder; the Incorporated Documents (except as to the
financial statements and schedules and other financial and
statistical data contained therein, as to which we do not express
any belief), at the time they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the
Securities Act and, to our best knowledge, no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
8. No other approval, authorization, consent or order of
any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
We herewith confirm as our opinion the statements under
the caption "Certain United States Federal Income Tax
Consequences Relating to the Preferred Trust Securities" in the
Prospectus.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives, and
certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte &
Touche LLP, the independent certified public accountants who
audited certain of the financial statements of the Company
incorporated by reference in the Registration Statement and the
Prospectus, with Ernst & Young, the independent certified public
accountants who audited certain of the financial statements of
Energy Holdings (No. 3) Limited (formerly known as The Energy
Group PLC) incorporated by reference in the Registration
Statement and the Prospectus, and with certain of your officers
and employees and your counsel, but we made no independent
verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in the immediately
preceding paragraph and in paragraph 5 above. However, our
examination of the information relating to the Company contained
in the Registration Statement and the Prospectus and our
discussions did not disclose to us anything which gives us reason
to believe that (except for financial statements and schedules
and financial and statistical data and except for that part of
the Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) (i) the Registration
Statement, as of the Effective Date, included an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or (ii) the Prospectus at the time it was filed
with the Commission pursuant to Rule 424, included or on the date
hereof includes an untrue statement of a material fact or on such
dates omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Worsham, Forsythe & Wooldridge, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
THELEN REID & PRIEST LLP
<PAGE>
SCHEDULE VI
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
, 1998
----------
[Names]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement as defined herein
c/o [Names]
[Address]
Ladies and Gentlemen:
We have acted as counsel to you and the several
Underwriters in connection with the transactions contemplated by
the Underwriting Agreement dated , 1998 between Texas
----------
Utilities Company (the "Company"), TXU Capital I (the "Trust")
and you (the "Underwriting Agreement") in which (i) the Trust, a
statutory business trust organized under the Delaware Business
Trust Act, proposes to issue $ aggregate
---------------
liquidation preference amount of its Preferred Trust Securities
(the "Preferred Trust Securities"), (ii) the Company proposes to
issue $ principal amount of its Floating Rate
---------------
Junior Subordinated Debentures, Series , (the "Debentures") and
--
(iii) the Company proposes to guarantee the Preferred Trust
Securities to the extent described in the Prospectus. Terms not
otherwise defined herein are used with the meanings ascribed to
them in the Underwriting Agreement.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Worsham, Forsythe & Wooldridge,
L.L.P., Dallas, Texas, General Counsel for the Company, as to the
matters covered in such opinion relating to Texas law. We have
reviewed such opinion and believe that it is satisfactory and
that you and we are justified in relying thereon. We understand
that you are relying, for all matters of Delaware law, upon an
opinion of even date herewith addressed to you by Richards,
Layton & Finger, P.A., Delaware Counsel for the Company.
We have, in addition, examined the documents described in
the list of closing papers as having been delivered to you at the
closing and such other documents and satisfied ourselves as to
such other matters as we have deemed necessary in order to enable
us to express this opinion. As to various questions of fact
material to this opinion, we have relied upon representations of
the Company and statements in the Registration Statement
hereinafter mentioned. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us and the genuineness and conformity to original
documents of documents submitted to us as certified or
photostatic copies.
Based upon the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
2. The Indenture has been duly qualified under the Trust
Indenture Act.
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, receivership, moratorium
and other laws affecting the rights and remedies of creditors
generally and of general principles of equity.
4. The Guarantee has been duly authorized, executed and
delivered by the Company, and is enforceable against the Company
in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of
equity.
5. The statements made in the Prospectus under the
captions "Description of the Preferred Trust Securities,"
"Description of the Junior Subordinated Debentures," "Description
of the Guarantee", "Certain Terms of the ", and
-----------------
"Certain Terms of the Series A Debentures", insofar as such
statements constitute summaries of the legal matters or documents
referred to therein, are accurate in all material respects.
6. Neither the Company nor the Trust is, or after giving
effect to the issuance and sale of the Preferred Trust
Securities, will be, and neither the Company nor the Trust is
directly or indirectly controlled by, or acting on behalf of any
person which is, an investment company within the meaning of the
Investment Company Act of 1940.
7. No other approval, authorization, consent or order of
any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee as contemplated in the
Underwriting Agreement.
8. The Registration Statement, as amended, at the
Effective Date, and the Prospectus at the time it was filed with
the Commission pursuant to Rule 424 (except in each case as to
financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein
and except for that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any
opinion), complied as to form in all material respects with the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 5 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of its officers and representatives,
and representatives of certain of its subsidiaries, with counsel
for the Company, with Deloitte & Touche LLP, the independent
public accountants who audited certain of the financial
statements of the Company incorporated by reference in the
Registration Statement and the Prospectus, with Ernst & Young,
the independent public accountants who audited certain of the
financial statements of Energy holdings (No. 3) Limited (formerly
known as The Energy Group PLC) incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your representatives. Our examination of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that at
the Effective Date the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time it was
filed with the Commission pursuant to Rule 424, or at the date
hereof, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any belief as to the financial statements or other
financial or statistical data contained or incorporated by
reference in the Registration Statement or Prospectus or as to
that part of the Registration Statement that constitutes the
Forms T-1.
This opinion is given to you solely for the use of the
several Underwriters in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon by any other person or for any other purpose.
Very truly yours,
Exhibit 4(c)
------------------------------------------
TEXAS UTILITIES COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
---------
INDENTURE
(FOR UNSECURED DEBT SECURITIES SERIES )
-
DATED AS OF 1, 199
------- -
------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . 7
Note: This table of contents shall not, for any purpose, be
deemed to be part of the Indenture.
<PAGE>
Stated Interest Rate . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . 13
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 14
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . 21
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . 23
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . 24
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 25
SECTION 309. Cancellation by Security Registrar . . . . . . 25
SECTION 310. Computation of Interest . . . . . . . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . . . . . . 26
SECTION 312. Extension of Interest Payment . . . . . . . . . 26
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article . . . . . . . . . . . 26
SECTION 402. Election to Redeem; Notice to Trustee . . . . . 27
SECTION 403. Selection of Securities to Be Redeemed . . . . 27
SECTION 404. Notice of Redemption . . . . . . . . . . . . . 28
SECTION 405. Securities Payable on Redemption Date . . . . . 29
SECTION 406. Securities Redeemed in Part . . . . . . . . . . 29
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article . . . . . . . . . . . 30
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . 30
SECTION 503. Redemption of Securities for Sinking Fund . . . 30
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest . . 31
SECTION 602. Maintenance of Office or Agency . . . . . . . . 31
SECTION 603. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . 32
SECTION 604. Corporate Existence . . . . . . . . . . . . . . 33
SECTION 605. Maintenance of Properties . . . . . . . . . . . 34
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . . . 34
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . 34
SECTION 608. Limitation on Liens . . . . . . . . . . . . . . 35
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities . . . 37
SECTION 702. Satisfaction and Discharge of Indenture . . . . 40
SECTION 703. Application of Trust Money . . . . . . . . . . 41
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default . . . . . . . . . . . . . . . 41
SECTION 802. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . 43
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 44
SECTION 804. Trustee May File Proofs of Claim . . . . . . . 44
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . 45
SECTION 806. Application of Money Collected . . . . . . . . 45
SECTION 807. Limitation on Suits . . . . . . . . . . . . . . 46
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . 47
SECTION 809. Restoration of Rights and Remedies . . . . . . 47
SECTION 810. Rights and Remedies Cumulative . . . . . . . . 47
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . 47
SECTION 812. Control by Holders of Securities . . . . . . . 47
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . 48
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . 48
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . 49
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities . . . . . . 49
SECTION 902. Notice of Defaults . . . . . . . . . . . . . . 50
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . 50
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . 51
SECTION 905. May Hold Securities . . . . . . . . . . . . . . 51
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . 51
SECTION 907. Compensation and Reimbursement . . . . . . . . 52
SECTION 908. Disqualification; Conflicting Interests. . . . 52
SECTION 909. Corporate Trustee Required; Eligibility . . . . 53
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 54
SECTION 911. Acceptance of Appointment by Successor . . . . 55
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 57
SECTION 913. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . 57
SECTION 914. Co-trustees and Separate Trustees. . . . . . . 57
SECTION 915. Appointment of Authenticating Agent . . . . . . 59
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . 61
SECTION 1002. Reports by Trustee and Company . . . . . . . . 61
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . 61
SECTION 1102. Successor Corporation Substituted . . . . . . 62
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . 62
SECTION 1202. Supplemental Indentures With Consent
of Holders . . . . . . . . . . . . . . . . . 64
SECTION 1203. Execution of Supplemental Indentures . . . . . 66
SECTION 1204. Effect of Supplemental Indentures . . . . . . 66
SECTION 1205. Conformity With Trust Indenture Act . . . . . 66
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 66
SECTION 1207. Modification Without Supplemental Indenture . 66
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called . . 67
SECTION 1302. Call, Notice and Place of Meetings . . . . . . 67
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . 68
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . 68
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . 69
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . 70
SECTION 1307. Action Without Meeting . . . . . . . . . . . . 70
ARTICLE FOURTEEN
Immunity of Incorporators, Shareholders, Officers and Directors
SECTION 1401. Liability Solely Corporate . . . . . . . . . . 70
ARTICLE FIFTEEN
Series Notes
-
SECTION 1501. Designation of Series Notes . . . . . . . . 71
-
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 72
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 73
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 74
<PAGE>
TEXAS UTILITIES COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF 1, 199
------- -
TRUST INDENTURE ACT SECTION INDENTURE SECTION
S.310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 908
910
S.311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
S.312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
S.313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
S.314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
S.315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 814
S.316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 808
S.317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 603
S.318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of 1, 199 , between TEXAS
------- -
UTILITIES COMPANY, a corporation duly organized and existing
under the laws of the State of Texas (herein called the
"Company"), having its principal office at Energy Plaza, 1601
Bryan Street, Dallas, Texas 75201, and THE BANK OF NEW YORK, a
banking corporation of the State of New York, having its
principal corporate trust office at 101 Barclay Street, New York,
New York 10286, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), in an unlimited
aggregate principal amount to be issued in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"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 through
one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities or Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other officer or agent of the Company duly
authorized by the Board of Directors to act in respect of matters
relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution and delivery of this Indenture is located at
101 Barclay Street, New York, New York 10286.
"CORPORATION" means a corporation, association,
company, limited liability company, joint stock company or
business trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section
801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States and entitled to the benefit
of the full faith and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or
examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of a particular series of Securities
established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"MATURITY", when used with respect to any Security, means
the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company, or other counsel acceptable to
the Trustee.
"OUTSTANDING", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to
the Security Registrar for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company
or of such other obligor (unless the Company, such Affiliate
or such obligor owns all Securities Outstanding under this
Indenture, or (except for the purposes of actions to be
taken by Holders of (i) more than one series voting as a
class under Section 812 or (ii) more than one series or more
than one Tranche, as the case may be, voting as a class
under Section 1202) all Outstanding Securities of each such
series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor; and
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium,
if any, or interest, if any, on any Securities on behalf of the
Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"PERSON" means any individual, corporation, partnership,
joint venture, trust or unincorporated organization or any
Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, or any Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to
Section 602, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section
311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in
part by such Security.
"STATED MATURITY", when used with respect to any obligation
or any installment of principal thereof or interest thereon,
means the date on which the principal of such obligation or such
installment of principal or interest is stated to be due and
payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"SUBSIDIARY" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal
amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"TRUSTEE" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall
have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities
of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action (including any
covenants compliance with which constitutes a condition
precedent) have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture 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.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided
by this Indenture to be made, given or taken by Holders may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may,
and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by
the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of
record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to
time designate, or transmitted by certified or registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street 21W
New York, New York 10286
Attention: Vice President, Corporate
Trust Administration
Telephone: (212) 815-5375
Telecopy: (212) 815-5915
If to the Company, to:
Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Attention: Treasurer
Telephone: (214) 812-4646
Telecopy: (214) 812-3366
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by certified or
registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, EXCEPT TO THE EXTENT THAT THE LAW OF ANY OTHER JURISDICTION
SHALL BE MANDATORILY APPLICABLE.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment, with the same force and effect, and in the
same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be,
and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections
301 or 1201(g), the Securities of each series shall be issuable
in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the
officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
Dated:
-----------------------------
as Trustee
By:
--------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there
shall be established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate pursuant
to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series, or any Tranche thereof, is
payable or any formulary or other method or other means by
which such date or dates shall be determined, by reference
to an index or other fact or event ascertainable outside of
this Indenture or otherwise (without regard to any
provisions for redemption, prepayment, acceleration,
purchase or extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate
or rates shall be determined, by reference to an index or
other fact or event ascertainable outside of this Indenture
or otherwise; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if
any, for the interest payable on such Securities on any
Interest Payment Date; the right of the Company, if any, to
extend the interest payment periods and the duration of any
such extension as contemplated by Section 312; and the basis
of computation of interest, if other than as provided in
Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series, or any Tranche thereof,
shall be payable, (2) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or
upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar for such series or Tranche;
and if such is the case, that the principal of such
Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of
such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or
other mandatory redemption provisions or at the option of a
Holder thereof and the period or periods within which or the
date or dates on which, the price or prices at which and the
terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series, or any Tranche thereof, shall be payable (if
other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be payable at
the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such
securities or other property, or the formulary or other
method or other means by which such amount shall be
determined, and the period or periods within which, and the
terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series, or any Tranche thereof, may be determined
with reference to an index or other fact or event
ascertainable outside of this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, or
any Tranche thereof, in addition to those set forth in
Article Six;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in respect of
the Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of
temporary form and (iii) any and all other matters
incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof;
(v) any collateral security, assurance or guarantee
for the Securities of such series;
(w) the non-applicability of Section 608 to the
Securities of such series or any exceptions or modifications
of Section 608 with respect to the Securities of such
series;
(x) any rights or duties of another Person to assume
the obligations of the Company with respect to the
Securities of such series (whether as joint obligor, primary
obligor, secondary obligor or substitute obligor) and any
rights or duties to discharge and release any obligor with
respect to the Securities of such series or the Indenture to
the extent related to such series; and
(y) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer and may have the corporate seal
of the Company affixed thereto or reproduced thereon attested by
any other Authorized Officer or by the Secretary or an Assistant
Secretary of the Company. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers or the Secretary or an Assistant Secretary of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or
(ii) in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the
Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in
accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have
been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued and delivered by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been
duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company,
entitled to the benefits provided by this Indenture,
and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders
or pursuant to such procedures (acceptable to the
Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been
duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will have been duly issued under this
Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits
provided by the Indenture, and enforceable in
accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws, and
to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form,
terms thereof and the legality, validity, binding effect and
enforceability thereof, and compliance of the authentication and
delivery thereof with the terms and conditions of this Indenture,
upon the Opinion of Counsel and other documents delivered
pursuant to Sections 201 and 301 and this Section, as applicable,
at or prior to the time of the first authentication of Securities
of such series unless and until such opinion or other documents
have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of
a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any
applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, no Security shall
be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating
Agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities for such exchange, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver
in exchange therefor definitive Securities of the same series and
Tranche of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series, a register (all registers kept in
accordance with this Section being collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series, or any Tranche
thereof, and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for
the Securities of each series on a consolidated basis, and such
Person is referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its
offices as an office in which a register with respect to the
Securities of one or more series shall be maintained, and the
Company may designate itself the Security Registrar with respect
to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon surrender for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, any Security of such series or Tranche may be
exchanged at the option of the Holder, for one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, or any Tranche
thereof, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice of
redemption of the Securities of such series or Tranche is to be
given or (b) any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Subject to Section 312, any interest on any Security of
any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall promptly cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest, if any, on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with the customary practices of the Security Registrar
at the time in effect, and the Security Registrar shall not be
required to destroy any such certificates. The Security Registrar
shall promptly deliver a certificate of disposition to the
Trustee and the Company unless, by a Company Order, similarly
delivered, the Company shall direct that canceled Securities be
returned to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance with
this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months
and for any period shorter than a full month, on the basis of the
actual number of days elapsed in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium or
interest thereon, shall not be discharged or satisfied by any
tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the
case of its negligence or willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the
Securities of any series hereunder, to extend interest payment
periods on all Securities of one or more series, if so specified
as contemplated by Section 301 with respect to such Securities
and upon such terms as may be specified as contemplated by
Section 301 with respect to such Securities.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction
or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series, or, in the absence of any such provision, by
such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of
such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if,
as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the Trustee,
if so directed by Company Order, shall select for redemption all
or any principal amount of such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner
provided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment with respect to the Securities of such series; provided,
however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash; and
(e) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities
to be so delivered.
If the Company shall have not delivered such Officer's
Certificate and, to the extent applicable, all such Securities,
the next succeeding sinking fund payment for such series or
Tranche shall be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections
405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than 1 in each year, commencing 1,
---- ----
, the Company shall deliver to the Trustee an Officer's
----
Certificate which need not comply with Section 102, executed by
the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture, and making any other
statements as may be required by the provisions of Section
314(a)(4) of the Trust Indenture Act.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in (a)
Section 602 or any additional covenant or restriction specified
with respect to the Securities of any series, or any Tranche
thereof, as contemplated by Section 301, if before the time for
such compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered
as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the Holders
of a majority in principal amount of Securities Outstanding under
this Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
SECTION 608. LIMITATION ON LIENS.
(a) Except as otherwise specified as contemplated by
Section 301 for Securities of any series, so long as any
Securities of any series are Outstanding, the Company will not
pledge, mortgage, hypothecate or grant a security interest in, or
permit any mortgage, pledge, security interest or other lien
upon, any capital stock of any Subsidiary now or hereafter owned
by the Company, to secure any Indebtedness (hereinafter defined)
without making effective provision whereby the Outstanding
Securities shall (so long as such other Indebtedness shall be so
secured) be equally and ratably secured with any and all such
other Indebtedness and any other indebtedness similarly entitled
to be equally and ratably secured; provided, however, that this
restriction shall not apply to nor prevent the creation or
existence of:
(1) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock created at the time
of the acquisition of such capital stock by the Company or
within one year after such time to secure all or a portion
of the purchase price for such capital stock;
(2) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock existing thereon at
the time of the acquisition thereof by the Company (whether
or not the obligations secured thereby are assumed by the
Company); or
(3) any extension, renewal of refunding of any
mortgage, pledge, security interest, lien or encumbrance
permitted by Subsection (1) or (2) above on capital stock of
any Subsidiary theretofore subject thereto (or substantially
the same capital stock) or any portion thereof.
(4) any judgment, levy, execution, attachment or other
similar lien arising in connection with court proceedings,
provided that either
(i) the execution or enforcement of each such
lien is effectively stayed within 30 days after entry
of the corresponding judgment (or the corresponding
judgment has been discharged within such 30 day period)
and the claims secured thereby are being contested in
good faith by appropriate proceedings timely commenced
and diligently prosecuted;
(ii) the payment of each such lien is covered in
full by insurance and the insurance company has not
denied or contested coverage thereof; or
(iii) so long as each such lien is adequately
bonded, any appropriate legal proceedings that may have
been duly initiated for the review of the corresponding
judgment, decree or order shall not have been fully
terminated or the period within which such proceedings
may be initiated shall not have expired.
For purposes of this Section 608, "Indebtedness" means
all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by the
Company for the repayment of money borrowed. All indebtedness
for money borrowed secured by a lien upon property owned by the
Company and upon which indebtedness for money borrowed the
Company customarily pays interest, although the Company has not
assumed or become liable for the payment of such indebtedness for
money borrowed, shall for purposes of this Section 608 be deemed
to be Indebtedness of the Company. All indebtedness of others
for money borrowed which is guaranteed as to payment of principal
by the Company or in effect guaranteed by the Company through a
contingent agreement to purchase such indebtedness for money
borrowed shall for purposes of this Section 608 be deemed to be
Indebtedness of the Company, but no other contingent obligation
of the Company in respect of indebtedness for money borrowed or
other obligations incurred by others shall for purposes of this
Section 608 be deemed to be Indebtedness of the Company.
In case the Company shall propose to pledge, mortgage,
hypothecate or grant a security interest in any capital stock of
any Subsidiary owned by the Company to secure any Indebtedness,
other than as permitted by Subsections (a)(1) to (a)(3),
inclusive, of this Section, the Company will prior thereto give
written notice thereof to the Trustee, and the Company will prior
to or simultaneously with such pledge, mortgage, hypothecation or
grant of security interest, by supplemental indenture executed to
the Trustee (or to the extent legally necessary to another
trustee or an additional or separate trustee), in form
satisfactory to the Trustee, effectively secure (for so long as
such other Indebtedness shall be so secured) all the Securities
equally and ratably with such Indebtedness and with any other
indebtedness for money borrowed similarly entitled to be equally
and ratably secured.
(b) Except as otherwise specified as contemplated by
Section 301 for Securities of any series, the provisions of
Subsection (a) of this Section 608 shall not apply in the event
that the Company or any Subsidiary shall pledge, mortgage,
hypothecate or grant a security interest in or other lien upon
any capital stock of any Subsidiary now or hereafter owned by the
Company to secure any Indebtedness which would otherwise be
subject to the foregoing restriction up to an aggregate amount
which, together with all other Indebtedness (other than
mortgages, pledges, security interests, liens or encumbrances
permitted by Subsection (a) of this Section 608) which would
otherwise be subject to the foregoing restriction, does not at
the time exceed 5% of Consolidated Capitalization.
For purposes of this Section 608:
(1) The term "Consolidated Capitalization" means the
sum obtained by adding (i) Consolidated Shareholders'
Equity, (ii) Consolidated Indebtedness for money borrowed
(exclusive of any thereof which is due and payable within
one year of the date such sum is determined) and, without
duplication, (iii) any preference or preferred stock of the
Company or any Consolidated Subsidiary which is subject to
mandatory redemption or sinking fund provisions.
(2) The term "Consolidated Shareholders' Equity" means
the total Assets of the Company and its Consolidated
Subsidiaries less all liabilities of the Company and its
Consolidated Subsidiaries. As used in this definition,
"liabilities" means all obligations which would, in
accordance with generally accepted accounting principles, be
classified on a balance sheet as liabilities, including
without limitation, (i) indebtedness secured by property of
the Company or any of its Consolidated Subsidiaries whether
or not the Company or such Consolidated Subsidiary is liable
for the payment thereof unless, in the case that the Company
or such Consolidated Subsidiary is not so liable, such
property has not been included among the Assets of the
Company or such Consolidated Subsidiary on such balance
sheet, (ii) deferred liabilities, (iii) indebtedness of the
Company or any of its Consolidated Subsidiaries that is
expressly subordinated in right and priority of payment to
other liabilities of the Company or such Consolidated
Subsidiary. As used in this definition, "liabilities"
includes preference or preferred stock of the Company or any
Consolidated Subsidiary only to the extent of any such
preference or preferred stock that is subject to mandatory
redemption or sinking fund provisions.
(3) The term "Consolidated Subsidiary" means at any
date any Subsidiary the financial statements of which under
generally accepted accounting principles would be
consolidated with those of the Company in its consolidated
financial statements as of such date.
(4) The "Assets" of any Person means the whole or any
part of its business, property, assets, cash and
receivables.
(5) The term "Consolidated Indebtedness" means total
indebtedness as shown on the consolidated balance sheet of
the Company and its Consolidated Subsidiaries.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order
stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the
Company, to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the
covenants contained in Sections 602 and 603) or any other
covenants made in respect of such Securities or portions thereof
as contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article Seven
shall survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Eligible Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, shall be required to
return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article Seven shall
survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or interest
payments on any such Eligible Obligations, shall be withdrawn or
used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, and
interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603; provided,
however, that, so long as there shall not have occurred and be
continuing an Event of Default, any cash received from such
principal or interest payments on such Eligible Obligations, if
not then needed for such purpose, shall, to the extent
practicable and upon Company Request, be invested in Eligible
Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys
and the principal of and interest on any other Eligible
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and
to become due on such Securities or portions thereof on and prior
to the Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as received, free
and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further,
that, so long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with this
Section on the Maturity of all such Securities in excess of the
amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over
to the Company free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have
occurred and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events:
(a) failure to pay interest, if any, on any Security
of such series within 30 days after the same becomes due and
payable; provided, however, that a valid extension of the
interest payment period by the Company as contemplated in
Section 312 of this Indenture shall not constitute a failure
to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series at its Maturity; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to
the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Securities of such
series but not applicable to all Outstanding Securities shall
have occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal amount
(or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount as may be
specified in the terms thereof as contemplated by Section 301) of
all Securities of such series and interest accrued thereon to be
due and payable immediately. If an Event of Default due to
default in the performance of any other of the covenants or
agreements herein applicable to all Outstanding Securities or an
Event of Default specified in Section 801(d) or (e) shall have
occurred and be continuing, either the Trustee or the Holders of
not less than 33% in principal amount of all Securities then
Outstanding (considered as one class), and not the Holders of the
Securities of any one of such series, may declare the principal
of all Securities and interest accrued thereon to be due and
payable immediately. As a consequence of each such declaration
(herein referred to as a declaration of acceleration) with
respect to Securities of any series, the principal amount (or
portion thereof in the case of Discount Securities) of such
Securities and interest accrued thereon shall become due and
payable immediately.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of
such series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest, if any, at
the rate or rates prescribed therefor in such
Securities;
(4) all amounts due to the Trustee under Section
907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the nonpayment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on any overdue principal and interest, at the rate or
rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect
of which or for the benefit of which such money shall have been
collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 907;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and
be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Sections 307 and 312)
interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in conflict
with any rule of law or with this Indenture. The Trustee may
take any other action, deemed proper by the Trustee, which is not
inconsistent with any such direction. Before proceeding to
exercise any right or power hereunder at the direction of such
Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The 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 Indenture
against the 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) No provision of this Indenture shall require the
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 against
such risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this
Indenture to the contrary, the duties and responsibilities
of the Trustee under this Indenture shall be subject to the
protections, exculpations and limitations on liability
afforded to the Trustee under the provisions of the Trust
Indenture Act.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series of which it has knowledge (within
meaning of Section 903(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; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 45 days
after the occurrence thereof. 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 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting in good faith 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 or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, 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 Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the 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 Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
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 Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the 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 Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the 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 Company, personally or by agent or
attorney;
(g) the 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
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 Trustee shall not be charged with knowledge of
any default or Event of Default, as the case may be, with
respect to the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the default or
Event of Default, as the case may be, or (2) written notice
of such default or Event of Default, as the case may be,
shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 908 and
913, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (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 the Trustee's negligence,
wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless
from and against, any loss, liability or expense reasonably
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, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d)
or Section 801(e), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 907 shall survive the
termination of this Indenture.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series or any securities of any series issued under
the Indenture (For Unsecured Debt Securities Series A) dated as
of October 1, 1997 of the Company to The Bank of New York, as
trustee, the Indenture (For Unsecured Debt Securities Series B)
dated as of October 1, 1997 of the Company to The Bank of New
York, as trustee, the Indenture (For Unsecured Debt Securities
Series C), dated as of January 1, 1998 of the Company to The Bank
of New York, as trustee, the Purchase Contract Agreement dated as
of July 1, 1998 of the Company to The Bank of New York, as agent,
attorney-in-fact and trustee, the Indenture (For Unsecured Debt
Securities Series D and Series E), dated as of July 1, 1998 of
the Company to The Bank of New York, as trustee, the Indenture
(For Unsecured Debt Securities Series F), dated as of October 1,
1998 of the Company to The Bank of New York, as trustee, or the
Indenture (For Unsecured Debt Securities Series G), dated as of
October 1, 1998 of the Company to The Bank of New York, as
trustee.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation 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 $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) 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 $50,000,000 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
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. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance
of appointment by the successor Trustee in accordance with
the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 after written request therefor by the Company or by
any Holder who has been a bona fide Holder for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written
request therefor by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who has
been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in Subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(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 Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to Subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor 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 Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
Subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
Subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this Subsection (f).
(g) The Company (or, should the Company fail so to act
promptly, the successor trustee at the expense of the
Company) shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written
notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names
and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its
corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and deliver
to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in Subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
Tranche thereof, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series or Tranche
issued upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
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 act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
------------------------
As Trustee
By
----------------------
As Authenticating
Agent
By
----------------------
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than 1 and 1 in
---- --------
each year, commencing 1, 199 , and at such other times
-------- -
as the Trustee may request in writing, the Company shall furnish
or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than 1 in each year, commencing
--------
1, 199 , the Trustee shall transmit to the Holders, the
-------- -
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding
---------
15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchange.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into
any other Person, or convey or otherwise transfer or lease
its properties and assets substantially as an entirety to any
Person, unless
(a) the Person formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a Person organized and validly existing
under the laws of the United States, any State thereof or
the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any,
and interest, if any, on all Outstanding Securities and the
performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such
transaction no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, or
other transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by
the Company into any other Person or any conveyance, or
other transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section
1101, the successor Person formed by such consolidation or
into which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all
as provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or
more specified series, or one or more specified Tranches
thereof, or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this
Indenture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series or Tranche Outstanding on the
date of such indenture supplemental hereto in any material
respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or when no
Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for all but not
part of the Securities; or
(f) to establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and
301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a noncertificated
system of registration for all, or any series or Tranche of,
the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities, or any Tranche thereof,
shall be payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company in respect of all
or any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, provided that such action shall not
adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one or
more changes to, or the elimination of, any provisions
hereof which, at the date of the execution and delivery
hereof or at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to
effect such changes or elimination, and the Company and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to evidence
such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act
of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of Securities
of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802, or change the coin or currency (or other property), in
which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on
or after the Redemption Date), without, in any such case,
the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche
thereof, the consent of the Holders of which is required for
any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements
of Section 1304 for quorum or voting, without, in any such
case, the consent of the Holders of each Outstanding
Security of such series or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof, except to increase the
percentages in principal amount referred to in this Section
or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b), 914 and
1201(h).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or one or more Tranches thereof, or which modifies
the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or the
elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental
Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company
or by the Holders of 33% in aggregate principal amount of
all of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
and Tranches in the amount above specified, as the case may
be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in Subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or any Tranche or
Tranches thereof, or by such of them as are not present at
the meeting in person or by proxy, and by the Company and
the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of
Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series and Tranches calling
the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without
further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
shareholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor
corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, shareholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE FIFTEEN
SERIES NOTES
-
SECTION 1501. DESIGNATION OF SERIES NOTES.
-
There is hereby created a series of Securities
designated " % Senior Notes due , " (herein
-- -------- ----
sometimes referred to as "Series Notes") and limited in
-
aggregate principal amount (except as contemplated in Section
301(b) hereof) to $ . The form and terms of the
-----------
Series Notes shall be established in an Officer's Certificate
-
pursuant to Sections 201 and 301.
-------------------------
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first
above written.
TEXAS UTILITIES COMPANY
By:
--------------------------------
Treasurer
THE BANK OF NEW YORK, Trustee
By:
--------------------------------
W.N. GITLIN
Vice President
Exhibit 4(d)
TEXAS UTILITIES COMPANY
OFFICER'S CERTIFICATE
Kirk R. Oliver, the Treasurer of Texas Utilities Company
(the "Company"), pursuant to the authority granted in the Board
Resolutions of the Company dated _________, 199_, and Sections
201, 301 and 1501 of the Indenture defined herein, does hereby
certify to The Bank of New York (the "Trustee"), as Trustee under
the Indenture of the Company (For Unsecured Debt Securities
Series _) dated as of _______ 1, 199_ (the "Indenture") that:
1. The securities of the first series to be issued under the
Indenture shall be designated "_____% Series _ Senior Notes
due ____" (the "Senior Notes of the First Series"). All
capitalized terms used in this certificate which are not
defined herein but are defined in the Indenture shall have
the meanings set forth in the Indenture;
2. The Senior Notes of the First Series shall be limited in
aggregate principal amount to $___________ at any time
Outstanding, except as contemplated in Section 301(b) of the
Indenture;
3. The Senior Notes of the First Series shall mature and the
principal shall be due and payable together with all accrued
and unpaid interest thereon on _______, ____;
4. The Senior Notes of the First Series shall be issued in the
denominations of $_____ [if other than denominations of
$1,000 and any integral multiple thereof];
5. The Senior Notes of the First Series shall bear interest at
the rate of _____% per annum payable [semi-annually]
[quarterly] on ___________ of each year (each, an "Interest
Payment Date") commencing on __________. Interest on the
Senior Notes of the First Series will accrue from
__________, 199_, but if interest has been paid on such
Senior Notes of the First Series, then from the most recent
Interest Payment Date to which interest has been paid or
duly provided for. In the event that any Interest Payment
Date is not a Business Day, then payment of interest payable
on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment
in respect of such delay), with the same force and effect as
if made on such Interest Payment Date;
6. Each installment of interest on a Senior Note of the First
Series shall be payable to the Person in whose name such
Senior Note of the First Series is registered at the close
of business on the __th day of the calendar month next
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Senior Notes of the First
Series. [Subject to paragraph 9 hereof,] Any installment of
interest on the Senior Notes of the First Series not
punctually paid or duly provided for shall forthwith cease
to be payable to the Holders of such Senior Notes of the
First Series on such Regular Record Date, and may be paid to
the Persons in whose name such Senior Notes of the First
Series are registered at the close of business on a Special
Record Date to be fixed by the Trustee for the payment of
such Defaulted Interest. Notice of such Defaulted Interest
and Special Record Date shall be given to the Holders of
such Senior Notes of the First Series not less than 10 days
prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Senior
Notes of the First Series may be listed, and upon such
notice as may be required by such exchange, all as more
fully provided in the Indenture;
7. The principal and each installment of interest on the Senior
Notes of the First Series shall be payable at, and
registration and registration of transfers and exchanges in
respect of the Senior Notes of the First Series may be
effected at, the office or agency of the Company in The City
of New York; provided that payment of interest may be made
at the option of the Company by check mailed to the address
of the persons entitled thereto. Notices and demands to or
upon the Company in respect of the Senior Notes of the First
Series may be served at the office or agency of the Company
in The City of New York. The Corporate Trust Office of the
Trustee will initially be the agency of the Company for such
payment, registration and registration of transfers and
exchanges and service of notices and demands and the Company
hereby appoints the Trustee as its agent for all such
purposes; provided, however, that the Company reserves the
right to change, by one or more Officer's Certificates, any
such office or agency and such agent. The Trustee will be
the Security Registrar and the Paying Agent for the Senior
Notes of the First Series;
8. [Redemption provisions will be inserted here];
9. [Extension of interest payment provisions, if any, will be
inserted here];
10. [If the Senior Notes of the First Series are to be held by a
securities depositary, the matters contemplated in clause
(r) of Section 301 of the Indenture will be established
here];
11. No service charge shall be made for the registration of
transfer or exchange of the Senior Notes of the First
Series; provided, however, that the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with
the exchange or transfer;
12. If the Company shall make any deposit of money and/or
Eligible Obligations with respect to any Senior Notes of the
First Series, or any portion of the principal amount
thereof, as contemplated by Section 701 of the Indenture,
the Company shall not deliver an Officer's Certificate
described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its indebtedness in
respect of the Senior Notes of the First Series, shall
assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or
Paying Agent such additional sums of money, if any, or
additional Eligible Obligations (meeting the requirements of
Section 701), if any, or any combination thereof, at such
time or times, as shall be necessary, together with the
money and/or Eligible Obligations theretofore so deposited,
to pay when due the principal of and premium, if any, and
interest due and to become due on such Senior Notes of the
First Series or portions thereof, all in accordance with and
subject to the provisions of said Section 701; provided,
however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the
Trustee of a notice asserting the deficiency accompanied by
an opinion of an independent public accountant of nationally
recognized standing, selected by the Trustee, showing the
calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a
result of a change in law occurring after the date of this
certificate, the Holders of such Senior Notes of the First
Series, or portions of the principal amount thereof, will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the satisfaction and
discharge of the Company's indebtedness in respect thereof
and will be subject to United States federal income tax on
the same amounts, at the same times and in the same manner
as if such satisfaction and discharge had not been effected.
13. The obligations of the Company under the Senior Notes of the
First Series and under the Indenture to the extent related
to such series will be subject to assignment by the Company
to and assumption by a wholly owned Subsidiary of the
Company at any time, as provided in the form set forth in
Exhibit A hereto with respect to the Senior Notes of the
First Series.
In the event that such Subsidiary assumes the obligations
under the Senior Notes of the First Series, the Company will
unconditionally guarantee payment of the Senior Notes of the
First Series and will execute a guarantee in form and
substance satisfactory to the Trustee. Pursuant to the
guarantee, the Company will fully and unconditionally
guarantee the payment of the obligations of such assuming
Subsidiary under the Senior Notes of the First Series and
under the Indenture, including, without limitation, payment,
as and when due, of the principal of, premium, if any, and
interest on, the Senior Notes of the First Series. Other
than the obligation to make such payments, the Company will
be released and discharged from all of its other obligations
under the Indenture. The foregoing assignment and
assumption shall be in compliance with applicable law
including the Securities Act of 1933.
14. The Senior Notes of the First Series shall have such other
terms and provisions as are provided in the form thereof set
forth in Exhibit A hereto, and shall be issued in
substantially such form.
15. The undersigned has read all of the covenants and conditions
contained in the Indenture relating to the issuance of the
Senior Notes of the First Series and the definitions in the
Indenture relating thereto and in respect of which this
certificate is made;
16. The statements contained in this certificate are based upon
the familiarity of the undersigned with the Indenture, the
documents accompanying this certificate, and upon
discussions by the undersigned with officers and employees
of the Company familiar with the matters set forth herein;
17. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable him
to express an informed opinion whether or not such covenants
and conditions have been complied with; and
18. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including any
covenants compliance with which constitutes a condition
precedent) to the authentication and delivery of the Senior
Notes of the First Series requested in the accompanying
Company Order have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this ____ day of _____, 199_.
______________________________
Treasurer
<PAGE>
EXHIBIT A
[depository legend]
[Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration
of transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
[FORM OF FACE OF SENIOR NOTE]
NO. _______
CUSIP NO. _____
TEXAS UTILITIES COMPANY
_____% SERIES _ SENIOR NOTES DUE ____
TEXAS UTILITIES COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (herein referred to
as the "Company", which term includes any successor Person under
the Indenture), for value received, hereby promises to pay to
or registered assigns, the principal sum of ____________________
Dollars on _________, ____, and to pay interest on said principal
sum [semi-annually] [quarterly] on _________ of each year (each
an Interest Payment Date) commencing _________, at the rate of
_____% per annum until the principal hereof is paid or made
available for payment. Interest on the Securities of this series
will accrue from __________, 199_, to the first Interest Payment
Date, and thereafter will accrue from the last Interest Payment
Date to which interest has been paid or duly provided for. In the
event that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay) with the same force
and effect as if made on the Interest Payment Date. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
__th day of the calendar month next preceding such Interest
Payment Date. [Subject to the extension of interest payment
provisions,] Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
<PAGE>
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
TEXAS UTILITIES COMPANY
By:_______________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture
(for Unsecured Debt Securities Series _), dated as of _________,
199_ (herein, together with any amendments thereto, called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and The Bank of New York,
as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Board Resolutions and
Officer's Certificate filed with the Trustee on _______ __, 199_
creating the series designated on the face hereof, for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $___________.
[Redemption provisions will be inserted here].
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of a
majority in aggregate principal amount of the Securities of all
series at the time Outstanding in respect of which an Event of
Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or [,subject to the extension of interest
payment provisions,] interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[Extension of interest payment provisions, if any, will
be inserted here].
The Securities of this series are issuable only in
registered form without coupons in denominations of $_____. As
provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series
and of like tenor and of authorized denominations, as requested
by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
Unless an Event of Default, or an event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing, the obligations
of the Company under the Securities of this series and the
Indenture to the extent related to such series may be assigned by
the Company to, and be assumed in whole, on a full recourse
basis, by a wholly owned Subsidiary of the Company at any time;
provided, however, that such assumption shall be subject to, and
-------- -------
permitted only upon the fulfillment and satisfaction of, the
following terms and conditions: (a) an assumption agreement and
a supplemental indenture to the Indenture evidencing such
assumption shall be in substance and form reasonably satisfactory
to the Trustee and shall, inter alia, include modifications and
----- ----
amendments to the Indenture making the obligations under the
Securities of this series and under the Indenture to the extent
related to such series primary obligations of such Subsidiary,
substituting such Subsidiary of the Company for the Company in
the form of the Securities of this series and in provisions of
the Indenture to the extent related to such series and releasing
and discharging the Company from its obligations under the
Securities of this series and the Indenture to the extent related
to such series; and (b) the Trustee shall have received (i) an
executed counterpart of such assumption agreement and
supplemental indenture; (ii) evidence satisfactory to the Trustee
and the Company that all necessary authorizations, consents,
orders, approvals, waivers, filings and declarations of or with,
Federal, state, county, municipal, regional or other governmental
authorities, agencies or boards (collectively, "Governmental
Actions") relating to such assumption have been duly obtained and
are in full force and effect, (iii) evidence satisfactory to the
Trustee that any security interest intended to be created by the
Indenture is not in any material way adversely affected or
impaired by any of the agreements or transactions relating to
such assumption and (iv) an Opinion of Counsel for such
Subsidiary, reasonably satisfactory in substance, scope and form
to the Trustee and the Company, to the effect that (A) the
supplemental indenture evidencing such assumption has been duly
authorized, executed and delivered by such Subsidiary, (B) the
execution and delivery by such Subsidiary of such supplemental
indenture and the consummation of the transactions contemplated
thereby do not contravene any provision of law or any
governmental rule applicable to such Subsidiary or any provision
of such Subsidiary's charter documents or by-laws and do not
contravene any provision of, or constitute a default under, or
result in the creation or imposition of any lien upon any of such
Subsidiary's properties or assets under any indenture, mortgage,
contract or other agreement to which such Subsidiary is a party
or by which such Subsidiary or any of its properties may be bound
or affected, (C) all necessary Governmental Actions relating to
such assumption have been duly obtained and are in full force and
effect and (D) such agreement and supplemental indenture
constitute the legal, valid and binding obligations of such
Subsidiary, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws at the time in effect affecting the rights of
creditors generally.
At the time of such assumption the Company will
unconditionally guarantee payment of the Securities of this
series and will execute a guarantee in form and substance
satisfactory to the Trustee. Pursuant to the guarantee, the
Company will fully and unconditionally guarantee the payment of
the obligations of such assuming Subsidiary under the Securities
of this series and under the Indenture, including, without
limitation, payment, as and when due, of the principal of,
premium, if any, and interest on, the Securities of this series.
Other than the obligation to make such payments, the Company
shall be released and discharged from all other obligations under
the Indenture.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit 4(e)
TRUST AGREEMENT
OF TXU CAPITAL I
This TRUST AGREEMENT of TXU Capital I (the "Trust"),
dated as of December 3, 1998, among (i) Texas Utilities Company,
a Texas corporation (the "Depositor"), (ii) The Bank of New York,
a New York banking corporation (the "Property Trustee"), not in
its individual capacity but solely as trustee of the Trust, (iii)
The Bank of New York (Delaware), a Delaware banking corporation
(the "Delaware Trustee"), not in its individual capacity but
solely as trustee of the Trust, and (iv) Laura Anderson, an
individual employed by the Depositor or one of its affiliates,
not in her individual capacity but solely as trustee of the Trust
(the "Administrative Trustee")(the Administrative Trustee,
together with any administrative trustees appointed by the
Depositor after the date hereof, the "Administrative Trust-
ees")(each of such trustees in (ii), (iii) and (iv) a "Trustee"
and collectively, the "Trustees"). The Depositor and the Trust-
ees hereby agree as follows:
1. The trust created hereby shall be known as "TXU
Capital I", in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys
and sets over to the Trustees the sum of $10. The Trustees
hereby acknowledge receipt of such amount in trust from the
Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. S.3801 et seq. (the "Business Trust Act"), and that
------ -- ---
<PAGE>
this document constitutes the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and
file a certificate of trust with the Secretary of State of the
State of Delaware in accordance with the provisions of the
Business Trust Act.
3. The Depositor and the Trustees will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form to be included as an exhibit
to the 1933 Act Registration Statement referred to below, to
provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Trust Securities and
Common Trust Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agree-
ment, the Trustees shall not have any duty or obligation hereun-
der or with respect of the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior
to such execution and delivery any licenses, consents or approv-
als required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize
and direct each of the Administrative Trustees, and the Deposi-
tor, acting singly or together, (and, in the case of (iv) below,
Robert J. Reger, Jr., as authorized representative of the Trust)
(i) to prepare and file with the Securities and Exchange Commis-
sion (the "Commission") and execute, in each case on behalf of
the Trust, (a) a Registration Statement on Form S-3 (the "1933
Act Registration Statement") (including any pre-effective or
post-effective amendments thereto), relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Trust Securities of the Trust and certain other securities and
(b) a Registration Statement on Form 8-A (the "1934 Act Registra-
tion Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred
Trust Securities of the Trust under Section 12(b) or
-2-
<PAGE>
12(g) of the Securities Exchange Act of 1934, as amended; (ii) to
prepare and file with The New York Stock Exchange, Inc. (the
"Exchange") and execute on behalf of the Trust a listing applica-
tion and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desir-
able to cause the Preferred Trust Securities to be listed on the
Exchange, (iii) to prepare and file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to
register the Preferred Trust Securities under the securities or
blue sky laws of such jurisdictions as the Depositor or the
Administrative Trustee, on behalf of the Trust, may deem neces-
sary or desirable and (iv) to execute and deliver, on behalf of
the Trust, an underwriting agreement in respect of the sale of
the Preferred Trust Securities in such form as the Depositor
shall approve. In the event that any filing referred to above is
required by the rules and regulations of the Commission, the
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by one or more of the Trustees, each of the
Trustees, in its or her capacity as Trustee of the Trust, is
hereby authorized and, to the extent so required, directed to
join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the Property
Trustee and the Delaware Trustee, in their capacities as Trustees
of the Trust, respectively, shall not be required to join in any
such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission,
the Exchange or state securities or blue sky laws. In connection
with the filings referred to above, the Depositor and each
Trustee, solely in its or her capacity as trustee of the Trust,
hereby constitutes and appoints Robert A. Wooldridge, Peter B.
Tinkham and Robert J. Reger, Jr., and each of them, as its or her
-3-
<PAGE>
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such
Trustee or in the Depositor's or such Trustee's name, place and
stead, in any and all capacities, to sign any and all filings and
amendments (including post-effective amendments) to any of such
filings (including the 1933 Act Registration Statement and the
1934 Act Registration Statement) and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Commission, the Exchange and securities or blue sky
administrators, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor or such
Trustee might or could do in person, hereby ratifying and con-
firming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or
cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or
more counterparts.
6. The number of Trustees initially shall be three
(3) and thereafter the number of Trustees shall be such number as
shall be fixed from time to time by a written instrument signed
by the Depositor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall be either a natural person
who is a resident of the State of Delaware, or, if not a natural
person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any Trustee at any
time. Any one or more of the Trustees may resign upon thirty
days prior written notice to Depositor.
-4-
<PAGE>
7. The Depositor shall have the right to dissolve the
Trust at any time prior to the issuance of any Preferred Trust
Security. Upon dissolution of the Trust pursuant to this Section
7, each of the Administrative Trustees, acting singly, is hereby
authorized to prepare, execute and file a Certificate of Cancel-
lation in respect of the Trust with the Secretary of State of the
State of Delaware.
8. This Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware
(without regard to conflict of laws principles).
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
TEXAS UTILITIES COMPANY
as Depositor
By: /s/ Kirk B. Oliver
--------------------------------
Name: Kirk R. Oliver
Title: Treasurer
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By: /s/ Remo J. Reale
--------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
THE BANK OF NEW YORK
(DELAWARE), not in its
individual capacity but
solely as Trustee
By: /s/ Mary Jane Morrissey
--------------------------------
Name: Mary Jane Mrrissey
Title: Authorized Signatory
LAURA ANDERSON, not in her
individual capacity but solely
as Trustee
By: /s/ Laura Anderson
--------------------------------
Exhibit 4(f)
=================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
TEXAS UTILITIES COMPANY, as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
,
-----------------
,
-----------------
,
-----------------
,
-----------------
and
LAURA ANDERSON, as Trustees
Dated as of , 199
------ -
TXU CAPITAL I
=================================================================
<PAGE>
TXU CAPITAL I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . . 8.14(b)
(c) . . . . . . . . . . . . . . 8.14(a)
(d) . . . . . . . . . . . . . . 8.14(a), 8.14(b)
Section 314(a) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . 8.02, 8.14(b)
(c) . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . 10.10
--------------------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions . . . . . . . . . . . . . . 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name . . . . . . . . . . . . . . . . . . 11
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business . . . . . . . 11
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . 11
Section 2.04. Issuance of the Preferred Trust
Securities . . . . . . . . . . . . . . . 11
Section 2.05. Subscription and Purchase of Debentures;
Issuance of the Common Trust Securities . 12
Section 2.06. Declaration of Trust; Appointment of
Additional Administrative Trustees . . . 12
Section 2.07. Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . . 12
Section 2.08. Assets of Trust . . . . . . . . . . . . . 16
Section 2.09. Title to Trust Property . . . . . . . . . 16
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . 16
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . 17
Section 4.02. Redemption . . . . . . . . . . . . . . . 18
Section 4.03. Subordination of Common Trust
Securities . . . . . . . . . . . . . . . 20
Section 4.04. Payment Procedures . . . . . . . . . . . 20
Section 4.05. Tax Returns and Reports . . . . . . . . . 20
Section 4.06. Payments under Indenture . . . . . . . . 21
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership . . . . . . . . . . . . 21
Section 5.02. The Trust Securities Certificates . . . . 21
Section 5.03. Execution and Delivery of Trust
Securities Certificates . . . . . . . . . 22
Section 5.04. Registration of Transfer and Exchange of
Trust Securities Certificates . . . . . . 22
Section 5.05. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates . . . . . . 23
Section 5.06. Persons Deemed Securityholders . . . . . 23
Section 5.07. Access to List of Securityholders' Names
and Addresses . . . . . . . . . . . . . . 23
Section 5.08. Maintenance of Office or Agency . . . . . 24
Section 5.09. Appointment of Paying Agent . . . . . . . 24
Section 5.10. Ownership of Common Trust Securities by
Depositor . . . . . . . . . . . . . . . . 25
Section 5.11. Definitive Preferred Trust Securities
Certificates . . . . . . . . . . . . . . 25
Section 5.12. Book-Entry System . . . . . . . . . . . . 26
Section 5.13. Rights of Securityholders . . . . . . . . 26
Section 5.14. Cancellation by Transfer Agent and
Registrar . . . . . . . . . . . . . . . . 27
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights . . . . . . 27
Section 6.02. Notice of Meetings . . . . . . . . . . . 28
Section 6.03. Meetings of Holders of Preferred Trust
Securities . . . . . . . . . . . . . . . 28
Section 6.04. Voting Rights . . . . . . . . . . . . . . 29
Section 6.05. Proxies, etc. . . . . . . . . . . . . . . 29
Section 6.06. Securityholder Action by Written
Consent . . . . . . . . . . . . . . . . . 29
Section 6.07. Record Date for Voting and Other
Purposes . . . . . . . . . . . . . . . . 29
Section 6.08. Acts of Securityholders . . . . . . . . . 30
Section 6.09. Inspection of Records . . . . . . . . . . 31
ARTICLE VII.
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . 31
Section 7.02. Delaware Trustee . . . . . . . . . . . . 31
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . 32
Section 8.02. Notice of Defaults . . . . . . . . . . . 34
Section 8.03. Certain Rights of Property Trustee . . . 34
Section 8.04. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . 37
Section 8.05. May Hold Securities . . . . . . . . . . . 37
Section 8.06. Compensation; Fees; Indemnity . . . . . . 37
Section 8.07. Certain Trustees Required; Eligibility . 38
Section 8.08. Conflicting Interests . . . . . . . . . . 38
Section 8.09. Co-Trustees and Separate Trustee . . . . 39
Section 8.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 40
Section 8.11. Acceptance of Appointment by Successor . 42
Section 8.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 42
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust . . . . . . . 43
Section 8.14. Reports by Property Trustee . . . . . . . 43
Section 8.15. Reports to the Property Trustee . . . . . 43
Section 8.16. Evidence of Compliance With Conditions
Precedent . . . . . . . . . . . . . . . . 43
Section 8.17. Number of Trustees . . . . . . . . . . . 43
Section 8.18. Delegation of Power . . . . . . . . . . . 44
Section 8.19. Fiduciary Duty . . . . . . . . . . . . . 44
ARTICLE IX.
Termination and Liquidation
Section 9.01. Dissolution Upon Expiration Date . . . . 45
Section 9.02. Early Termination . . . . . . . . . . . . 46
Section 9.03. Termination . . . . . . . . . . . . . . . 46
Section 9.04. Liquidation . . . . . . . . . . . . . . . 46
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations . . . . . . . 48
Section 10.02. Limitation of Rights of
Securityholders . . . . . . . . . . . . 48
Section 10.03. Amendment . . . . . . . . . . . . . . . 49
Section 10.04. Separability . . . . . . . . . . . . . . 50
Section 10.05. Governing Law . . . . . . . . . . . . . 50
Section 10.06. Successors . . . . . . . . . . . . . . . 50
Section 10.07. Headings . . . . . . . . . . . . . . . . 50
Section 10.08. Notice and Demand . . . . . . . . . . . 50
Section 10.09. Agreement Not to Petition . . . . . . . 51
Section 10.10. Conflict with Trust Indenture Act . . . 51
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
, 199 , between (i) TEXAS UTILITIES COMPANY, a Texas
------ -
corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee" and, in its separate
capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) The Bank of New York (Delaware), a banking
corporation duly organized under the laws of Delaware, as
Delaware trustee (the "Delaware Trustee"),
(iv) , , and Laura
----------------- ----------- ----------
Anderson, each an individual, and each of whose address is c/o
Texas Utilities Services Inc., 1601 Bryan Street, Dallas, Texas
75201 (each, an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees are referred to herein
each as a "Trustee" and collectively as the "Trustees") and (v)
the several Holders, as hereinafter defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and Laura Anderson, as Administrative Trustee,
have heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by the entering into
of that certain Trust Agreement, dated as of December 3, 1998
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and Laura Anderson, as
Administrative Trustee and filing with the Secretary of State of
the State of Delaware of the Certificate of Trust, dated December
3, 1998, a copy of which is attached as Exhibit A; and
WHEREAS, the Trust and the Depositor entered into an
Underwriting Agreement dated , 199 with
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.
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WHEREAS, the parties hereto desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein
to provide for, among other things, (i) the acquisition by the
Trust from the Depositor of all of the right, title and interest
in the Debentures, (ii) the issuance of the Common Trust
Securities, as hereinafter defined, by the Trust to the
Depositor, and (iii) the issuance of the Preferred Trust
Securities, as hereinafter defined, by the Trust.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other party and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.01. DEFINITIONS. For all purposes of this
Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
(b) all other terms used herein that are defined
in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Trust
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount for a given period, the
amount of Additional Interest (as defined in the Subordinated
Indenture) paid by the Debenture Issuer on a Like Amount of
Debentures for such period.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this
Trust Agreement solely in their capacities as Administrative
Trustees of the Trust and not in their individual capacities, or
such trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Adverse Tax Consequence" means any of the
circumstances described in clauses (i), (ii) and (iii) of the
definition of "Tax Event" herein.
"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.
"Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator
or other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or of the
consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking
reorganization or relief under Federal bankruptcy law
or any other applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such
Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
due.
"Bankruptcy Laws" has the meaning specified in Section
10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof and to be in
full force and effect on the date of such certification, and
delivered to the appropriate Trustee.
"Business Day" means a day other than (x) a Saturday or
a Sunday, (y) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (z) a day on which the Property Trustee's Corporate
Trust Office or the Debenture Trustee's principal corporate trust
office is closed for business.
"Certificate of Trust" has the meaning specified in
Section 2.07(d).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means the date of execution and delivery
of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Trust Security" means a security representing
an undivided beneficial interest in the assets of the Trust
having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to
receive Distributions, Debentures and a Liquidation Distribution
as provided herein.
"Common Trust Securities Certificate" means a
certificate evidencing ownership of Common Trust Securities,
substantially in the form attached as Exhibit B.
"Corporate Trust Office" means the principal corporate
trust office of the Property Trustee located in New York, New
York which at the date of execution of this Trust Agreement is
located at 101 Barclay Street - 21W, New York, New York 10286.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or the Trust's Affiliates; and (b) any Holder of
Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Issuer" means Texas Utilities Company, a
Texas corporation, in its capacity as issuer of the Debentures
and its Successors.
"Debenture Redemption Date" means "Redemption Date" as
defined in the Subordinated Indenture with respect to the
Debentures.
"Debenture Trustee" means The Bank of New York, as
trustee under the Subordinated Indenture, and its permitted
successors and assigns as such trustee.
"Debentures" means the $ aggregate principal
-----------
amount of the Debenture Issuer's % Junior Subordinated
--
Debentures, Series A, issued pursuant to the Subordinated
Indenture which will mature on , .
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"Definitive Preferred Trust Securities Certificates"
means Preferred Trust Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11.
"Delaware Business Trust Act" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble
to this Trust Agreement and includes Texas Utilities Company in
its capacity as Holder of the Common Trust Securities and its
Successors.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in
Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of Default;
or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days;
or
(iii) default by the Trust in the payment of any
Redemption Price, plus accumulated and unpaid
Distributions, of any Trust Security when it becomes
due and payable; or
(iv) default in the performance, or breach, in any
material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is
specifically dealt with in clause (ii) or (iii), above)
and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trust by the Holders of at least
10% in Liquidation Amount of the Outstanding Preferred
Trust Securities a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Expense Agreement" means the Agreement as to Expenses
and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified in
Section 9.01.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, a New York
banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Trust Securities, as amended from
time to time.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, or any officer, director, shareholder, member,
partners, employee, representative or agent of any Trustee, or
any employee or agent of the Trust or its Affiliates.
"Investment Company Act" means the Investment Company
Act of 1940, as amended.
"Lien" means any lien, pledge, charge, encumbrance,
mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities plus accumulated and
unpaid Distributions to the date of such payment and (ii)
Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holders to which such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000
per Trust Security.
"Liquidation Date" means the date on which Debentures
are to be distributed to Holders of Trust Securities in
connection with a dissolution and liquidation of the Trust
pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.04(e).
"Offer" has the meaning specified in Section 2.07(c).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer 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 officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel delivered with respect to
compliance with a condition or covenant provided for in this
Trust Agreement shall include statements comparable to the
statements referred to in the definition of "Officers'
Certificate" herein.
"Original Trust Agreement" has the meaning specified in
the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Trust Securities, means, as of the date of determination, all
Preferred Trust Securities theretofore delivered under this Trust
Agreement, except:
(i) Preferred Trust Securities theretofore canceled
by the Transfer Agent and Registrar or delivered to the
Transfer Agent and Registrar for cancellation;
(ii) Preferred Trust Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Trust
Securities; provided that, if such Preferred Trust
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust
Agreement; and
(iii) Preferred Trust Securities in exchange for or in
lieu of which other Preferred Trust Securities have
been delivered pursuant to this Trust Agreement,
including pursuant to Sections 5.04, 5.05 or 5.11;
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Trust
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred Trust
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Preferred Trust Securities which such Trustee knows to be so
owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the Outstanding Preferred Trust
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Trust Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustee the pledgee's right so to act with respect
to such Preferred Trust Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner
of a Trust Securities Certificate as reflected in the records of
the Securities Depository or, if a Securities Depository
participant is not the beneficial owner, then as reflected in the
records of a Person maintaining an account with such Securities
Depository (directly or indirectly), in accordance with the rules
of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
Texas Utilities Services Inc.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee with The Chase Manhattan Bank, or such other banking
institution as the Depositor shall select for the benefit of the
Securityholders in which all amounts paid in respect of the
Debentures will be held and from which the Paying Agent, pursuant
to Section 5.09, shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Trust Security" means a security
representing an undivided beneficial interest in the assets of
the Trust having a Liquidation Amount of $1,000 and having rights
provided therefor in this Trust Agreement, including the right to
receive Distributions, Debentures and a Liquidation Distribution
as provided herein and, in certain circumstances, a preference
over the Common Trust Securities.
"Preferred Trust Securities Certificate" means a
certificate evidencing ownership of Preferred Trust Securities,
substantially in the form attached as Exhibit D.
"Property Trustee" means the commercial bank or trust
company identified as the "Property Trustee" in the preamble to
this Trust Agreement solely in its capacity as Property Trustee
of the Trust and not in its individual capacity, or its successor
in interest in such capacity, or any successor trustee appointed
as herein provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any date
fixed for redemption of any Trust Security, the Liquidation
Amount of such Trust Security.
"Relevant Trustee" shall have the meaning specified in
Section 8.10.
"Responsible Officer," when used with respect to the
Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall have the meaning
specified in Section 5.12. The Depository Trust Company will be
the initial Securities Depository.
"Securities Register" shall mean the Securities
Register as described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose
name a Trust Security or Securities is registered in the
Securities Register; any such Person shall be a beneficial owner
of such security within the meaning of the Delaware Business
Trust Act.
"Subordinated Indenture" means the Indenture, dated as
of , 199 , between the Depositor and the Debenture Trustee,
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as trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust or the
Depositor of an opinion of counsel experienced in such matters to
the effect that, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective
change) in, the laws or treaties (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial
decision or any official administrative pronouncement, ruling,
regulatory procedure, notice or announcement (including any
notice or announcement of intent to issue or adopt any such
administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any
amendment to, clarification of, or change in the official
position or the interpretation of any such Administrative Action
or judicial decision or any interpretation or pronouncement that
provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore
generally accepted position, in each case by any legislative
body, court, governmental authority or regulatory body,
irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which
amendment, clarification, or change is effective, which
Administrative Action is taken or which judicial decision is
issued, in each case on or after the date of issuance of the
Preferred Trust Securities, there is more than an insubstantial
risk that (i) the Trust is, or will be, subject to United States
federal income tax with respect to interest received on the
Debentures, (ii) interest payable by the Depositor on the
Debentures is not, or will not be, fully deductible by the
Depositor for United States federal income tax purposes, or (iii)
the Trust is, or will be, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Transfer Agent and Registrar" shall mean the transfer
agent and registrar for the Preferred Trust Securities appointed
by the Trust and shall be initially Texas Utilities Services Inc.
"Trust" means the Delaware business trust created by
the Original Trust Agreement and the Certificate of Trust and
continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any such modification, amendment
or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as amended and in force at the date as of which this
instrument was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any
cash on deposit in, or owing to, the Payment Account and (iii)
all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the
Common Trust Securities Certificates or the Preferred Trust
Securities Certificates.
"Trust Security" means any one of the Common Trust
Securities or the Preferred Trust Securities.
"Underwriting Agreement" means the Underwriting
Agreement, dated as of , 199 , among the Trust, the
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Depositor and the underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall
be known as "TXU Capital I", in which name the Trustees may
conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE;
PRINCIPAL PLACE OF BUSINESS. The office of the Delaware Trustee
in the State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, or at such other address in Delaware as the
Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of
business of the Trust is c/o Texas Utilities Company, Energy
Plaza, 1601 Bryan Street, Dallas, Texas 75201.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.04. ISSUANCE OF THE PREFERRED TRUST
SECURITIES. On , 199 , an authorized representative of
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the Depositor and the Trust, both executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, one of the Administrative
Trustees, on behalf of the Trust in accordance with Section 5.02,
executed and delivered a Preferred Trust Securities Certificate,
registered in the name of the nominee of The Depository Trust
Company, having an aggregate Liquidation Amount of $ .
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SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES;
ISSUANCE OF THE COMMON TRUST SECURITIES. Contemporaneously with
the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, subscribed to
and purchased from the Debenture Issuer Debentures, registered in
the name of the Property Trustee and having an aggregate
principal amount equal to $ and, in satisfaction of
-----------
the purchase price for such Debentures, (x) one of the
Administrative Trustees, on behalf of the Trust, executed and
delivered to the Depositor Common Trust Securities Certificates,
registered in the name of the Depositor, representing
-----
Common Trust Securities having an aggregate Liquidation Amount of
$ , and (y) the Property Trustee, on behalf of the Trust,
---------
delivered to the Debenture Issuer the sum of $
-----------
representing the proceeds from the sale of the Preferred Trust
Securities pursuant to the Underwriting Agreement.
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF
ADDITIONAL ADMINISTRATIVE TRUSTEES. The exclusive purposes and
functions of the Trust are (i) to issue Trust Securities and
invest the proceeds thereof in Debentures, and (ii) to engage in
those activities necessary or incidental thereto. The Depositor
hereby appoints the Trustees as trustees of the Trust, to have
all the rights, powers and duties to the extent set forth herein.
The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth
herein for the benefit of the Securityholders. The Trustees
shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the
purposes of the Trust. Anything in this Trust Agreement to the
contrary notwithstanding, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Property
Trustee or the Administrative Trustees set forth herein. The
Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS. (a) The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this
Section and Article VIII and in accordance with the following
provisions (A) and (B), the Trustees shall have the authority to
enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express
or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees,
acting singly or together, shall have the power, duty and
authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the
Trust to enter into and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement, and such
other agreements as may be necessary or desirable in
connection with the consummation of the Underwriting
Agreement;
(iii) to qualify the Trust to do business in any
jurisdiction as may be necessary or desirable;
(iv) the collection of interest, principal and any
other payments made in respect of the Debentures;
(v) the registration of the Preferred Trust
Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws,
and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(vi) the appointment of a Paying Agent and Transfer
Agent and Registrar in accordance with this Trust
Agreement;
(vii) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(viii) the establishment of a record date for any of
the purposes contemplated by Section 6.07 hereof;
(ix) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State
of Delaware; and
(x) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(B) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
(iv) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in
accordance with the terms of this Trust Agreement;
(v) the sending of notices of default and other
information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with
the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the execution of the certificate of
cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of
the State of Delaware; and
(viii) the taking of any ministerial action incidental
to the foregoing as the Property Trustee may from time
to time determine is necessary or advisable to protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Sections 2.07(a)(A) and
2.07(c) or the Depositor set forth in Section 2.07(c). The
Property Trustee shall have the power and authority to exercise
all of the rights, powers and privileges of a holder of
Debentures under the Subordinated Indenture and, if an Event of
Default occurs and is continuing, the Property Trustee may, for
the benefit of Holders of the Trust Securities, in its
discretion, proceed to protect and enforce its rights as holder
of the Debentures subject to the rights of the Holders pursuant
to the terms of this Trust Agreement.
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall
not undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a "grantor trust" for United States federal income tax
purposes and not as an association taxable as a corporation, (iv)
incur any indebtedness for borrowed money or (v) take or consent
to any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue of the Preferred Trust
Securities, the Depositor and the Administrative Trustees, acting
singly or together, (and, in the case of (iii) and (v) below,
Robert J. Reger, Jr., as authorized representative of the Trust)
shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and
any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby
ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission and to execute a registration statement on
Form S-3 in relation to the Preferred Trust Securities,
including any amendments thereto;
(ii) to determine the States in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Trust Securities and to do any
and all such acts, other than actions which must be
taken by or on behalf of the Trust, and advise the
Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing any
documents to be executed and filed by the Trust or on
behalf of the Trust, as the Depositor deems necessary
or advisable in order to comply with the applicable
laws of any such States;
(iii) to execute and deliver on behalf of the Trust
the Underwriting Agreement and such other agreements as
may be necessary or desirable in connection with the
consummation thereof;
(iv) to select the investment banker or bankers to
act as underwriters with respect to the offer and sale
by the Trust of Preferred Trust Securities ("Offer")
and negotiate the terms of an Underwriting Agreement
and pricing agreement providing for the Offer; and
(v) to take any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary,
the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified other than as a "grantor trust" for United States
federal income tax purposes and not as an association taxable as
a corporation and so that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States federal
income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the certificate of trust filed
with the Secretary of State of the State of Delaware with respect
to the Trust (as amended or restated from time to time, the
"Certificate of Trust") or this Trust Agreement, that each of the
Depositor and the Administrative Trustees determines in its
discretion to be necessary or desirable for such purposes, as
long as such action does not materially adversely affect the
interests of the Holders of the Preferred Trust Securities.
SECTION 2.08. ASSETS OF TRUST. The assets of the
Trust shall consist of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to
all Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property
Trustee and the Paying Agent appointed by the Administrative
Trustees shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Holders of Trust
Securities and for distribution as herein provided, including
(and subject to) any priority of payments provided for herein.
The Property Trustee shall have no liability in any respect
whatsoever in regards to any moneys or other property deposited
in the Payment Account at an institution other than the Property
Trustee.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of
the Trust available for the payment of Distributions.
Distributions shall accrue from the Closing Date, and, except in
the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to Section
311 of the Subordinated Indenture, shall be payable quarterly in
arrears on 1, 1, 1, and 1 of each
------- ----- ---- -------
year, commencing on 1, 199 . If any date on which
------- -
Distributions are otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall
be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such
delay) in each case, with the same force and effect as if made on
such date (each date on which Distributions are payable in
accordance with this Section 4.01(a) a "Distribution Date").
(b) Distributions payable on the Trust Securities
shall be fixed at a rate of % per annum of the Liquidation
--
Amount of the Trust Securities. The amount of Distributions
payable for any quarterly period shall be computed on the same
basis as interest is calculated on the Debentures. If the
interest payment period for the Debentures is extended pursuant
to Section 311 of the Subordinated Indenture, then Distributions
on the Trust Securities will be deferred for the period equal to
the extension of the interest payment period for the Debentures
and the rate per annum at which Distributions on the Trust
Securities accumulate shall be increased by an amount such that
the aggregate amount of Distributions that accumulate on all
Trust Securities during any such extended interest payment period
is equal to the aggregate amount of interest (including, to the
extent permitted by law, interest payable on unpaid interest at
the percentage rate per annum set forth above, compounded
quarterly) that accrues during any such extended interest payment
period on the Debentures. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be
made and shall be deemed payable on each Distribution Date only
to the extent that the Trust has funds available in the Payment
Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect
to a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities
on the relevant record date, which shall be one Business Day
prior to the relevant Distribution Date, if Trust Securities are
in book-entry only form, and 15 days prior to the relevant
Distribution Date if Trust Securities are not in book-entry only
form.
SECTION 4.02. REDEMPTION. (a) On each Debenture
Redemption Date and at the maturity date ("Maturity Date") for
the Debentures (as defined in the Subordinated Indenture), the
Property Trustee will be required to redeem a Like Amount of
Trust Securities at the Redemption Price plus accumulated and
unpaid Distributions to the Redemption Date or Maturity Date, as
the case may be.
(b) Notice of redemption shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices
of redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of
accumulated and unpaid Distributions to be paid on the
Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and
the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
plus accumulated and unpaid Distributions to the
Redemption Date will become due and payable upon each
such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after
said date.
(c) The Trust Securities redeemed on each Redemption
Date shall be redeemed at the Redemption Price plus accumulated
and unpaid Distributions to the Redemption Date with the proceeds
from the contemporaneous redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price
plus accumulated and unpaid Distributions to the Redemption Date
shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds immediately available in the
Payment Account for such payment.
(d) If the Property Trustee gives a notice of
redemption in respect of any Preferred Trust Securities, then, by
12:00 noon, New York time, on the Redemption Date, subject to
Section 4.02(c), the Property Trustee shall irrevocably deposit
with the Paying Agent funds sufficient to pay the applicable
Redemption Price plus accumulated and unpaid Distributions to the
Redemption Date and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price plus
accumulated and unpaid Distributions to the Redemption Date to
the Holders thereof upon surrender of their Preferred Trust
Securities Certificates and Common Trust Securities Certificates.
Notwithstanding the foregoing, Distributions on the Trust
Securities with respect to Distribution Dates occurring on or
prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the
Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then on the Redemption
Date, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price plus accumulated
and unpaid Distributions to the Redemption Date thereof, but
without interest thereon, and such Trust Securities will cease to
be Outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date plus accumulated and unpaid Distributions to such
Redemption Date shall be made on the next succeeding day which is
a Business Day (and without any interest or other payment in
respect of any such delay) with the same force and effect as if
made on such date. In the event that payment of the Redemption
Price plus accumulated and unpaid Distributions in respect of any
Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price plus
accumulated and unpaid Distributions is actually paid, in which
case the actual payment date will be deemed the date fixed for
redemption for purposes of calculating the Redemption Price plus
accumulated and unpaid Distributions to such date.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the
Redemption Date.
(f) If less than all the Outstanding Trust Securities
are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be
allocated to the Common Trust Securities and to the Preferred
Trust Securities in the proportion that the aggregate Liquidation
Amount of each is to the aggregate Liquidation Amount of all
outstanding Trust Securities. The particular Preferred Trust
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Trust Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
redemption of portions (equal to $1,000 or integral multiples
thereof) of the Liquidation Amount of Preferred Trust Securities
of a denomination larger than $1,000. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Trust Securities selected for redemption and, in
the case of any Preferred Trust Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For
all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of
Preferred Trust Securities shall relate, in the case of any
Preferred Trust Securities redeemed or to be redeemed only in
part, to the portion of the Liquidation Amount of Preferred Trust
Securities which has been or is to be redeemed.
SECTION 4.03. SUBORDINATION OF COMMON TRUST
SECURITIES. (a) Payment of Distributions (including Additional
Amounts, if applicable) on, and the Redemption Price plus
accumulated and unpaid Distributions of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date an Event of Default shall
have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption
Price plus accumulated and unpaid Distributions of, any Common
Trust Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Trust
Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Trust
Securities for all distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price plus
accumulated and unpaid Distributions the full amount of such
Redemption Price plus accumulated and unpaid Distributions on all
Outstanding Preferred Trust Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price plus accumulated and unpaid Distributions
of, Preferred Trust Securities then due and payable.
(b) In the case of the occurrence of any Event of
Default resulting from a Debenture Event of Default, the Holder
of Common Trust Securities will be deemed to have waived any such
Event of Default under this Trust Agreement until the effect of
all such Events of Default with respect to the Preferred Trust
Securities have been cured, waived or otherwise eliminated.
Until all such Events of Default under this Trust Agreement with
respect to the Preferred Trust Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Preferred Trust Securities
and not the Holder of the Common Trust Securities, and only the
Holders of the Preferred Trust Securities will have the right to
direct the Property Trustee to act on their behalf.
SECTION 4.04. PAYMENT PROCEDURES. Payments in
respect of the Preferred Trust Securities shall be made by
check mailed to the address of the Person entitled thereto as
such address shall appear on the Securities Register or, if the
Preferred Trust Securities are held by a Securities Depository,
such Distributions shall be made to the Securities Depository,
which shall credit the relevant Persons' accounts at such
Securities Depository on the applicable Distribution Dates.
Payments in respect of the Common Trust Securities shall be made
in such manner as shall be mutually agreed between the
Administrative Trustees and the Holder of the Common Trust
Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared or filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
SECTION 4.06. PAYMENTS UNDER INDENTURE. Any amount
payable hereunder to any Holder of Preferred Trust Securities
shall be reduced by the amount of any corresponding payment such
Holder has directly received pursuant to Section 808 of the
Subordinated Indenture. Notwithstanding the provisions hereunder
to the contrary, Securityholders acknowledge that any Holder of
Preferred Trust Securities that receives payment under Section
808 of the Subordinated Indenture may receive amounts greater
than the amount such Holder may be entitled to receive pursuant
to the other provisions of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. INITIAL OWNERSHIP. Upon the creation of
the Trust by the contribution by the Depositor pursuant to
Section 2.03 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.02. THE TRUST SECURITIES CERTIFICATES. The
Trust Securities Certificates shall be issued in denominations of
$1,000 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of at least one
Administrative Trustee and, if executed on behalf of the Trust by
facsimile signature, the Preferred Trust Securities shall be
countersigned by the Transfer Agent and Registrar or its agent.
Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust and, if
executed on behalf of the Trust by facsimile signature,
countersigned by the Transfer Agent and Registrar or its agent,
shall be validly issued and entitled to the benefits of this
Trust Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the delivery
of such Trust Securities Certificates or did not hold such
offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate
shall become a Securityholder, and shall be entitled to the
rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04 or
5.12.
SECTION 5.03. EXECUTION AND DELIVERY OF TRUST
SECURITIES CERTIFICATES. On the Closing Date, the Administrative
Trustees, or any one of them, shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust,
and in the case of Preferred Trust Securities executed by
facsimile signature, countersigned by the Transfer Agent and
Registrar, or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold The Bank of
New York harmless against any and all costs and liabilities
incurred without negligence arising out of or in connection with
any such countersigning by it.
SECTION 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF
TRUST SECURITIES CERTIFICATES. The Transfer Agent and Registrar
shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the
registration of Preferred Trust Securities Certificates and the
Common Trust Securities Certificates (subject to Section 5.10 in
the case of the Common Trust Securities Certificates) and
registration of transfers and exchanges of Preferred Trust
Securities Certificates as herein provided. Texas Utilities
Services Inc. shall be the initial Transfer Agent and Registrar.
Upon surrender for registration of transfer of any
Preferred Trust Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause the Transfer Agent and
Registrar or its agent to countersign and deliver, in the name of
the designated transferee or transferees, one or more new
Preferred Trust Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount. At the
option of a Holder, Preferred Trust Securities Certificates may
be exchanged for other Preferred Trust Securities Certificates in
authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or
agency maintained pursuant to Section 5.08.
Every Preferred Trust Securities Certificate presented
or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and the Transfer
Agent and Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Trust
Securities Certificate surrendered for registration of transfer
or exchange shall be canceled and subsequently disposed of by the
Administrative Trustees in accordance with customary practice.
The Trust shall not be required to (i) issue, register the
transfer of, or exchange any Preferred Trust Securities during a
period beginning at the opening of business 15 calendar days
before the day of mailing of a notice of redemption of any
Preferred Trust Securities called for redemption and ending at
the close of business on the day of such mailing or (ii) register
the transfer of or exchange any Preferred Trust Securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any such Preferred Trust Securities being
redeemed in part.
No service charge shall be made for any registration of
transfer or exchange of Preferred Trust Securities Certificates,
but the Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred
Trust Securities Certificates.
SECTION 5.05. MUTILATED, DESTROYED, LOST OR STOLEN
TRUST SECURITIES CERTIFICATES. If (a) any mutilated Trust
Securities Certificate shall be surrendered to the Transfer Agent
and Registrar, or if the Transfer Agent and Registrar shall
receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate and (b) there shall be
delivered to the Transfer Agent and Registrar and the
Administrative Trustees such security or indemnity as may be
required by them to save each of them and the Depositor harmless,
then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute by manual or facsimile signature and, if
execution on behalf of the Trust is by facsimile signature,
countersigned by a Transfer Agent and Registrar or its agent; and
the Administrative Trustees, or any one of them, and, if executed
on behalf of the Trust by facsimile signature, countersigned by
the Transfer Agent and Registrar or its agent shall make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the
Administrative Trustees or the Transfer Agent and Registrar may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior
to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees and the Transfer Agent and
Registrar, and any agent of the Trustee and the Transfer Agent
and Registrar, shall be entitled to treat the Person in whose
name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the
Transfer Agent and Registrar shall be bound by any notice to the
contrary.
SECTION 5.07. ACCESS TO LIST OF SECURITYHOLDERS' NAMES
AND ADDRESSES. The Administrative Trustees shall furnish or
cause to be furnished (x) to the Depositor, within 15 days after
receipt by any Administrative Trustee of a request therefor from
the Depositor in writing and (y) to the Property Trustee,
promptly after receipt by any Administrative Trustee of a request
therefor from the Property Trustee in writing in order to enable
the Property Trustee to discharge its obligations under this
Trust Agreement, a list, in such form as the Depositor or the
Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of a recent date. If Holders
of Trust Securities Certificates evidencing ownership at such
time and for the previous six months not less than 25% of the
Outstanding aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or any Trustees accountable by
reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The
Depositor shall or shall cause the Transfer Agent and Registrar
to maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Preferred Trust
Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Depositor, the Trust or the Transfer Agent and Registrar in
respect of the Trust Securities and the Trust Agreement may be
served. The Depositor initially designates Midwest Clearing
Corporation, 40 Broad Street, New York, New York 10004 as its
principal office for such purposes. The Depositor shall or shall
cause the Transfer Agent and Registrar to give prompt written
notice to the Depositor, the Property Trustee and to the
Securityholders of any change in the location of the Securities
Register or any such office or agency. If at any time the
Depositor shall fail to maintain such office or agency or shall
fail to furnish the Property Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Property Trustee,
and the Depositor hereby appoints the Property Trustee its agent
and the agent of the Trust to receive all such presentations,
surrenders, notices and demands.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying
Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such
distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent if the
Administrative Trustee or any one of them determines in its sole
discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.
The Paying Agent shall initially be Texas Utilities Services
Inc., and it may choose any co-paying agent that is acceptable to
the Administrative Trustees and the Depositor. The Paying Agent
shall be permitted to resign upon 30 days' written notice to the
Administrative Trustees and the Depositor. In the event of the
removal or resignation of Texas Utilities Services Inc. as Paying
Agent, the Administrative Trustees shall appoint a successor that
is reasonably acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank, trust
company or an Affiliate of the Depositor). The Administrative
Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees
to execute and deliver to the Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall
agree with the Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for
the benefit of the Securityholders entitled thereto until such
sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon
resignation or removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee.
The provisions of Sections 8.01, 8.03 and 8.06 shall apply to the
Paying Agent appointed hereunder, and the Paying Agent shall be
bound by the requirements with respect to paying agents of
securities issued pursuant to the Trust Indenture Act. Any
reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires
otherwise.
SECTION 5.10. OWNERSHIP OF COMMON TRUST SECURITIES BY
DEPOSITOR. On the Closing Date, the Depositor shall acquire, and
thereafter retain, beneficial and record ownership of the Common
Trust Securities. Except in connection with a transaction
involving the Depositor that would be permitted under Article
Eleven of the Subordinated Indenture, any attempted transfer of
the Common Trust Securities shall be void. The Administrative
Trustees shall cause each Common Trust Securities Certificate
issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT". Common Trust Securities Certificates representing
the Common Trust Securities shall be issued to the Depositor in
the form of a typewritten or definitive Common Trust Securities
Certificate.
SECTION 5.11. DEFINITIVE PREFERRED TRUST SECURITIES
CERTIFICATES. Upon initial issuance of the Preferred Trust
Securities, the Definitive Preferred Trust Securities
Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees, or any one of
them. The Administrative Trustees, or any one of them, shall
execute on behalf of the Trust by manual or facsimile signature,
and, if executed by facsimile on behalf of the Trust,
countersigned by the Transfer Agent and Registrar or its agent,
the Definitive Preferred Trust Securities Certificates initially
in accordance with the instructions of the Depositor. Neither
the Transfer Agent and Registrar nor any of the Administrative
Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions.
SECTION 5.12. BOOK-ENTRY SYSTEM. Some or all of the
Preferred Trust Securities may be registered in the name of a
securities depository ("Securities Depository") or a nominee
therefor, and held in the custody of the Securities Depository or
a custodian thereof. In such event, a single certificate will be
issued and delivered to the Securities Depository for such
Preferred Trust Securities, in which case the Owners of such
Preferred Trust Securities will not receive physical delivery of
certificates for Preferred Trust Securities. Except as provided
herein, all transfers of beneficial ownership interests in such
Preferred Trust Securities will be made by book-entry only, and
no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Trust
Securities will receive, hold or deliver any certificate for
Preferred Trust Securities. The Depositor, the Trustees and the
Paying Agent will recognize the Securities Depository or its
nominee as the Holder of Preferred Trust Securities for all
purposes, including notices and voting.
The Administrative Trustees, at the direction and
expense of the Depositor, may from time to time appoint a
Securities Depository or a successor thereto and enter into a
letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Trust Securities. Any Securities Depository shall be a Clearing
Agency.
The Depositor and the Trustees covenant and agree to
meet the requirements of a Securities Depository for the
Preferred Trust Securities with respect to required notices and
other provisions of the letter of representations or agreement
executed with respect to such Preferred Trust Securities.
Whenever the beneficial ownership of any Preferred
Trust Securities is determined through the books of a Securities
Depository, the requirements in this Trust Agreement of holding,
delivering or transferring such Preferred Trust Securities shall
be deemed modified with respect to such Preferred Trust
Securities to meet the requirements of the Securities Depository
with respect to actions of the Trustees, the Depositor and the
Paying Agent. Any provisions hereof permitting or requiring
delivery of such Preferred Trust Securities shall, while such
Preferred Trust Securities are in a book-entry system, be
satisfied by the notation on the books of the Securities
Depository in accordance with applicable state law.
SECTION 5.13. RIGHTS OF SECURITYHOLDERS. The legal
title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust
Agreement. The Preferred Trust Securities shall have no
preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
SECTION 5.14. CANCELLATION BY TRANSFER AGENT AND
REGISTRAR. All Trust Securities Certificates surrendered for
payment, redemption, registration of transfer or exchange shall,
if surrendered to any Person other than the Transfer Agent and
Registrar, be delivered to the Transfer Agent and Registrar and,
if not theretofore cancelled, shall be promptly cancelled by the
Transfer Agent and Registrar. No Trust Securities Certificates
shall be issued in lieu of or in exchange for any Trust
Securities Certificates cancelled as provided in this Section,
except as expressly permitted by this Trust Agreement. All
cancelled Trust Securities Certificates held by the Transfer
Agent and Registrar shall be disposed of in accordance with
customary practices.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. LIMITATIONS ON VOTING RIGHTS. (a)
Except as provided in this Section 6.01, in Section 10.03 and as
otherwise required by law, no Holder of Preferred Trust
Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association. If the Property Trustee fails to enforce its rights
under the Debentures or this Trust Agreement, a Holder of
Preferred Trust Securities may institute a legal proceeding
directly against the Depositor to enforce the Property Trustee's
rights under the Debentures or this Trust Agreement, to the
fullest extent permitted by law, without first instituting any
legal proceeding against the Property Trustee or any other
person. Notwithstanding the foregoing, a Holder of Preferred
Trust Securities may directly institute a proceeding for
enforcement of payment to such Holder of principal of or interest
on the Debentures having a principal amount equal to the
aggregate liquidation preference amount of the Preferred Trust
Securities of such Holder on or after the due dates specified in
the Debentures.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at
least 66 2/3% of the aggregate Liquidation Amount of the
Outstanding Preferred Trust Securities; provided, however, that
where a consent under the Subordinated Indenture would require
the consent of each Holder of Debentures affected thereby, no
such consent shall be given by any Trustee without the prior
written consent of each Holder of Preferred Trust Securities.
The Trustees shall not revoke any action previously authorized or
approved by a vote of the Preferred Trust Securities, except
pursuant to a subsequent vote of the Preferred Trust Securities.
The Property Trustee shall notify all Holders of the Preferred
Trust Securities of any notice of default received from the
Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred
Trust Securities, prior to taking any of the foregoing actions,
the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust will be classified as a "grantor trust" and
not as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would materially adversely affect the powers,
preferences or special rights of the Preferred Trust Securities,
whether by way of amendment to the Trust Agreement or otherwise,
or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Preferred Trust Securities as a class
will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of the Holders of at least 66 2/3% in aggregate
Liquidation Amount of the Outstanding Preferred Trust Securities.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all
meetings of the Holders of Preferred Trust Securities, stating
the time, place and purpose of the meeting, shall be given by the
Administrative Trustees pursuant to Section 10.08 to each Holder
of a Preferred Trust Security, at his registered address, at
least 15 days and not more than 90 days before the meeting. At
any such meeting, any business properly before the meeting may be
so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
SECTION 6.03. MEETINGS OF HOLDERS OF PREFERRED TRUST
SECURITIES. No annual meeting of Securityholders is required to
be held. The Administrative Trustees, however, shall call a
meeting of Securityholders to vote on any matter upon the written
request of the Holders of 25% of the then Outstanding Preferred
Trust Securities (based upon their aggregate Liquidation Amount)
and may, at any time in their discretion, call a meeting of
Holders of Preferred Trust Securities to vote on any matters as
to which the Holders of Preferred Trust Securities are entitled
to vote.
Holders of 50% of the then Outstanding Preferred Trust
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
If a quorum is present at a meeting, an affirmative
vote by the Holders of Preferred Trust Securities present, in
person or by proxy, holding more than the lesser of (x) 66 2/3%
of the then Outstanding Preferred Trust Securities (based upon
their aggregate Liquidation Amount) held by the Holders of then
Outstanding Preferred Trust Securities present, either in person
or by proxy, at such meeting and (y) 50% of the Outstanding
Preferred Trust Securities (based upon their aggregate
Liquidation Amount) shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be
entitled to one vote for each $1,000 of Liquidation Amount
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of
Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN
CONSENT. Any action which may be taken by Securityholders at a
meeting may be taken without a meeting and without notice if
Securityholders holding a majority of all Outstanding Trust
Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express
provision of this Trust Agreement) shall consent to the action in
writing (based upon their aggregate Liquidation Amount).
SECTION 6.07. RECORD DATE FOR VOTING AND OTHER
PURPOSES. For the purposes of determining the Securityholders
who are entitled to notice of and to vote at any meeting or to
vote by written consent, or to participate in any Distribution on
the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from
time to time fix a date, not more than 90 days prior to the date
of any meeting of Securityholders or the payment of Distribution
or other action including action to be taken by written consent,
as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such
instrument or instruments are delivered to the Administrative
Trustees. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which any Trustee deems sufficient.
The ownership of Preferred Trust Securities shall be
proved by the Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
SECTION 6.09. INSPECTION OF RECORDS. Subject to
Section 5.07 concerning access to the list of Securityholders,
upon reasonable notice to the Administrative Trustees and the
Property Trustee, the other records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee
hereby represents and warrants for the benefit of the Depositor
and the Securityholders that:
(a) the Property Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Property Trustee and constitutes
the valid and legally binding agreement of the Property Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Property Trustee of this Trust Agreement will not violate,
conflict with or constitute a breach of the Property Trustee's
charter or by-laws; and
(e) the execution, delivery and performance by the
Property Trustee of this Trust Agreement does not require the
consent or approval of, the giving of notice to, or the
registration with any Federal or New York banking authority.
SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Delaware Trustee is a banking corporation or
trust company duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized,
executed and delivered by the Delaware Trustee and constitutes
the valid and legally binding agreement of the Delaware Trustee
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement will not violate the
Delaware Trustee's charter or by-laws; and
(e) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement does not require the
consent or approval of, the giving of notice to, or the
registration with any Federal or Delaware banking authority.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees
shall be restricted to those set forth in the express provisions
of this Trust Agreement and, in the case of the Property Trustee,
as provided in the Trust Indenture Act, and no implied covenants
or obligations shall be read into this Trust Agreement against
any of the Trustees. 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.
Notwithstanding the foregoing, no provision of this Trust
Agreement shall require any of the Trustees 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
against such risk or liability is not reasonably assured to it.
Notwithstanding anything contained in this Trust Agreement to the
contrary, the duties and responsibilities of the Property Trustee
under this Trust Agreement shall be subject to the protections,
exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust Indenture
Act, the Delaware Business Trust Act and, to the extent
applicable, Rule 3a-7 under the Investment Company Act or any
successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section
8.01.
(b) All payments made by the Property Trustee or a
Paying Agent in respect of the Trust Securities shall be made
only from the income and proceeds from the Trust Property and
only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee
or Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not
limit the liability of the Trustees expressly set forth elsewhere
in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) All duties and responsibilities of the Property
Trustee contained in this Trust Agreement are subject to the
following:
(i) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property
in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections, exculpations and limitations on liability
afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act, the Delaware
Business Trust Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act or any successor
rule thereunder;
(ii) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Trust
Property or the payment of any taxes or assessments
levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Depositor. Money held by the
Property Trustee need not be segregated from other
funds held by it except in relation to the Payment
Account established by the Property Trustee pursuant to
this Trust Agreement and except to the extent otherwise
required by law; and
(iv) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrative
Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
SECTION 8.02. NOTICE OF DEFAULTS. (a) Within ninety
(90) days after the occurrence of any default known to the
Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such default to the Securityholders and the Depositor, 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.
(b) Within five Business Days after receipt of
notice of the Debenture Issuer's exercise of its right to defer
the payment of interest on the Debentures pursuant to the
Subordinated Indenture, an Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice
of such exercise to the Securityholders and the Property Trustee.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.01 and except as provided
by law:
(i) the Property Trustee may rely and shall be
protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or
transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred
Trust Securityholders are entitled to vote under the
terms of this Trust Agreement, the Property Trustee
shall deliver a notice to the Depositor requesting
written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee
shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Depositor or the
Administrative Trustees;
(iv) the Property Trustee may consult with counsel of
its selection and the written advice of such counsel or
any Opinion of Counsel 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;
(v) the Property Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or
direction of any Securityholder pursuant to this Trust
Agreement, unless such Securityholder shall have
offered to the Property Trustee reasonable security or
indemnity against the costs, expenses (including
reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying
with such request or direction;
(vi) the Property 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, approval, bond, debenture, note or other
evidence of indebtedness or other paper or document,
but the Property Trustee, in its discretion, may make
such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Property
Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the
books, records and premises of the Depositor personally
or by agent or attorney;
(vii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents
or attorneys, and the Property 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;
(viii) the Property 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 Trust Agreement;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Trust Securities unless either (A) a
Responsible Officer of the Property Trustee shall have
actual knowledge of the default or Event of Default or
(B) written notice of such default or Event of Default
shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder
of the Trust Securities;
(x) no provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property
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 Property 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; and no permissive or
discretionary power or authority available to the
Property Trustee shall be construed to be a duty;
(xi) no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if the
Property 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
Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it;
(xii) the Property 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
rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any
time to seek instructions concerning the administration
of this Trust Agreement from any court of competent
jurisdiction; and
(xiv) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable
to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder,
the Property Trustee (A) may request instructions from
the Holders of the Trust Securities, which instructions
may only be given by the Holders of the same
Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms
of this Trust Agreement in respect of such remedies,
rights or actions, (B) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (C) shall be protected
in acting in accordance with such instructions.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES. The recitals contained herein and in the Trust
Securities Certificates shall be taken as the statements of the
Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to
the title to, or value or condition of, the property of the Trust
or any part thereof, nor as to the validity or sufficiency of
this Trust Agreement, the Debentures or the Trust Securities.
The Trustees shall not be accountable for the use or application
by the Trust of the proceeds of the Trust Securities.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any
agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities
and, except as provided in the definition of the term
"Outstanding" in Article I, may otherwise deal with the Trust
with the same rights it would have if it were not a Trustee or
such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY.
The Depositor agrees:
(i) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(iii) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), bad
faith or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts under this Trust Agreement, 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.
As security for the performance of the obligations of
the Depositor under this Section, each of the Trustees shall have
a lien prior to the Trust Securities upon all property and funds
held or collected by such Trustee as such, except funds held in
trust for the payment of Distributions on the Trust Securities.
In addition to the rights provided to each Trustee
pursuant to the provisions of the immediately preceding paragraph
of this Section 8.06, when a Trustee incurs expenses or renders
services in connection with an Event of Default resulting from a
Bankruptcy Event with respect to the Trust, the expenses
(including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a
Person that has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind
such entity.
SECTION 8.08. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture, the Guarantee Agreement,
the Indenture (For Unsecured Debt Securities Series A) dated as
of October 1, 1997 of the Company to The Bank of New York, as
trustee, the Indenture (For Unsecured Debt Securities Series B)
dated as of October 1, 1997 of the Company to The Bank of New
York, as trustee, the Indenture (For Unsecured Debt Securities
Series C), dated as of January 1, 1998 of the Company to The Bank
of New York, as trustee, the Purchase Contract Agreement dated as
of July 1, 1998 of the Company to The Bank of New York, as agent,
attorney-in-fact and trustee, the Indenture (For Unsecured Debt
Securities Series D and Series E), dated as of July 1, 1998 of
the Company to The Bank of New York, as trustee, the Indenture
(For Unsecured Debt Securities Series F), dated as of October 1,
1998 of the Company to The Bank of New York, as trustee and the
Indenture (For Unsecured Debt Securities Series G), dated as of
October 1, 1998 of the Company to The Bank of New York, as
trustee shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for
more fully confirming to such co-trustee or separate trustee such
property, title, right, or power, any and all such instruments
shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustees designated for such purpose
hereunder, shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred
or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-
trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of
the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.09, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the
execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in
the manner provided in this Section.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of any
Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee hereunder.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. No resignation or removal of any Trustee (as the case
may be, the "Relevant Trustee") and no appointment of a successor
Relevant Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section
8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the resigning Relevant
Trustee within 30 days after the giving of such notice of
resignation, the resigning Relevant Trustee may petition any
court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at any
time by Act of the Common Trust Securityholder. If a Debenture
Event of Default shall have occurred and be continuing, the
Relevant Trustee may be removed at such time by Act of the
Securityholders of a majority of the aggregate Liquidation Amount
of the Outstanding Preferred Trust Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the
Trust).
If the Relevant Trustee shall resign, be removed or
become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Trust Securityholder, by Act of the
Common Trust Securityholder delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the retiring Relevant Trustee shall comply with the
applicable requirements of Section 8.11. If the Relevant Trustee
shall resign, be removed or become incapable of continuing to act
as the Relevant Trustee at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred
Trust Securityholders, by Act of the Preferred Trust
Securityholders of a majority in aggregate Liquidation Amount of
the Outstanding Preferred Trust Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and the Relevant Trustee shall
comply with the applicable requirements of Section 8.11. If no
successor Relevant Trustee shall have been so appointed by the
Common Trust Securityholders or the Preferred Trust
Securityholders and accepted appointment in the manner required
by Section 8.11, any Securityholder who has been a Securityholder
of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or
a Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of
them or (ii) otherwise by the Depositor (with the successor in
each case being an individual who satisfies the eligibility
requirements for Administrative Trustees or Delaware Trustee, as
the case may be, set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor reasonably believes
that any Administrative Trustee who is a natural person has
become incompetent or incapacitated, the Depositor, by notice to
the remaining Trustees, may terminate the status of such Person
as an Administrative Trustee (in which case the vacancy so
created will be filled in accordance with the preceding
sentence).
No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any successor Property
Trustee or Delaware Trustee.
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Trustee
shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee and (2) shall add to or
change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees of the same trust
and that each such Relevant Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Relevant Trustee and
upon the execution and delivery of such amendment the resignation
or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the
Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held
by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee,
the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any Person into which the Property
Trustee or the Delaware Trustee or any Administrative Trustee or
any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
such Relevant Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing
of any paper, the giving of any notice or any further act on the
part of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST DEPOSITOR OR TRUST. If and when the Property Trustee
shall be or become a creditor of the Depositor or the Trust (or
any other obligor upon the Debentures or the Trust Securities),
the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor).
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. (a) The
Property Trustee shall transmit to Securityholders such reports
concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant thereto. Such
of those reports as are required to be transmitted by the
Property Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be dated as of the next preceding
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15, and shall be transmitted no later than 1 of each
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year, commencing 1, 199 .
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(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Property Trustee
with each stock exchange upon which the Trust Securities are
listed, with the Commission and with the Depositor. The
Depositor will notify the Property Trustee when any Trust
Securities are listed on any stock exchange.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information, 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. Delivery of such reports, information and
documents by the Depositor to the Property Trustee is for
informational purposes only and the Property Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Depositor's compliance with any of its
covenants hereunder (as to which the Property Trustee is entitled
to rely exclusively on Officers' Certificates).
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) 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) of the Trust
Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be seven, provided
that Depositor, by written instrument, may increase or decrease
the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason
and the number of Administrative Trustees is not reduced pursuant
to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the
Trust. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with
Section 8.10, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this
Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Sections
2.07(a) and 2.07(c), including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 8.19. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement
shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable
generally accepted accounting practices or principles.
In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute
a breach of this Trust Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise;
and
(c) Unless otherwise expressly provided herein and
subject to the provisions of the Trust Indenture Act, whenever in
this Trust Agreement an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it reasonably
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other
Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement
or by applicable law.
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. DISSOLUTION UPON EXPIRATION DATE. The
Trust shall automatically dissolve on December 31, 2040 (the
"Expiration Date") and the Trustees shall take such action as is
required by Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to
occur of any of the following events (such first occurrence, an
"Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the
Depositor/Debenture Issuer;
(ii) the redemption of all of the Preferred Trust
Securities;
(iii) an order for judicial dissolution of the Trust
having been entered by a court of competent
jurisdiction;
(iv) the election by the Depositor to dissolve the
Trust and, after satisfaction of liabilities to
creditors of the Trust, distribute the Debentures to
the Holders of Preferred Trust Securities in
liquidation of the Trust;
the Trust shall dissolve and the Trustees shall take such action
as is required by Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations
and responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (i)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (ii)
the payment of any expenses owed by the Trust; and (iii) the
discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) Upon the Expiration
Date or if an Early Termination Event specified in clause (i),
(iii) or (iv) of Section 9.02 occurs, after satisfaction of
creditors of the Trust, if any, as provided by applicable law,
the Trust shall be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be
appropriate by distributing to each Securityholder a Like Amount
of Debentures, subject to Section 9.04(e). Notice of liquidation
shall be given by the Administrative Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be
outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a
Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust
Securities Certificates for Debentures, or, if Section
9.04(e) applies, receive a Liquidation Distribution, as
the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Sections 9.02(ii), 9.04(d) or 9.04(e)
apply, in order to effect the liquidation of the Trust hereunder,
and any resulting distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Sections 9.02(ii), 9.04(d) or 9.04(e)
apply, after any Liquidation Date, (i) the Trust Securities will
no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Debentures will, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, be issued to Holders of Trust Securities
Certificates, upon surrender of such Trust Securities
Certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like
Amount of Debentures, accruing interest at the rate provided for
in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until
such Trust Securities Certificates are so surrendered (and until
such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures)
and (iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive,
after satisfaction of liabilities to creditors of the Trust, if
any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time, a Tax Event shall occur and be
continuing, and either (i) in the opinion of counsel to the
Depositor experienced in such matters, there would in all cases,
after effecting the dissolution of the Trust, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, and the distribution of the Debentures to the
Holders of the Preferred Trust Securities in exchange therefor,
be more than an insubstantial risk that an Adverse Tax
Consequence would continue to exist or (ii) the Debentures are
not held by the Trust, then the Depositor shall have the right to
redeem the Debentures, in whole but not in part, at any time
within 90 days following the occurrence of the Tax Event.
Whether or not a Tax Event has occurred, the Depositor has the
right, at any time, to dissolve the Trust and, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, cause the Debentures to be distributed to the
Holders of the Preferred Trust Securities and Common Trust
Securities in liquidation of the Trust on a pro rata basis.
(e) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for
dissolution entered by a court of competent jurisdiction or
otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical,
the Trust Property shall be liquidated, and the Trust shall be
wound-up, by the Property Trustee in such manner as the Property
Trustee determines. In such event, Securityholders will be
entitled to receive out of the assets of the Trust available for
distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust, if any, as provided by
applicable law, an amount equal to the Liquidation Amount per
Trust Security plus accumulated and unpaid Distributions thereon
to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding up, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of Common Trust Securities will
be entitled to receive Liquidation Distributions upon any such
winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Trust Securities, except that, if a
Debenture Event of Default has occurred and is continuing or if a
Debenture Event of Default has not occurred solely by reason of a
requirement that time lapse or notice be given, the Preferred
Trust Securities shall have a priority over the Common Trust
Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND
ASSUMPTION OF OBLIGATIONS. Subject to the terms and conditions
hereof, the Depositor irrevocably and unconditionally guarantees
to each Person to whom the Trust is now or hereafter becomes
indebted or liable (the "Beneficiaries"), and agrees to assume
liability for, the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to Holders the amounts due such Holders pursuant to the terms
of the Preferred Trust Securities. This guarantee and assumption
is intended to be for the benefit, of, and to be enforceable by,
all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 10.02. LIMITATION OF RIGHTS OF
SECURITYHOLDERS. The death, incapacity, bankruptcy, dissolution
or termination of any Person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor dissolve, terminate or annul the Trust,
nor entitle the legal representatives or heirs of such Person or
any Securityholder for such Person, to claim an accounting, take
any action or bring any proceeding in any court for a partition
or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
SECTION 10.03. AMENDMENT.
(a) This Trust Agreement may be amended from time to
time by the Trust (on approval of a majority of the
Administrative Trustees and the Depositor, without the consent of
any Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent
as shall be necessary to ensure that the Trust will not be
classified for United States federal income tax purposes other
than as a "grantor trust" and not as an association taxable as a
corporation at any time that any Trust Securities are outstanding
or to ensure the Trust's exemption from the status of an
"investment company" under the Investment Company Act; provided,
however, that such action shall not adversely affect in any
material respect the interests of any Securityholder and, in the
case of clause (i), any such amendments of this Trust Agreement
shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Sections 6.01(c) and
10.03(c), any provision of this Trust Agreement may be amended by
the Administrative Trustees and the Depositor with (i) the
consent of Holders of Trust Securities representing not less than
a majority (based upon Liquidation Amounts) of the outstanding
Trust Securities and (ii) receipt by the Trustees of an Opinion
of Counsel to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for federal income tax purposes or the Trust's exemption from
status as an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each
affected Securityholder, this Trust Agreement may not be amended
to (i) adversely change the amount or timing of any Distribution
on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no amendment to this Trust Agreement may be made if,
as a result of such amendment, the Trust would not be classified
as a "grantor trust" but an association taxable as a corporation
for United States federal income tax purposes or would to fail or
cease to qualify for the exemption from status of an "investment
company" under the Investment Company Act afforded by Rule 3a-5
thereunder.
(e) Notwithstanding anything in this Trust Agreement
to the contrary, without the consent of the Depositor and the
Trustees, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or any
Trustee or, in the case of the Trustees, which affects any of
their respective rights, duties or immunities hereunder.
(f) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly
provide to the Depositor a copy of such amendment.
(g) The Property Trustee and the Delaware Trustee may
join in the execution of any amendment to the Trust Agreement and
are entitled to rely upon an Opinion of Counsel as conclusive
evidence that any amendment to this Trust Agreement entered into
pursuant to this Section 10.03 is authorized or permitted by, and
conforms to, the terms of this Section 10.03, has been duly
authorized by and lawfully executed and delivered on behalf of
the other requisite parties, and that it is proper for the
Property Trustee under the provisions of this Section 10.03 to
accept the additional trusts created thereby and, if so
requested, for the Property Trustee or the Delaware Trustee to
join in the execution thereof.
SECTION 10.04. SEPARABILITY. In case any provision in
this Trust Agreement or in the Trust Securities Certificates
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS,
THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES).
SECTION 10.06. SUCCESSORS. This Trust Agreement shall
be binding upon and shall inure to the benefit of any successor
to the Trust or the Relevant Trustees or any of them, including
any successor by operation of law.
SECTION 10.07. HEADINGS. The Article and Section
headings are for convenience only and shall not affect the
construction of this Trust Agreement.
SECTION 10.08. NOTICE AND DEMAND. Any notice, demand
or other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or
upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) in the case of a Preferred Trust
Securityholder, to such Preferred Trust Securityholder as such
Securityholder's name and address may appear on the Securities
Register and (ii) in the case of the Depositor, to Texas
Utilities Company, Energy Plaza, 1601 Bryan Street, Dallas, Texas
75201, Attention: Treasurer, facsimile no. 214-812-2488, with a
copy to the Secretary, facsimile no. 214-812-2488. Such notice,
demand or other communication to or upon a Securityholder shall
be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, The Bank of New York, 101 Barclay Street,
Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Department, with a copy to: The Bank of New York
(Delaware), White Clay Center, Route 273, Newark, Delaware 19711,
Attention: Corporate Trust Department, and (ii) with respect to
the Trust or the Administrative Trustees, at the address above
for notice to the Depositor, marked "Attention: Administrative
Trustees for TXU Capital I". Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall
be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Trust or the Property
Trustee.
SECTION 10.09. AGREEMENT NOT TO PETITION. Each of the
Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in
writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel
for the Property Trustee or the Trust may assert. The provisions
of this Section 10.09 shall survive the termination of this Trust
Agreement.
SECTION 10.10. CONFLICT WITH TRUST INDENTURE ACT. (a)
This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required or deemed to be part of this
Trust Agreement and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required or deemed
provision shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Trust
Securities as equity securities representing interests in the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND THE AGREEMENT OF
THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS
AND PROVISIONS SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed, all as of the day
and year first above written.
TEXAS UTILITIES COMPANY
By:
--------------------------------
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
--------------------------------
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
--------------------------------
Title:
---------------------------------
solely in his (her) capacity as
Administrative Trustee
---------------------------------
solely in his (her) capacity as
Administrative Trustee
---------------------------------
solely in his (her) capacity as
Administrative Trustee
---------------------------------
solely in his (her) capacity as
Administrative Trustee
---------------------------------
solely in his (her) capacity as
Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
TXU CAPITAL I
THIS CERTIFICATE OF TRUST of TXU Capital I (the
"Trust"), dated as of December 3, 1998, is being duly executed
and filed by the undersigned, as trustees, to form a business
trust under the Delaware Business Trust Act (12 Del. C. S.3801,
-------
et seq.).
------
1. Name. The name of the business trust being created
hereby is TXU Capital I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, New Castle County, Delaware
19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE), LAURA ANDERSON,
not in its individual capacity not in her individual capacity
but solely as Trustee but solely as Trustee
By:/s/Mary Jane Morrissey By:/s/ Laura Anderson
---------------------- ---------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:/s/Remo J. Reale
----------------------
Name: Remo J. Reale
Title: Assistant Vice President
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Certificate Number Number of Common Trust Securities
C-[ ]
Certificate Evidencing Common Trust Securities
of
TXU Capital I
Common Trust Securities
(liquidation amount $1,000 per Common Trust Security)
TXU Capital I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies
that Texas Utilities Company (the "Holder") is the registered
owner of ( ) common securities of the Trust
----- -----
representing undivided beneficial interests in the assets of the
Trust and designated the Common Trust Securities (liquidation
amount $1,000 per Common Trust Security) (the "Common Trust
Securities"). Except as permitted by Section 5.10 of the Trust
Agreement (as defined below), the Common Trust Securities are not
transferable and any attempted transfer hereof shall be void.
The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Trust Securities are
set forth in, and this certificate and the Common Trust
Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of ,
------
199 , as the same may be amended from time to time (the "Trust
-
Agreement"), including the designation of the terms of the Common
Trust Securities as set forth therein. The Trust will furnish a
copy of the Trust Agreement to the Holder without charge upon
written request to the Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the Holder is bound
by the Trust Agreement and is entitled to the benefits
thereunder.
<PAGE>
IN WITNESS WHEREOF, an Administrative Trustee of the
Trust has executed this certificate for and on behalf of the
Trust this day of , 199 .
--- ---- -
TXU Capital I
By:
--------------------------------
not in his (her) individual
capacity, but solely as
Administrative Trustee
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of , 199 between Texas
------ -
Utilities Company, a Texas corporation ("TUC"), and TXU Capital
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Trust
Securities (the "Common Trust Securities") to and receive
Debentures from TUC and to issue its % Cumulative Preferred
--
Trust Securities (the "Preferred Trust Securities") with such
powers, preferences and special rights and restrictions as are
set forth in the Amended and Restated Trust Agreement of the
Trust dated as of , 199 as the same may be amended from
------ -
time to time (the "Trust Agreement");
WHEREAS, TUC is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Preferred Trust Securities by each holder thereof, which
acceptance TUC hereby agrees shall benefit TUC and which
acceptance TUC acknowledges will be made in reliance upon the
execution and delivery of this Agreement, TUC, including in its
capacity as holder of the Common Trust Securities, and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by TUC. Subject to the terms
-----------------
and conditions hereof, TUC hereby irrevocably and unconditionally
assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries"). As used herein, "Obligations" means any
indebtedness, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Preferred Trust
Securities the amounts due such holders pursuant to the terms of
the Preferred Trust Securities. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
-----------------
terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Trust Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Trust Securities,
under any Obligation, under the Guarantee Agreement dated the
date hereof by and between TUC and The Bank of New York, as
guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.03. Waiver of Notice. TUC hereby waives
----------------
notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and TUC hereby waives presentment,
demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations,
-------------
covenants, agreements and duties of TUC under this 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 extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) 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.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, TUC with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
-----------
this Agreement directly against TUC and TUC waives any right or
remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against TUC.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
--------------
covenants and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives
of TUC and shall inure to the benefit of the Beneficiaries and
their successors and assigns.
Section 2.02. Amendment. So long as there remains any
---------
Beneficiary or any Preferred Trust Securities of any series shall
be outstanding, this Agreement shall not be modified or amended
in any manner adverse to such Beneficiary or to the holders of
the Preferred Trust Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
TXU Capital I
c/o Laura Anderson, Administrative Trustee
1601 Bryan Street
Dallas, Texas 75201
Facsimile No.: 214-812-2488
Texas Utilities Company
1601 Bryan Street
Dallas, Texas 75201
Facsimile No.: 214-812-2488
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
<PAGE>
THIS AGREEMENT is executed as of the day and year first
above written.
TEXAS UTILITIES COMPANY
By:
-------------------------------------
Name:
Title:
TXU CAPITAL I
By:
-------------------------------------
not in his (her) individual
capacity, but solely
as Administrative Trustee
<PAGE>
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Trust Securities
P- CUSIP NO.
Certificate Evidencing Preferred Trust Securities
of
TXU Capital I
% Cumulative Preferred Trust Securities
--
(liquidation amount $1,000 per Preferred Trust Security)
TXU Capital I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies
that (the "Holder") is the registered owner of
------------ -----
( ) Preferred Trust Securities of the Trust representing an
-----
undivided beneficial interest in the assets of the Trust and
designated the TXU Capital I % Cumulative Preferred Trust
--
Securities (liquidation amount $1,000 per Preferred Trust
Security) (the "Preferred Trust Securities"). The Preferred
Trust Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer
as provided in Section 5.04 or 5.12 of the Trust Agreement (as
defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the
Preferred Trust Securities are set forth in, and this certificate
and the Preferred Trust Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Trust Agreement of the Trust dated
as of , 199 , as the same may be amended from time to time
------ -
(the "Trust Agreement"). The holder of this certificate is
entitled to the benefits of the Guarantee Agreement of Texas
Utilities Company, a Texas corporation, and The Bank of New York,
as guarantee trustee, dated as of , 199 (the "Guarantee")
------ -
to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
TXU CAPITAL I
By:
------------------------------
not in his (her)
individual capacity, but
solely as Administrative
Trustee
Countersigned and Registered:
TEXAS UTILITIES SERVICES INC.,
Transfer Agent and Registrar
By:
------------------------------
(Authorized Signature)
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Trust Security to:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
(Insert address and zip code of assignee)
of the Preferred Trust Securities represented by this Certificate
and irrevocably appoints
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
attorney to transfer such Preferred Trust Securities Certificate
on the books of the Trust. The attorney may substitute another
to act for him or her.
Date:
------------------
Signature:
------------------------
(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
Signature:
------------------------
(Sign exactly as your name appears on the other side of this
Preferred Trust Securities Certificate)
Exhibit 4(g)
------------------------------------------
TEXAS UTILITIES COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
---------
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF 1, 199
------ -
------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . 6
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE PART OF THE INDENUTRE.
<PAGE>
Security Register and Security Registrar . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . 6
Trust . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Agreement . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . . . 10
SECTION 106. Notice to Holders of Securities; Waiver . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . 13
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Security Forms. . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 14
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . 21
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 23
SECTION 309. Cancellation by Security Registrar . . . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . . . . 24
SECTION 311. Extension of Interest Payment . . . . . . . . . 24
SECTION 312. Additional Interest. . . . . . . . . . . . . . 24
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Redemption of Securities. . . . . . . . . . . . . . . . . . . . . 25
SECTION 401. Applicability of Article . . . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee . . . . . 25
SECTION 403. Selection of Securities to Be Redeemed . . . . 25
SECTION 404. Notice of Redemption . . . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date . . . . . 27
SECTION 406. Securities Redeemed in Part . . . . . . . . . . 27
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 501. Applicability of Article . . . . . . . . . . . 28
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . 28
SECTION 503. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . 29
SECTION 602. Maintenance of Office or Agency . . . . . . . . 30
SECTION 603. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . 30
SECTION 604. Corporate Existence . . . . . . . . . . . . . . 32
SECTION 605. Maintenance of Properties . . . . . . . . . . . 32
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . . . 32
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . 32
SECTION 608. Restriction on Payment of Dividends . . . . . . 33
SECTION 609. Maintenance of Trust Existence . . . . . . . . 33
SECTION 610. Rights of Holders of Preferred
Securities . . . . . . . . . . . . . . . . . 34
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . 34
SECTION 701. Satisfaction and Discharge of Securities . . . 34
SECTION 702. Satisfaction and Discharge of Indenture . . . . 36
SECTION 703. Application of Trust Money . . . . . . . . . . 37
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Events of Default; Remedies . . . . . . . . . . . . . . . . . . . 38
SECTION 801. Events of Default . . . . . . . . . . . . . . . 38
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . 39
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 40
SECTION 804. Trustee May File Proofs of Claim . . . . . . . 41
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . 42
SECTION 806. Application of Money Collected . . . . . . . . 42
SECTION 807. Limitation on Suits . . . . . . . . . . . . . . 42
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . 43
SECTION 809. Restoration of Rights and Remedies . . . . . . 43
SECTION 810. Rights and Remedies Cumulative . . . . . . . . 44
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . 44
SECTION 812. Control by Holders of Securities . . . . . . . 44
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . 44
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . 45
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . 45
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . 46
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 901. Certain Duties and Responsibilities . . . . . . 46
SECTION 902. Notice of Defaults . . . . . . . . . . . . . . 46
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . 46
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . 48
SECTION 905. May Hold Securities . . . . . . . . . . . . . . 48
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . 48
SECTION 907. Compensation and Reimbursement . . . . . . . . 48
SECTION 908. Disqualification; Conflicting Interests. . . . 49
SECTION 909. Corporate Trustee Required; Eligibility . . . . 50
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 50
SECTION 911. Acceptance of Appointment by Successor . . . . 52
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 53
SECTION 913. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . 54
SECTION 914. Co-trustees and Separate Trustees. . . . . . . 54
SECTION 915. Appointment of Authenticating Agent . . . . . . 55
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Holders' Lists and Reports by Trustee and Company . . . . . . . . 57
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . 57
SECTION 1002. Reports by Trustee and Company . . . . . . . . 58
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . 58
Consolidation, Merger, Conveyance or Other Transfer . . . . . . . 58
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . 58
SECTION 1102. Successor Person Substituted . . . . . . . . . 59
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . 59
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . 61
SECTION 1203. Execution of Supplemental Indentures . . . . . 62
SECTION 1204. Effect of Supplemental Indentures . . . . . . 62
SECTION 1205. Conformity With Trust Indenture Act . . . . . 63
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 63
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . . 63
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . 63
Meetings of Holders; Action Without Meeting . . . . . . . . . . . 63
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . 63
SECTION 1302. Call, Notice and Place of Meetings . . . . . . 64
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . 64
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . 64
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . . . 65
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . 66
SECTION 1307. Action Without Meeting . . . . . . . . . . . . 67
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . . . 67
Immunity of Incorporators, Shareholders Officers and Director . . 67
SECTION 1401. Liability Solely Corporate . . . . . . . . . . 67
ARTICLE FIFTEEN . . . . . . . . . . . . . . . . . . . . . . . . . 68
Subordination of Securities . . . . . . . . . . . . . . . . . . . 68
SECTION 1501. Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . . . 68
SECTION 1502. Payment Over of Proceeds of Securities . . . . 68
SECTION 1503. Disputes with Holders of Certain Senior
Indebtedness . . . . . . . . . . . . . . . . 70
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . 70
SECTION 1505. Obligation of the Company Unconditional . . . 71
SECTION 1506. Priority of Senior Indebtedness Upon
Maturity . . . . . . . . . . . . . . . . . . 71
SECTION 1507. Trustee as Holder of Senior
Indebtedness . . . . . . . . . . . . . . . . 71
SECTION 1508. Notice to Trustee to Effectuate
Subordination . . . . . . . . . . . . . . . 72
SECTION 1509. Modification, Extension, etc. of Senior
Indebtedness . . . . . . . . . . . . . . . . 72
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness . . . . . . . . . . . 72
SECTION 1511. Paying Agents Other Than the Trustee . . . . . 73
SECTION 1512. Rights of Holders of Senior Indebtedness
Not Impaired . . . . . . . . . . . . . . . . 73
SECTION 1513. Effect of Subordination Provisions;
Termination . . . . . . . . . . . . . . . . 73
ARTICLE SIXTEEN . . . . . . . . . . . . . . . . . . . . . . . . . 74
Junior Subordinated Debentures. . . . . . . . . . . . . . . . . . 74
SECTION 1601. Designation of Junior Subordinated
Debentures . . . . . . . . . . . . . . . . . 74
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . 76
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . 78
<PAGE>
TEXAS UTILITIES COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF 1, 199
----- -
TRUST INDENTURE ACT SECTION INDENTURE SECTION
S.310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 908
910
S.311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
S.312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
S.313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
S.314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
S.315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 814
S.316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 808
S.317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 603
S.318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of 1, 199 , between TEXAS
---- -
UTILITIES COMPANY, a corporation duly organized and existing
under the laws of the State of Texas (herein called the
"Company"), having its principal office at Energy Plaza, 1601
Bryan Street, Dallas, Texas 75201, and THE BANK OF NEW YORK, a
banking corporation of the State of New York, having its
principal corporate trust office at 101 Barclay Street, New York,
New York 10286, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured subordinated debentures, notes or other
evidences of indebtedness (herein called the "Securities"), in an
unlimited aggregate principal amount to be issued from time to
time in one or more series as contemplated herein; and all acts
necessary to make this Indenture a valid agreement of the Company
have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"ADDITIONAL INTEREST" has the meaning specified in
Section 312.
"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 through
one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other officer or agent of the Company duly
authorized by the Board of Directors to act in respect of matters
relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution and delivery of this Indenture is located at
101 Barclay Street, New York, New York 10286.
"CORPORATION" means a corporation, association,
company, limited liability company, joint stock company or
business trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"EVENT OF DEFAULT" has the meaning specified in Section
801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States and entitled to the benefit
of the full faith and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or
examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"GUARANTEE" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the holders of
Preferred Securities issued by such Trust.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Securities
established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company, or other counsel
acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled or delivered to
the Security Registrar for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any
series, have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities, Securities owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor (unless the
Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding Securities
of each such series, as the case may be, determined without
regard to this provision) shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which
have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor; and provided, further, that, in the case of any Security
the principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium,
if any, or interest, if any, on any Securities on behalf of the
Company.
"PERSON" means any individual, corporation,
partnership, joint venture, trust or unincorporated organization
or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602,
principal of and premium, if any, and interest, if any, on the
Securities of such series are payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"PREFERRED SECURITIES" means any preferred trust
interests issued by a Trust or similar securities issued by
permitted successors to such Trust in accordance with the Trust
Agreement pertaining to such Trust.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means all obligations (other than
non-recourse obligations and the indebtedness issued under this
Indenture) of, or guaranteed or assumed by, the Company for
borrowed money, including both senior and subordinated
indebtedness for borrowed money (other than the Securities), or
for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and
its subsidiaries in accordance with generally accepted accounting
principles as in effect from time to time, or evidenced by bonds,
debentures, notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and refundings of
any such indebtedness or obligations, whether existing as of the
date of this Indenture or subsequently incurred by the Company
unless, in the case of any particular indebtedness, renewal,
extension or refunding, the instrument creating or evidencing the
same or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or refunding
is not superior in right of payment to or is pari passu with the
Securities; provided that the Company's obligations under the
Guaranty shall not be deemed to be Senior Indebtedness.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation
or such installment of principal or interest is stated to be due
and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"TRUST" means TXU Capital I, a statutory business trust
formed under the laws of the State of Delaware, or any other
Trust designated pursuant to Section 301 hereof or any permitted
successor under the Trust Agreement pertaining to such Trust.
"TRUST AGREEMENT" means the Amended and Restated Trust
Agreement, dated as of , 199 , relating to TXU Capital I,
------ -
or an Amended and Restated Trust Agreement relating to a Trust
designated pursuant to Section 301 hereof, in each case, among
the Company, as Depositor, the trustees named therein and several
holders referred to therein, as such agreement or agreements, as
the case may be, may be amended from time to time.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action (including any
covenants compliance with which constitutes a condition
precedent) have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture 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.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided
by this Indenture to be made, given or taken by Holders may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section
1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of
Securities held by any Person, and the date of holding the
same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series authenticated and
delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by
the Trustee as to any action taken by such Act of Holders.
If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be prepared and
executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such
series.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of
record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to
time designate, or transmitted by certified or registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street - 21W
New York, New York 10286
Attention: Vice President, Corporate
Trust Administration
Telephone: (212) 815-5375
Telecopy: (212) 815-5915
If to the Company, to:
Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Attention: Treasurer
Telephone: (214) 812-4646
Telecopy: (214) 812-3366
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by certified or
registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder, the Holders and, so long as the
notice described in Section 1513 hereof has not been given, the
holders of Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided,
however, that for so long as any Preferred Securities remain
outstanding, the holders of such Preferred Securities, subject to
certain limitations set forth in this Indenture, may enforce the
Company's obligations hereunder directly against the Company as
third party beneficiaries of this Indenture without first
proceeding against the Trust issuing such Preferred Securities.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, EXCEPT TO THE EXTENT THAT THE LAW OF ANY OTHER JURISDICTION
SHALL BE MANDATORILY APPLICABLE.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or in the Board Resolution
or Officer's Certificate which establishes the terms of the
Securities of such series, which specifically states that such
provision shall apply in lieu of this Section) payment of
interest or principal and premium, if any, need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment, except that if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect, and in the same
amount, as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, as the case may be, and, if such
payment is made or duly provided for on such Business Day, no
interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections
301 or 1201(g), the Securities of each series shall be issuable
in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the
officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
Dated:
---------------------------------
as Trustee
By:
-----------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited;
provided, however, that all Securities shall be issued to a Trust
in exchange for securities of the Company or to evidence loans by
a Trust of the proceeds of the issuance of Preferred Securities
of such Trust plus the amount deposited by the Company with such
Trust from time to time.
The Securities may be issued in one or more series.
Prior to the authentication and delivery of Securities of any
series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an
Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series shall be payable on any Interest Payment Date, if
other than the Persons in whose names such Securities (or
one or more Predecessor Securities) are registered at the
close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of the
Securities of such series is payable or any formulary or
other method or other means by which such date or dates
shall be determined, by reference to an index or other fact
or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such
series shall bear interest, if any (including the rate or
rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities
shall bear interest prior to Maturity, and, if applicable,
the rate or rates at which overdue premium or interest shall
bear interest, if any), or any formulary or other method or
other means by which such rate or rates shall be determined,
by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the
date or dates from which such interest shall accrue; the
Interest Payment Dates on which such interest shall be
payable and the Regular Record Date, if any, for the
interest payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend the
interest payment periods and the duration of any such
extension as contemplated by Section 311; and the basis of
computation of interest, if other than as provided in
Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series shall be payable, (2)
registration of transfer of Securities of such series may be
effected, (3) exchanges of Securities of such series may be
effected and (4) notices and demands to or upon the Company
in respect of the Securities of such series and this
Indenture may be served; the Security Registrar for such
series; and if such is the case, that the principal of such
Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series may
be redeemed, in whole or in part, at the option of the
Company and any restrictions on such redemptions, including
but not limited to a restriction on a partial redemption by
the Company of the Securities of any series, resulting in
delisting of such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series
pursuant to any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and the
period or periods within which or the date or dates on
which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation,
and applicable exceptions to the requirements of Section 404
in the case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of such
series shall be issuable if other than denominations of $25
and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series are to be
payable, at the election of the Company or a Holder thereof,
in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods
within which and the terms and conditions upon which, such
election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series are to be
payable, or are to be payable at the election of the Company
or a Holder thereof, in securities or other property, the
type and amount of such securities or other property, or the
formulary or other method or other means by which such
amount shall be determined, and the period or periods within
which, and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series may be determined with reference to an index
or other fact or event ascertainable outside this Indenture,
the manner in which such amounts shall be determined to the
extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series
which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, in
addition to those set forth in Article Six;
(p) the terms, if any, pursuant to which the
Securities of such series may be converted into or exchanged
for shares of capital stock or other securities of the
Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Government Obligations in respect
of the Securities of such series denominated in a currency
other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement
of the Company's indebtedness in respect of such Securities
after the satisfaction and discharge thereof as provided in
Section 701;
(r) if the Securities of such series are to be issued
in global form, (i) any limitations on the rights of the
Holder or Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer thereof,
(ii) any limitations on the rights of the Holder or Holders
thereof to obtain certificates therefor in definitive form
in lieu of temporary form and (iii) any and all other
matters incidental to such Securities;
(s) if the Securities of such series are to be
issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in a
supplemental indenture as contemplated by clause (g) of
Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series to transfer or
exchange such Securities or to obtain the registration of
transfer thereof; and if a service charge will be made for
the registration of transfer or exchange of Securities of
such series the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series;
(v) the designation of the Trust to which Securities
of such series are to be issued;
(w) any collateral security, assurance or guarantee
for the Securities of such series;
(x) any rights or duties of another Person to assume
the obligations of the Company with respect to the
Securities of such series (whether as joint obligor, primary
obligor, secondary obligor or substitute obligor) and any
rights or duties to discharge and release any obligor with
respect to the Securities of such series or the Indenture to
the extent related to such series; and
(y) any other terms of the Securities of such series
not inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially
identical, except as to principal amount and date of issue and
except as may be set forth in the terms of such series as
contemplated above. The Securities of each series shall be
subordinated in right of payment to Senior Indebtedness as
provided in Article Fifteen.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, the Securities of
each series shall be issuable in denominations of $25 and any
integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, the Securities
shall be executed on behalf of the Company by an Authorized
Officer and may have the corporate seal of the Company affixed
thereto or reproduced thereon attested by any other Authorized
Officer or by the Secretary or an Assistant Secretary of the
Company. The signature of any or all of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers or the Secretary or an Assistant Secretary of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, establishing such terms;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have
been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued and delivered by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been
duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company,
entitled to the benefits provided by this Indenture,
and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law).
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, each Security shall
be dated the date of its authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, no Security shall
be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating
Agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they
are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, after the
preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable,
without charge to the Holder thereof, for definitive Securities
of such series upon surrender of such temporary Securities at the
office or agency of the Company maintained pursuant to Section
602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities for such exchange, the Company
shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive
Securities of the same series, of authorized denominations and of
like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series, a register (all registers kept in
accordance with this Section being collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series and the
registration of transfer thereof. The Company shall designate
one Person to maintain the Security Register for the Securities
of each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices as an office in
which a register with respect to the Securities of one or more
series shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of such
series. The Security Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, upon
surrender for registration of transfer of any Security of such
series at the office or agency of the Company maintained pursuant
to Section 602 in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more
new Securities of the same series, of authorized denominations
and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, any
Security of such series may be exchanged at the option of the
Holder, for one or more new Securities of the same series, of
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, no service charge
shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section
304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series during a period of 15 days
immediately preceding the date notice of redemption of the
Securities of such series is given (or stating that all
Outstanding Securities of such series are called for redemption)
or (b) any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Subject to Section 311, any interest on any Security of
any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall promptly cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest, if any, on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with the customary practices of the Security Registrar
at the time in effect, and the Security Registrar shall not be
required to destroy any such certificates. The Security
Registrar shall promptly deliver a certificate of disposition to
the Trustee and the Company unless, by a Company Order, similarly
delivered, the Company shall direct that canceled Securities be
returned to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance with
this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months and for any
period shorter than a full month, on the basis of the actual
number of days elapsed in such period.
SECTION 311. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the
Securities of any series hereunder, to extend interest payment
periods on all Securities of one or more series, if so specified
as contemplated by Section 301 with respect to such Securities
and upon such terms as may be specified as contemplated by
Section 301 with respect to such Securities.
SECTION 312. ADDITIONAL INTEREST.
So long as any Preferred Securities remain outstanding,
if the Trust which issued such Preferred Securities shall be
required to pay, with respect to its income derived from the
interest payments on the Securities of any series, any amounts
for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed by the United
States, or any other taxing authority, then, in any such case,
the Company will pay as interest on such series such additional
interest ("Additional Interest") as may be necessary in order
that the net amounts received and retained by such Trust after
the payment of such taxes, duties, assessments or governmental
charges shall result in such Trust's having such funds as it
would have had in the absence of the payment of such taxes,
duties, assessments or governmental charges.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series) in accordance with
this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction
or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be
selected by the Trustee from the Outstanding Securities of such
series not previously called for redemption, by such method as
shall be provided for any particular series, or, in the absence
of any such provision, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of such series or any integral
multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized
denomination for Securities of such series; provided, however,
that if, as indicated in an Officer's Certificate, the Company
shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, and less than all of
such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so
directed by Company Order, shall select for redemption all or any
principal amount of such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner
provided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series are
to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal
amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series, of any authorized denomination
requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 502.
Each sinking fund payment shall be applied to the redemption of
Securities of the series in respect of which it was made as
provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series in respect of which a mandatory sinking fund payment is to
be made and (b) may apply as a credit Securities of such series
which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of
all or any part of such mandatory sinking fund payment with
respect to the Securities of such series; provided, however, that
no Securities shall be applied in satisfaction of a mandatory
sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by delivering and crediting
Securities of such series pursuant to Section 502 and stating the
basis for such credit and that such Securities have not
previously been so credited, and the Company shall also deliver
to the Trustee any Securities to be so delivered.
If the Company shall not have delivered such Officer's
Certificate and, to the extent applicable, all such Securities,
the next succeeding sinking fund payment for such series shall be
made entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 404. Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if
any, and interest, if any (including Additional Interest), on the
Securities of each series in accordance with the terms of such
Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series an office or agency where payment
of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where
notices and demands to or upon the Company in respect of such
Securities and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency and
prompt notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall fail
to maintain any such required office or agency in respect of
Securities of any series, or shall fail to furnish the Trustee
with the address thereof, payment of such Securities shall be
made, registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may be served
at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent for all such purposes in
any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, for any or all of the foregoing purposes and
may from time to time rescind such designations; provided,
however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series, no
such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for
such purposes in each Place of Payment for such Securities in
accordance with the requirements set forth above. The Company
shall give prompt written notice to the Trustee, and prompt
notice to the Holders in the manner specified in Section 106, of
any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, it shall, on
or before each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and premium or interest so
becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company (or any
other obligor on such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, it shall, on or before
each due date of the principal of and premium, if any, and
interest, if any, on such Securities, deposit with such Paying
Agents sums sufficient (without duplication) to pay the principal
and premium or interest so becoming due, such sums to be held in
trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of any
failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, other than the Company or the Trustee,
to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than 1 in each year, commencing 1,
---- ----
, the Company shall deliver to the Trustee an Officer's
----
Certificate which need not comply with Section 102, executed by
the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture, and making any other
statements as may be required by the provisions of Section
314(a)(4) of the Trust Indenture Act.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in (a)
Section 602 or any additional covenant or restriction specified
with respect to the Securities of any series, as contemplated by
Section 301, if before the time for such compliance the Holders
of at least a majority in aggregate principal amount of the
Outstanding Securities of all series with respect to which
compliance with Section 602 or such additional covenant or
restriction is to be omitted, considered as one class, shall, by
Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision
or condition and (b) Section 604, 605 or Article Eleven if before
the time for such compliance the Holders of at least a majority
in principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect; provided, however, so long as a Trust holds Securities of
any series, such Trust may not waive compliance or waive any
default in compliance by the Company with any covenant or other
term contained in this Indenture or the Securities of such series
without the approval of the holders of at least a majority in
aggregate liquidation preference of the outstanding Preferred
Securities issued by such Trust affected, obtained as provided in
the Trust Agreement pertaining to such Trust.
SECTION 608. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred Securities of any series
remain outstanding, the Company shall not declare or pay any
dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Company's capital stock, or
make any guarantee payments with respect to the foregoing (other
than payments under the Guarantee relating to such Preferred
Securities) if at such time (a) the Company shall be in default
with respect to its payment or other obligations under the
Guarantee relating to such Preferred Securities, (b) there shall
have occurred and be continuing a payment default (whether before
or after expiration of any period of grace) or an Event of
Default hereunder or (c) the Company shall have elected to extend
any interest payment period as provided in Section 311, and any
such period, or any extension thereof, shall be continuing.
SECTION 609. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Securities of any series remain
outstanding, the Company shall (i) maintain direct or indirect
ownership of all interests in the Trust which issued such
Preferred Securities, other than such Preferred Securities, (ii)
not voluntarily (to the extent permitted by law) dissolve,
liquidate or wind up such Trust, except in connection with a
distribution of the Securities to the holders of the Preferred
Securities in liquidation of such Trust, (iii) remain the sole
Depositor under the Trust Agreement (the "Depositor") of such
Trust and timely perform in all material respects all of its
duties as Depositor of such Trust, and (iv) use reasonable
efforts to cause such Trust to remain a business trust and
otherwise continue to be treated as a grantor trust for Federal
income tax purposes provided that any permitted successor to the
Company under this Indenture may succeed to the Company's duties
as Depositor of such Trust; and provided further that the Company
may permit such Trust to consolidate or merge with or into
another business trust or other permitted successor under the
Trust Agreement pertaining to such Trust so long as the Company
agrees to comply with this Section 609 with respect to such
successor business trust or other permitted successor.
SECTION 610. RIGHTS OF HOLDERS OF PREFERRED SECURITIES.
The Company agrees that, for so long as any Preferred
Securities remain outstanding, its obligations under this
Indenture will also be for the benefit of the holders from time
to time of Preferred Securities, and the Company acknowledges and
agrees that such holders will be entitled to enforce this
Indenture, as third party beneficiaries, directly against the
Company to the same extent as if such holders of Preferred
Securities held a principal amount of Securities equal to the
stated liquidation amount of the Preferred Securities held by
such holders.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Government
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series, such Securities or
portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order
stating that the money and Government Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703; and
(y) if Government Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Government Obligations and do
not contain provisions permitting the redemption or
other prepayment at the option of the issuer thereof,
and an opinion of an independent public accountant of
nationally recognized standing, selected by the
Company, to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Government Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the
covenants contained in Sections 602 and 603) or any other
covenants made in respect of such Securities or portions thereof
as contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series is to be provided for in the manner and
with the effect provided in this Section, the Security Registrar
shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Government Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article Seven
shall survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Government Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Government
Obligations or the principal or interest received in respect of
such Government Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, shall be required to
return the money or Government Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article Seven shall
survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Government Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Government Obligations nor the money
deposited pursuant to Section 701, nor the principal or interest
payments on any such Government Obligations, shall be withdrawn
or used for any purpose other than, and shall be held in trust
for, the payment of the principal of and premium, if any, and
interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603; provided,
however, that, so long as there shall not have occurred and be
continuing an Event of Default, any cash received from such
principal or interest payments on such Government Obligations, if
not then needed for such purpose, shall, to the extent
practicable and upon Company Request, be invested in Government
Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys
and the principal of and interest on any other Government
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and
to become due on such Securities or portions thereof on and prior
to the Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as received, free
and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further,
that, so long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with this
Section on the Maturity of all such Securities in excess of the
amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over
to the Company free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have
occurred and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events:
(a) failure to pay interest, if any, including any
Additional Interest, on any Security of such series within
30 days after the same becomes due and payable (whether or
not payment is prohibited by the provisions of Article
Fifteen hereof); provided, however, that a valid extension
of the interest payment period by the Company as
contemplated in Section 311 of this Indenture shall not
constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series at its Maturity (whether
or not payment is prohibited by the provisions of Article
Fifteen hereof); or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to
the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Securities of such
series but not applicable to all Outstanding Securities shall
have occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal of all
Securities of such series and interest accrued thereon to be due
and payable immediately (provided that the payment of principal
and interest on such Securities shall remain subordinated to the
extent provided in Article Fifteen hereof). If an Event of
Default due to default in the performance of any other of the
covenants or agreements herein applicable to all Outstanding
Securities or an Event of Default specified in Section 801(d) or
(e) shall have occurred and be continuing, either the Trustee or
the Holders of not less than 33% in principal amount of all
Securities then Outstanding (considered as one class), and not
the Holders of the Securities of any one of such series, may
declare the principal of all Securities and interest accrued
thereon to be due and payable immediately (provided that the
payment of principal and interest on such Securities shall remain
subordinated to the extent provided in the Indenture). As a
consequence of each such declaration (herein referred to as a
declaration of acceleration) with respect to Securities of any
series, the principal amount of such Securities and interest
accrued thereon shall become due and payable immediately.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of
such series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest, if any, at
the rate or rates prescribed therefor in such
Securities;
(4) all amounts due to the Trustee under Section
907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the nonpayment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and
interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Subject to the provisions of Article Fifteen, any money
collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal or premium, if any, or interest, if any, upon
presentation of the Securities in respect of which or for the
benefit of which such money shall have been collected and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 907;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and
be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307 and 311)
interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in conflict
with any rule of law or with this Indenture. The Trustee may
take any other action, deemed proper by the Trustee, which is not
inconsistent with any such direction. Before proceeding to
exercise any right or power hereunder at the direction of such
Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected;
provided, however, that so long as a Trust holds the Securities
of any series, such Trust may not waive any past default without
the consent of at least a majority in aggregate liquidation
preference of the outstanding Preferred Securities issued by such
Trust affected, obtained as provided in the Trust Agreement
pertaining to such Trust.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The 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 Indenture
against the 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) No provision of this Indenture shall require the
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 against
such risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this
Indenture to the contrary, the duties and responsibilities
of the Trustee under this Indenture shall be subject to the
protections, exculpations and limitations on liability
afforded to the Trustee under the provisions of the Trust
Indenture Act.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series of which it has knowledge (within the
meaning of Section 903(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; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 45 days
after the occurrence thereof. 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 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting in good faith 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 or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, 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 Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the 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 Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
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 Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the 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 Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the 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 Company, personally or by agent or
attorney;
(g) the 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
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 Trustee shall not be charged with knowledge of
any default or Event of Default, as the case may be, with
respect to the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the default or
Event of Default, as the case may be, or (2) written notice
of such default or Event of Default, as the case may be,
shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 908 and
913, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (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 the Trustee's negligence,
wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless
from and against, any loss, liability or expense reasonably
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, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d)
or Section 801(e), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 907 shall survive the
termination of this Indenture.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of (i) the
Securities of any other series, (ii) the Trust Agreement and the
Guarantee Agreement pertaining to each Trust; or (iii) any
securities of any series issued under the Indenture (For
Unsecured Debt Securities Series A) dated as of October 1, 1997
of the Company to The Bank of New York, as trustee, the Indenture
(For Unsecured Debt Securities Series B) dated as of October 1,
1997 of the Company to The Bank of New York, as trustee, the
Indenture (For Unsecured Debt Securities Series C), dated as of
January 1, 1998 of the Company to The Bank of New York, as
trustee, the Purchase Contract Agreement dated as of July 1, 1998
of the Company to The Bank of New York, as agent, attorney-in-
fact and trustee, the Indenture (For Unsecured Debt Securities
Series D and Series E), dated as of July 1, 1998 of the Company
to The Bank of New York, as trustee, the Indenture (For Unsecured
Debt Securities Series F), dated as of October 1, 1998 of the
Company to The Bank of New York, as trustee or the Indenture (For
Unsecured Debt Securities Series G), dated as of October 1, 1998
of the Company to The Bank of New York, as trustee.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation 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 $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) 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 $50,000,000 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
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. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Company; provided that so long as any Preferred
Securities remain outstanding, the Trust which issued such
Preferred Securities shall not execute any Act to remove the
Trustee without the consent of the holders of a majority in
aggregate liquidation preference of Preferred Securities
issued by such Trust outstanding, obtained as provided in
the Trust Agreement pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 after written request therefor by the Company or by
any Holder who has been a bona fide Holder for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written
request therefor by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in Subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(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 Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to Subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor 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 Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
Subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
Subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this Subsection (f).
(g) The Company (or, should the Company fail so to act
promptly, the successor trustee at the expense of the
Company) shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written
notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names
and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its
corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and deliver
to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in Subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series,
which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original
issuance and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation 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 act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
------------------------
As Trustee
By
----------------------
As Authenticating
Agent
By
----------------------
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than 1 and 1 in
---- --------
each year, commencing 1, , and at such other times
-------- ----
as the Trustee may request in writing, the Company shall furnish
or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than 1 in each year, commencing
--------
1, , the Trustee shall transmit to the Holders, the
-------- ----
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding
---------
15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchange.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into
any other Person, or convey or otherwise transfer or lease its
properties and assets substantially as an entirety to any Person,
unless
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be
a Person organized and validly existing under the laws of
the United States, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual
payment of the principal of and premium, if any, and
interest, if any, on all Outstanding Securities and the
performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such
transaction no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, or
other transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by
the Company into any other Person or any conveyance, or other
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
successor Person formed by such consolidation or into which the
Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all
as provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or
more specified series, or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this
Indenture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series Outstanding on the date of such
indenture supplemental hereto in any material respect, such
change, elimination or addition shall become effective with
respect to such series only pursuant to the provisions of
Section 1202 hereof or when no Security of such series
remains Outstanding; or
(e) to provide collateral security for all but not
part of the Securities; or
(f) to establish the form or terms of Securities of
any series as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a noncertificated
system of registration for all, or any series of, the
Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities shall be payable, (2) all or
any series of Securities may be surrendered for registration
of transfer, (3) all or any series of Securities may be
surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of
Securities and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions hereof or to add other provisions with respect
to matters or questions arising under this Indenture, provided
that such action shall not adversely affect the interests of
the Holders of Securities of any series in any material
respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one or
more changes to, or the elimination of, any provisions
hereof which, at the date of the execution and delivery
hereof or at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to
effect such changes or elimination, and the Company and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to evidence
such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act
of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of Securities
of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on (except as
provided in Section 311 hereof), any Security, or reduce the
principal amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon) or change
the method of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the coin or
currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Security (or,
in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such
Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series (or, if applicable, in
liquidation preference of any series of Preferred
Securities), the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements
of Section 1304 for quorum or voting, without, in any such
case, the consent of the Holders of each Outstanding
Security of such series, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, except to increase the percentages in principal
amount referred to in this Section or such other Sections or
to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the
requirements of Sections 911(b), 914 and 1201(h).
Notwithstanding the foregoing, so long as any of the Preferred
Securities remain outstanding, the Trustee may not consent to a
supplemental indenture under this Section 1202 without the prior
consent, obtained as provided in a Trust Agreement pertaining to
a Trust which issued such Preferred Securities, of the holders of
not less than a majority in aggregate liquidation preference of
all Preferred Securities issued by such Trust affected,
considered as one class, or, in the case of changes described in
clauses (a), (b) and (c) above, 100% in aggregate liquidation
preference of all such Preferred Securities then outstanding
which would be affected thereby, considered as one class. A
supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or the
elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental
Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series may be called at any time and from time to time
pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series for any
purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of
New York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. Notice of
every such meeting, setting forth the time and the place of
such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series by the Company or by the Holders of 33% in aggregate
principal amount of all of such series, considered as one
class, for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may
determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in Subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series shall be valid without notice if the
Holders of all Outstanding Securities of such series are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or by such of them as
are not present at the meeting in person or by proxy, and by
the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series a Person shall be (a) a
Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for
a meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series,
considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Securities of such series, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour
of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series,
be dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by Section 1202, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series with
respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series, considered as one
class, may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series,
considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of
Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled
to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series with respect
to which the meeting shall have been called, held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports of
all votes cast at the meeting. A record of the proceedings of
each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, on any
Securities, or any part thereof, or for any claim based thereon
or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator,
shareholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor
corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, shareholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and premium, if any, and
interest, if any, on each and all of the Securities is hereby
expressly subordinated and subject to the extent and in the
manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy
proceedings or any receivership, liquidation, reorganization or
other similar proceedings in respect of the Company or a
substantial part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1503, that (i) a default shall have
occurred with respect to the payment of principal of or interest
on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other
than a default in the payment of principal or interest or other
monetary amounts due and payable) in respect of any Senior
Indebtedness, as defined therein or in the instrument under which
the same is outstanding, permitting the holder or holders thereof
to accelerate the maturity thereof (with notice or lapse of time,
or both), and such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default shall
not have been cured or waived or shall not have ceased to exist,
or (c) that the principal of and accrued interest on the
Securities of any series shall have been declared due and payable
pursuant to Section 801 and such declaration shall not have been
rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness
shall first be entitled to receive payment of the
full amount due thereon, or provision shall be
made for such payment in money or money's worth,
before the Holders of any of the Securities are
entitled to receive a payment on account of the
principal of or interest on the indebtedness
evidenced by the Securities, including, without
limitation, any payments made pursuant to Articles
Four and Five;
(2) any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, to which
any Holder or the Trustee would be entitled except
for the provisions of this Article, shall be paid
or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise,
directly to the holders of such Senior
Indebtedness or their representative or
representatives or to the trustee or trustees
under any indenture under which any instruments
evidencing any of such Senior Indebtedness may
have been issued, ratably according to the
aggregate amounts remaining unpaid on account of
such Senior Indebtedness held or represented by
each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of
the indebtedness evidenced by the Securities or to
the Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, in
respect of principal of or interest on the
Securities or in connection with any repurchase by
the Company of the Securities, shall be received
by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made
for such payment in money or money's worth, such
payment or distribution in respect of principal of
or interest on the Securities or in connection
with any repurchase by the Company of the
Securities shall be paid over to the holders of
such Senior Indebtedness or their representative
or representatives or to the trustee or trustees
under any indenture under which any instruments
evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for application
to the payment of all Senior Indebtedness
remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the
123rd day following the date of deposit of cash or Government
Obligations pursuant to Section 701 (provided all conditions set
out in such Section shall have been satisfied), the funds so
deposited and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness including, without
limitation, those arising under this Article Fifteen; provided
that no event described in clauses (d) and (e) of Section 801
with respect to the Company has occurred during such 123-day
period.
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan or
reorganization or readjustment which are subordinate in right of
payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety,
to another corporation upon the terms and conditions provided for
in Article Eleven hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of
this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with
the conditions stated in Article Eleven hereof. Nothing in
Section 1501 or in this Section 1502 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR
INDEBTEDNESS.
Any failure by the Company to make any payment on or
perform any other obligation in respect of Senior Indebtedness,
other than any indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company for money
borrowed (or any deferral, renewal, extension or refunding
thereof) or any other obligation as to which the provisions of
this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation,
shall not be deemed a default under clause (b) of Section 1502 if
(i) the Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A) no final
judgment relating to such dispute shall have been issued against
the Company which is in full force and effect and is not subject
to further review, including a judgment that has become final by
reason of the expiration of the time within which a party may
seek further appeal or review, or (B) in the event that a
judgment that is subject to further review or appeal has been
issued, the Company shall in good faith be prosecuting an appeal
or other proceeding for review and a stay or execution shall have
been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash
(or securities or other property satisfactory to such holders) in
full payment of such Senior Indebtedness then outstanding.
Subject to the prior payment in full of all Senior Indebtedness,
the rights of the Holders of the Securities shall be subrogated
to the rights of the holders of Senior Indebtedness to receive
any further payments or distributions of cash, property or
securities of the Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Securities shall be
paid in full; and such payments or distributions of cash,
property or securities received by the Holders of the Securities,
by reason of such subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders
and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any order
or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization
proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders
of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon, and all other facts pertinent thereto or
to this Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise, all
matured principal of Senior Indebtedness and interest and
premium, if any, thereon shall first be paid in full before any
payment of principal or premium, if any, or interest, if any, is
made upon the Securities or before any Securities can be acquired
by the Company or any sinking fund payment is made with respect
to the Securities (except that required sinking fund payments may
be reduced by Securities acquired before such maturity of such
Senior Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth
in this Article with respect to any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior
Indebtedness. Nothing in this Article shall deprive the Trustee
of any of its rights as such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any
other provision of the Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee
unless and until the Trustee shall have received written notice
thereof from the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or representatives
of such holder and, prior to the receipt of any such written
notice, the Trustee shall be entitled, subject to Section 901, in
all respects to assume that no such facts exist; provided,
however, that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may become
payable for any purpose, or in the event of the execution of an
instrument pursuant to Section 702 acknowledging satisfaction and
discharge of this Indenture, then if prior to the second Business
Day preceding the date of such execution, the Trustee shall not
have received with respect to such moneys the notice provided for
in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were
received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such date;
provided, however, that no such application shall affect the
obligations under this Article of the persons receiving such
moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR
INDEBTEDNESS.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the payment of the
principal of and premium, if any, and interest, if any, on the
Securities, at any time or from time to time and in their
absolute discretion, agree with the Company to change the manner,
place or terms of payment, change or extend the time of payment
of, or renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from exercising
any other of their rights under the Senior Indebtedness
including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and objectives as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness,
and shall not be liable to any such holders if it shall
mistakenly pay over or deliver to the Holders or the Company or
any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1507, 1508
and 1510 shall not apply to the Company if it acts as Paying
Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT
IMPAIRED.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any
time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any noncompliance
by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Indenture shall be subject
to the provisions of this Article, so far as the same may be
applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be of no
further effect, and the Securities shall no longer be
subordinated in right of payment to the prior payment of Senior
Indebtedness, if the Company shall have delivered to the Trustee
a notice to such effect. Any such notice delivered by the
Company shall not be deemed to be a supplemental indenture for
purposes of Article Twelve.
ARTICLE SIXTEEN
JUNIOR SUBORDINATED DEBENTURES
SECTION 1601. DESIGNATION OF JUNIOR SUBORDINATED DEBENTURES.
There is hereby created a series of Securities
designated " % Junior Subordinated Debentures, Series A" (herein
--
sometimes referred to as "Series A Subordinated Debentures") and
limited in aggregate principal amount (except as contemplated in
Section 301(b) hereof) to $ . The form and terms of
-----------
the Series A Subordinated Debentures shall be established in an
Officer's Certificate pursuant to Sections 201 and 301.
-------------------------
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first
above written.
TEXAS UTILITIES COMPANY
By:
--------------------------
THE BANK OF NEW YORK, Trustee
By:
--------------------------
Walter N. Gitlin
Vice President
Exhibit 4(h)
TEXAS UTILITIES COMPANY
OFFICER'S CERTIFICATE
Kirk R. Oliver, the Treasurer of Texas Utilities Company
(the "Company"), pursuant to the authority granted in the Board
Resolutions of the Company, dated __________________, and
Sections 201, 301 and 1601 of the Indenture defined herein, does
hereby certify to The Bank of New York (the "Trustee"), as
Trustee under the Indenture (For Unsecured Subordinated Debt
Securities relating to Trust Securities) of the Company dated as
of _______________ (the "Indenture") that:
1. The securities of the first series to be issued under
the Indenture shall be designated "__% Junior
Subordinated Debentures, Series A" (the "Debentures of
the First Series"). The Debentures of the First Series
are to be issued to The Bank of New York, as Property
Trustee (the "Property Trustee") of TXU Capital I, a
Delaware statutory business trust (the "Trust"). All
capitalized terms used in this certificate which are
not defined herein but are defined in the Indenture
shall have the meanings set forth in the Indenture;
2. The Debentures of the First Series shall be limited in
aggregate principal amount to $___________ at any time
Outstanding, except as contemplated in Section 301(b)
of the Indenture;
3. The Debentures of the First Series shall mature and the
principal shall be due and payable together with all
accrued and unpaid interest thereon on ______, ____;
4. The Debentures of the First Series shall bear interest
from, and including, the date of original issuance, at
the rate of ___% per annum, payable quarterly in
arrears on _______ 1, _____ 1, ____ 1 and _______ 1 of
each year (each, an "Interest Payment Date") commencing
_______ 1, 199_. With respect to the Debentures of the
First Series, the term "Interest Period" shall mean
each period from, and including, an Interest Payment
Date to, but excluding, the next succeeding Interest
Payment Date, except that the first Interest Period
shall commence on the date of original issuance. The
amount of interest payable for any Interest Period will
be computed on the basis of the actual number of days
elapsed in a 360-day year. Interest on the Debentures
of the First Series will accrue from, and including,
the date of original issuance, but if interest has been
paid on such Debentures of the First Series, then from
the most recent Interest Payment Date to which interest
has been paid or duly provided for. In the event that
any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of
such delay), in each case with the same force and
effect as if made on such Interest Payment Date.
5. Each installment of interest on a Debenture of the
First Series shall be payable to the Person in whose
name such Debenture of the First Series is registered
in the Securities Register on the close of business on
the fifteenth day (whether or not a Business Day)
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Debentures of the First
Series; provided, however, that the Company shall have
the right to change the Regular Record Date by one or
more Officer's Certificates. Any installment of
interest on the Debentures of the First Series not
punctually paid or duly provided for shall forthwith
cease to be payable to the Holders of such Debentures
of the First Series on such Regular Record Date, and
may be paid to the Persons in whose name the Debentures
of the First Series are registered in the Securities
Register at the close of business on a Special Record
Date to be fixed by the Trustee for the payment of such
Defaulted Interest. Notice of such Defaulted Interest
and Special Record Date shall be given to the Holders
of the Debentures of the First Series not less than 10
days prior to such Special Record Date in any lawful
manner not inconsistent with the requirements of any
securities exchange on which such Senior Notes of the
First Series may be listed, and upon such notice as may
be required by such exchange, all as more fully
provided in the Indenture;
6. The principal and each installment of interest on the
Debentures of the First Series shall be payable at, and
registration and registration of transfers and
exchanges in respect of the Debentures of the First
Series may be effected at, the office or agency of the
Company in The City of New York; provided that payment
of interest may be made at the option of the Company by
check mailed to the address of the persons entitled
thereto as such addresses appear in the Securities
Register. Notices and demands to or upon the Company
in respect of the Debentures of the First Series may be
served at such office or agency of the Company in The
City of New York. The Corporate Trust Office of the
Trustee will initially be the agency of the Company for
such payment, registration and registration of
transfers and exchanges and services of notices and
demands, and the Company hereby appoints the Trustee as
its agent for all such purposes; provided, however,
that the Company reserves the right to change, by one
or more Officer's Certificates, any such office or
agency and such agent. The Trustee will be the
Security Registrar and the Paying Agent for the
Debentures of the First Series;
7. The Debentures of the First Series will be redeemable
at the option of the Company on or after ______, ____,
at any time in whole and from time to time in part,
upon not less than 30 nor more than 60 days' notice
given as provided in the Indenture, at a Redemption
Price equal to 100% of the principal amount thereof
plus accrued and unpaid interest thereon to the
Redemption Date.
If at any time a Tax Event shall occur and be
continuing and either (i) in the opinion of counsel to
the Company experienced in such matters, there would in
all cases, after effecting the termination of the
Trust, after satisfaction of liabilities to creditors
of the Trust, if any, as provided by applicable law,
and the distribution of the Debentures of the First
Series to the holders of the Preferred Securities, in
exchange therefor, be more than an insubstantial risk
that an Adverse Tax Consequence (as defined below)
would continue to exist or (ii) the Debentures of the
First Series are not held by the Trust, then the
Company shall have the right to redeem the Debentures
of the First Series, in whole but not in part, at any
time within 90 days following the occurrence of the Tax
Event, at 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the Redemption
Date.
"Tax Event" means the receipt by the Trust or the
Company of an opinion of counsel experienced in such
matters to the effect that, as a result of (a) any
amendment to, clarification of, or change (including
any announced prospective change) in, the laws or
treaties (or any regulations thereunder) of the United
States or any political subdivision or taxing authority
thereof or therein affecting taxation, (b) any judicial
decision or any official administrative pronouncement,
ruling, regulatory procedure, notice or announcement
(including any notice or announcement of intent to
issue or adopt any such administrative pronouncement,
ruling, regulatory procedure or regulation) (each, an
"Administrative Action"), or (c) any amendment to,
clarification of, or change in the official position or
the interpretation of any such Administrative Action or
judicial decision or any interpretation or
pronouncement that provides for a position with respect
to such Administrative Action or judicial decision that
differs from the theretofore generally accepted
position, in each case by any legislative body, court,
governmental authority or regulatory body, irrespective
of the time or manner in which such amendment,
clarification or change is introduced or made known,
which amendment, clarification, or change is effective,
which Administrative Action is taken or which judicial
decision is issued, in each case on or after the date
of issuance of the Preferred Securities, there is more
than an insubstantial risk that (i) the Trust is, or
will be, subject to United States federal income tax
with respect to interest received on the Debentures of
the First Series, (ii) interest payable by the Company
on the Debentures of the First Series is not, or will
not be, fully deductible by the Company for United
States federal income tax purposes, or (iii) the Trust
is, or will be, subject to more than a de minimis
amount of other taxes, duties or other governmental
charges (each of the circumstances described in clauses
(i), (ii) or (iii) being an "Adverse Tax Consequence");
8. So long as any Debentures of the First Series are
Outstanding, the failure of the Company to pay interest
on any Debentures of the First Series within 30 days
after the same becomes due and payable (whether or not
payment is prohibited by the provisions of Article
Fifteen of the Indenture) shall constitute an Event of
Default; provided, however, that a valid extension of
the interest payment period by the Company as
contemplated in Section 311 of the Indenture and
paragraph (9) of this Certificate shall not constitute
a failure to pay interest for this purpose;
9. Pursuant to Section 311 of the Indenture, the Company
shall have the right, at any time and from time to time
during the term of the Debentures of the First Series,
so long as the Company is not in default in the payment
of interest on the Securities of any series under the
Indenture, to extend the interest payment period to a
period not exceeding 20 consecutive quarterly periods
(an "Extension Period") during which period interest
(calculated for each Interest Period in the manner
provided for in paragraph (4) of this Certificate, as
if the interest payment period had not been so
extended) will be compounded quarterly. At the end of
the Extension Period, the Company shall pay all
interest accrued and unpaid (together with interest
thereon at the rate specified for the Debentures of the
First Series, compounded quarterly, to the extent
permitted by applicable law). However, during any such
Extension Period, the Company shall not declare or pay
any dividend or distribution (other than a dividend or
distribution in common stock of the Company) on, or
redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, repurchase or
redeem any indebtedness that is pari passu with the
Debentures of the First Series, or make any guarantee
payments with respect to the foregoing ("Restricted
Payments"). Prior to the termination of any such
Extension Period, the Company may further extend the
interest payment period, provided that such Extension
Period together with all such previous and further
extensions thereof shall not exceed 20 consecutive
quarterly periods at any one time or extend beyond the
Maturity of the Debentures of the First Series. Any
Extension Period with respect to payment of interest on
the Debentures of the First Series, or any extended
interest payment period in respect of similar securities
will apply to the Debentures of the First Series and all
such securities and will also apply to distributions with
respect to the Preferred Securities and all other
securities with terms substantially the same as the
Preferred Securities. Upon the termination of any such
Extension Period and the payment of all amounts then due,
including interest on deferred interest payments, the
Company may elect to begin a new Extension Period,
subject to the above requirements. No interest shall
be due and payable during an Extension Period, except
at the end thereof. The Company will give the Trust
and the Trustee notice of its election of an Extension
Period before the Business Day prior to the record date
for the distribution which would occur but for such
election and will cause the Trust to send notice of
such election to the holders of Preferred Securities;
10. At any time, the Company will have the right to
dissolve the Trust and, after satisfaction of
liabilities to creditors, if any, of the Trust as
provided by applicable law, cause the Debentures of the
First Series to be distributed to the holders of the
Preferred Securities;
11. So long as any Securities are outstanding under the
Indenture, the Company shall not make any Restricted
Payments at any time the Company is in default under
the Guarantee with respect to the Trust or is in
default with respect to payments due on any Outstanding
Securities;
12. In the event that, at any time subsequent to the
initial authentication and delivery of the Debentures
of the First Series, the Debentures of the First Series
are to be held in global form by a securities
depositary, the Company may at such time establish the
matters contemplated in clause (r) in the second
paragraph of Section 301 of the Indenture in an
Officer's Certificate supplemental to this Certificate;
13. No service charge shall be made for the registration of
transfer or exchange of the Debentures of the First
Series; provided, however, that the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection
with the exchange or transfer;
14. The Debentures of the First Series shall have such
other terms and provisions as are provided in the form
thereof set forth in Exhibit A hereto, and shall be
issued in substantially such form;
15. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Debentures of the First Series and the
definitions in the Indenture relating thereto and in
respect of which this certificate is made;
16. The statements contained in this certificate are based
upon the familiarity of the undersigned with the
Indenture, the documents accompanying this certificate,
and upon discussions by the undersigned with officers
and employees of the Company familiar with the matters
set forth herein;
17. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable
the undersigned to express an informed opinion whether
or not such covenants and conditions have been complied
with;
18. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including
any covenants compliance with which constitutes a
condition precedent) to the authentication and delivery
of the Debentures of the First Series requested in the
accompanying Company Order have been complied with;
19. If the Company shall make any deposit of money and/or
Government Obligations with respect to any Debentures
of the First Series, or any portion of the principal
amount thereof, as contemplated by Section 701 of the
Indenture, the Company shall not deliver an Officer's
Certificate described in clause (z) in the first
paragraph of said Section 701 unless the Company shall
also deliver to the Trustee, together with such
Officer's Certificate, either:
(A) an instrument wherein the Company,
notwithstanding the satisfaction and discharge of its
indebtedness in respect of the Debentures of the First
Series, shall assume the obligation (which shall be
absolute and unconditional) to irrevocably deposit with
the Trustee or Paying Agent such additional sums of
money, if any, or additional Government Obligations
(meeting the requirements of Section 701), if any, or
any combination thereof, at such time or times, as
shall be necessary, together with the money and/or
Government Obligations theretofore so deposited, to pay
when due the principal of and premium, if any, and
interest due and to become due on such Debentures of
the First Series or portions thereof, all in accordance
with and subject to the provisions of said Section 701;
provided, however, that such instrument may state that
the obligation of the Company to make additional
deposits as aforesaid shall be subject to the delivery
to the Company by the Trustee of a notice asserting the
deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing,
selected by the Trustee, showing the calculation
thereof; or
(B) an Opinion of Counsel, based on a change in
law, to the effect that the Holders of such Debentures
of the First Series, or portions of the principal
amount thereof, will not recognize income, gain or loss
for United States federal income tax purposes as a
result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be
subject to United States federal income tax on the same
amounts, at the same times and in the same manner as if
such satisfaction and discharge had not been effected.
20. The obligations of the Company under the Senior Notes
of the First Series and under the Indenture to the
extent related to such series will be subject to
assignment by the Company to and assumption by a wholly
owned Subsidiary of the Company at any time, as
provided in the form set forth in Exhibit A hereto with
respect to the Senior Notes of the First Series.
In the event that such Subsidiary assumes the
obligations under the Senior Notes of the First Series,
the Company will unconditionally guarantee payment of
the Senior Notes of the First Series and will execute a
guarantee in form and substance satisfactory to the
Trustee. Pursuant to the guarantee, the Company will
fully and unconditionally guarantee the payment of the
obligations of such assuming Subsidiary under the
Senior Notes of the First Series and under the
Indenture, including, without limitation, payment, as
and when due, of the principal of, premium, if any, and
interest on, the Senior Notes of the First Series.
Other than the obligation to make such payments, the
Company will be released and discharged from all of its
other obligations under the Indenture. The foregoing
assignment and assumption shall be in compliance with
applicable law including the Securities Act of 1933.
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this _____ day of _________________.
__________________________
<PAGE>
NO._______________
Cusip NO.__________
EXHIBIT A
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
TEXAS UTILITIES COMPANY
__% JUNIOR SUBORDINATED DEBENTURES, SERIES A
TEXAS UTILITIES COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (herein referred to
as the "Company", which term includes any successor Person under
the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to
____________________________________, or registered assigns, the
principal sum of ____________________ Dollars ($ ) on
____________, and, except as hereinafter provided, to pay
interest on said principal sum, from and including the date of
original issuance, but if interest has been paid on this
Security, then from, and including, the most recent Interest
Payment Date to which interest has been paid or duly provided
for, quarterly in arrears on _______ 1, _____ 1, ____ 1 and
_______ 1 of each year (each an "Interest Payment Date"),
commencing _______________, at the rate of__% per annum, plus
Additional Interest, if any, until the principal hereof is paid
or made available for payment. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of the
actual number of days elapsed in a 360-day year. In the event
that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay), in each case with the
same force and effect as if made on such Interest Payment Date.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the fifteenth day (whether or not a Business Day)
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
<PAGE>
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
TEXAS UTILITIES COMPANY
By:_________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture
(For Unsecured Subordinated Debt Securities relating to Trust
Securities), dated as of ____________ (herein, together with any
amendments thereto, called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the
Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on July 2, 1998 (the "Officer's Certificate"),
creating the series designated on the face hereof, for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $___________.
This Security will be redeemable at the option of the
Company on or after July 1, 2003, at any time in whole and from
time to time in part, upon not less than 30 nor more than 60
days' notice given as provided in the Indenture, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued
and unpaid interest hereon, including Additional Interest, if
any, to the Redemption Date.
If at any time a Tax Event shall occur and be
continuing and either (i) in the opinion of counsel to the
Company experienced in such matters, there would in all cases,
after effecting the termination of the Trust, after satisfaction
of liabilities to creditors of the Trust, if any, as provided by
applicable law, and the distribution of this Security to the
holders of the Preferred Securities of the Trust (the "Preferred
Securities"), in exchange therefor, be more than an insubstantial
risk that an Adverse Tax Consequence (as defined below) would
continue to exist or (ii) this Security is not held by TXU
Capital I, a Delaware statutory business trust (the "Trust"),
then the Company shall have the right to redeem this Security, in
whole but not in part, at any time within 90 days following the
occurrence of the Tax Event, at 100% of the principal amount
thereof plus accrued and unpaid interest hereon, including
Additional Interest, if any, to the Redemption Date.
"Tax Event" means the receipt by the Trust or the
Company of an opinion of counsel experienced in such matters to
the effect that, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective
change) in, the laws or treaties (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial
decision or any official administrative pronouncement, ruling,
regulatory procedure, notice or announcement (including any
notice or announcement of intent to issue or adopt any such
administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any
amendment to, clarification of, or change in the official
position or the interpretation of any such Administrative Action
or judicial decision or any interpretation or pronouncement that
provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore
generally accepted position, in each case by any legislative
body, court, governmental authority or regulatory body,
irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which
amendment, clarification, or change is effective, which
Administrative Action is taken or which judicial decision is
issued, in each case on or after the date of issuance of the
Preferred Securities, there is more than an insubstantial risk
that (i) the Trust is, or will be, subject to United States
federal income tax with respect to interest received on this
Security, (ii) interest payable by the Company on this Security
is not, or will not be, fully deductible by the Company for
United States federal income tax purposes, or (iii) the Trust is,
or will be, subject to more than a de minimis amount of other
taxes, duties or other governmental charges (each of the
circumstances described in clauses (i), (ii) or (iii) being an
"Adverse Tax Consequence").
Interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of
such Security, or one or more Predecessor Securities, of record
at the close of business on the related Regular Record Date
referred to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture contains provisions permitting the Holders of a
majority in aggregate principal amount of the Securities of all
series then Outstanding to waive compliance by the Company with
certain provisions of the Indenture. The Indenture also contains
provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than a majority in aggregate principal amount of the Securities
of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
Pursuant to Section 311 of the Indenture, so long as
the Company is not in default in the payment of interest on the
Securities of any series under the Indenture, the Company shall
have the right, at any time and from time to time during the term
of the Securities of this series, to extend the interest payment
period to a period not exceeding 20 consecutive quarterly periods
(an "Extension Period") during which period interest (calculated
for each Interest Period (as defined in the Officer's
Certificate) in the manner provided for in paragraph (4) of the
Officer's Certificate, as if the interest payment period had not
been so extended) will be compounded quarterly. At the end of
the Extension Period, the Company shall pay all interest accrued
and unpaid hereon (together with interest thereon at the rate
specified for the Securities of this series, compounded
quarterly, to the extent permitted by applicable law) and
Additional Interest, if any; provided, however, that during any
such Extension Period, the Company shall not declare or pay any
dividend or distribution (other than a dividend or distribution
in common stock of the Company) on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its capital
stock, make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any indebtedness that is
pari passu with the Securities of this series, or make any
guarantee payments with respect to the foregoing ("Restricted
Payments"). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment
period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed 20
consecutive quarterly periods at any one time or extend beyond
the Maturity of the Securities of this series. Any Extension
Period with respect to payment of interest on the Securities of
this series, or any extended interest payment period in respect
of similar securities will apply to the Securities of this series
and all such securities and will also apply to distributions with
respect to the Preferred Securities of the Trust (the "Preferred
Securities") and all other securities with terms substantially
the same as the Preferred Securities. Upon the termination of
any such Extension Period and the payment of all amounts then
due, including interest on deferred interest payments, the
Company may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during
an Extension Period, except at the end thereof. The Company
shall give the Trustee notice of its election of an Extension
Period before the Business Day prior to the record date for the
distribution which would occur but for such election.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
Unless an Event of Default, or an event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing, the obligations
of the Company under the Securities of this series and the
Indenture to the extent related to such series may be assigned by
the Company to, and be assumed in whole, on a full recourse
basis, by a wholly owned Subsidiary of the Company at any time;
provided, however, that such assumption shall be subject to, and
-------- -------
permitted only upon the fulfillment and satisfaction of, the
following terms and conditions: (a) an assumption agreement and
a supplemental indenture to the Indenture evidencing such
assumption shall be in substance and form reasonably satisfactory
to the Trustee and shall, inter alia, include modifications and
----- ----
amendments to the Indenture making the obligations under the
Securities of this series and under the Indenture to the extent
related to such series primary obligations of such Subsidiary,
substituting such Subsidiary of the Company for the Company in
the form of the Securities of this series and in provisions of
the Indenture to the extent related to such series and releasing
and discharging the Company from its obligations under the
Securities of this series and the Indenture to the extent related
to such series; and (b) the Trustee shall have received (i) an
executed counterpart of such assumption agreement and
supplemental indenture; (ii) evidence satisfactory to the Trustee
and the Company that all necessary authorizations, consents,
orders, approvals, waivers, filings and declarations of or with,
Federal, state, county, municipal, regional or other governmental
authorities, agencies or boards (collectively, "Governmental
Actions") relating to such assumption have been duly obtained and
are in full force and effect, (iii) evidence satisfactory to the
Trustee that any security interest intended to be created by the
Indenture is not in any material way adversely affected or
impaired by any of the agreements or transactions relating to
such assumption and (iv) an Opinion of Counsel for such
Subsidiary, reasonably satisfactory in substance, scope and form
to the Trustee and the Company, to the effect that (A) the
supplemental indenture evidencing such assumption has been duly
authorized, executed and delivered by such Subsidiary, (B) the
execution and delivery by such Subsidiary of such supplemental
indenture and the consummation of the transactions contemplated
thereby do not contravene any provision of law or any
governmental rule applicable to such Subsidiary or any provision
of such Subsidiary's charter documents or by-laws and do not
contravene any provision of, or constitute a default under, or
result in the creation or imposition of any lien upon any of such
Subsidiary's properties or assets under any indenture, mortgage,
contract or other agreement to which such Subsidiary is a party
or by which such Subsidiary or any of its properties may be bound
or affected, (C) all necessary Governmental Actions relating to
such assumption have been duly obtained and are in full force and
effect and (D) such agreement and supplemental indenture
constitute the legal, valid and binding obligations of such
Subsidiary, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws at the time in effect affecting the rights of
creditors generally.
At the time of such assumption the Company will
unconditionally guarantee payment of the Securities of this
series and will execute a guarantee in form and substance
satisfactory to the Trustee. Pursuant to the guarantee, the
Company will fully and unconditionally guarantee the payment of
the obligations of such assuming Subsidiary under the Securities
of this series and under the Indenture, including, without
limitation, payment, as and when due, of the principal of,
premium, if any, and interest on, the Securities of this series.
Other than the obligation to make such payments, the Company
shall be released and discharged from all other obligations under
the Indenture.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit 4(i)
GUARANTEE AGREEMENT
Between
Texas Utilities Company
(as Guarantor)
and
The Bank of New York
(as Trustee)
dated as of
------------
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
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 Trust
Securities . . . . . . . . . . . . . . . . 4
SECTION 2.03 Reports by the Guarantee Trustee . . . . . 4
SECTION 2.04 Periodic Reports to Guarantee Trustee . . 5
SECTION 2.05 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . 5
SECTION 2.06 Events of Default; Waiver . . . . . . . . 5
SECTION 2.07 Event of Default; Notice . . . . . . . . . 5
SECTION 2.08 Conflicting Interests . . . . . . . . . . 5
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE . 6
SECTION 3.01 Powers and Duties of the Guarantee
Trustee . . . . . . . . . . . . . . . . . . 6
SECTION 3.02 Certain Rights of Guarantee Trustee . . . 8
SECTION 3.03 Not Responsible for Recitals or Issuance
of Guarantee . . . . . . . . . . . . . . . 10
ARTICLE IV GUARANTEE TRUSTEE . . . . . . . . . . . . . . . 10
SECTION 4.01 Guarantee Trustee; Eligibility . . . . . . 10
SECTION 4.02 Compensation and Reimbursement . . . . . . 10
SECTION 4.03 Appointment, Removal and Resignation of
Guarantee Trustee . . . . . . . . . . . . . 11
ARTICLE V GUARANTEE . . . . . . . . . . . . . . . . . . . 12
SECTION 5.01 Guarantee . . . . . . . . . . . . . . . . 12
SECTION 5.02 Waiver of Notice and Demand . . . . . . . 12
SECTION 5.03 Obligations Not Affected . . . . . . . . . 12
SECTION 5.04 Rights of Holders . . . . . . . . . . . . 13
SECTION 5.05 Guarantee of Payment . . . . . . . . . . . 14
SECTION 5.06 Subrogation . . . . . . . . . . . . . . . 14
SECTION 5.07 Independent Obligations . . . . . . . . . 14
ARTICLE VI SUBORDINATION . . . . . . . . . . . . . . . . . 14
SECTION 6.01 Subordination . . . . . . . . . . . . . . 14
ARTICLE VII TERMINATION . . . . . . . . . . . . . . . . . . 15
SECTION 7.01 Termination . . . . . . . . . . . . . . . 15
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . 15
SECTION 8.01 Successors and Assigns . . . . . . . . . . 15
SECTION 8.02 Amendments . . . . . . . . . . . . . . . . 15
SECTION 8.03 Notices . . . . . . . . . . . . . . . . . 16
SECTION 8.04 Benefit . . . . . . . . . . . . . . . . . 17
SECTION 8.05 Interpretation . . . . . . . . . . . . . . 17
SECTION 8.06 Governing Law . . . . . . . . . . . . . . 17
<PAGE>
CROSS-REFERENCE TABLE*
---------------------
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
------------------- ----------
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)
-------------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation
of any of its terms or provisions.
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of , is executed and delivered by Texas Utilities
------------
Company, a Texas corporation (the "Guarantor"), and The Bank of
New York, as trustee (the "Guarantee Trustee"), for the benefit
of the Holders (as defined herein) from time to time of the
Preferred Trust Securities (as defined herein) of TXU Capital I,
a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of among
------------
the Trustees named therein, Texas Utilities Company, as
Depositor, and the several Holders (as defined therein), the
Issuer is issuing as of the date hereof $ aggregate
-------------
Liquidation Amount of its % Cumulative Preferred Trust
--
Securities (the "Preferred Trust Securities") representing
undivided beneficial interests in the assets of the Issuer and
having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Trust Securities are to be
issued for sale by the Issuer and the proceeds are to be invested
in $ principal amount of Debentures (as defined in the
-----------
Trust Agreement); and
WHEREAS, in order to enhance the value of the Preferred
Trust Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth herein, to pay
to the Holders 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
Debentures, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to
time.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this
Guarantee Agreement, 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 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.
"Event of Default" means a default by the Guarantor on
any of its payment obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Trust Securities, to the extent not paid or made by or on behalf
of the Issuer: (i) any accrued and unpaid Distributions that are
required to be paid on such Preferred Trust Securities but only
if and to the extent that the Property Trustee has available in
the Payment Account funds sufficient to make such payment, (ii)
the redemption price (the "Redemption Price"), and all accrued
and unpaid Distributions to the date of redemption, with respect
to the Preferred Trust Securities called for redemption by the
Issuer but only if and to the extent that the Property Trustee
has available in the Payment Account funds sufficient to make
such payment, (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange
for Preferred Trust Securities as provided in the Trust Agreement
or upon a redemption of all of the Preferred Trust Securities
upon maturity or redemption of the Debentures as provided in the
Trust Agreement), the lesser of (a) the aggregate of the
Liquidation Amount of all Preferred Trust Securities and all
accrued and unpaid Distributions on the Preferred Trust
Securities to the date of payment but only if and to the extent
that the Property Trustee has available in the Payment Account
funds sufficient to make such payment, and (b) the amount of
assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York 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.
"Holder" means a Person in whose name a Preferred Trust
Security or Preferred Trust Securities is registered in the
Securities Register; provided, however, that in determining
whether the holders of the requisite percentage of Preferred
Trust Securities have given any request, notice, consent or
waiver hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"Majority in Liquidation Amount of the Preferred Trust
Securities" means a vote by Holders, voting separately as a
class, of more than 50% of the aggregate Liquidation Amount of
all Preferred Trust Securities.
"Officer's Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President, any Vice President, the Treasurer, or any Assistant
Treasurer of the Guarantor, and delivered to the Guarantee
Trustee. Any Officer's Certificate or Opinion of Counsel
delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that the officer or counsel signing
the Officer's Certificate or the Opinion of Counsel has read
the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officer's Certificate or the Opinion of
Counsel;
(c) a statement that each such officer or counsel has
made such examination or investigation as, in such officer's
or counsel's opinion, is necessary to enable such officer or
counsel to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer or counsel, such condition or covenant has been
complied with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Guarantee Trustee or the
Guarantor or an Affiliate of the Guarantor, or an employee or any
thereof, who shall be acceptable to the Guarantee Trustee.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company,
unincorporated organization or government, or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any vice-president, any assistant vice-
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Corporate Trust Department of
the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Subordinated Indenture" means the Indenture (for
Unsecured Subordinated Debt Securities relating to Trust
Securities) dated as of , between the Guarantor (the
------------
"Debenture Issuer") and The Bank of New York, as trustee pursuant
to which the Debentures are issued, together with any indenture
supplemental thereto.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required or deemed
to be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED TRUST
SECURITIES.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not later
than 1 and 1 in each year, a list, in such form as
-------- ----
the 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 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 Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a) of the Trust Indenture Act,
subject to the provisions of Section 311(b) of the Trust
Indenture Act, and Section 312(b) of the Trust Indenture Act.
SECTION 2.03 REPORTS BY THE GUARANTEE TRUSTEE.
Not later than 1 in each year, commencing
--------
, 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(a) of the Trust Indenture Act. Any such report
shall be dated as of the next preceding September 15. The
Guarantee Trustee shall also comply with the requirements of
Sections 313(b), (c) and (d) of the Trust Indenture Act.
SECTION 2.04 PERIODIC REPORTS TO GUARANTEE
TRUSTEE. The Guarantor shall provide to the Guarantee Trustee
such documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314
of the Trust Indenture Act.
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH
CONDITIONS PRECEDENT. The Guarantor shall provide to the
Guarantee Trustee such evidence of compliance with any conditions
precedent provided for in this Guarantee Agreement 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 and
any opinion of counsel required to be given by counsel, in each
case pursuant to Section 314(c) of the Trust Indenture Act, shall
be given in the form of an Officer's Certificate, and an Opinion
of Counsel, respectively.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. The
Holders of a Majority in Liquidation Amount of Preferred Trust
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 Guarantee Agreement, 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 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 Guarantee Trustee, unless such default shall
have been cured or waived before the giving of such notice,
provided that the Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or
Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer of
the Guarantee Trustee charged with the administration of the
Trust Agreement shall have received written notice of such Event
of Default.
SECTION 2.08 CONFLICTING INTERESTS. The Trust
Agreement, the Subordinated Indenture, the Indenture (For
Unsecured Debt Securities Series A) dated as of October 1, 1997
of the Company to The Bank of New York, as trustee, the Indenture
(For Unsecured Debt Securities Series B) dated as of October 1,
1997 of the Company to The Bank of New York, as trustee, the
Indenture (For Unsecured Debt Securities Series C), dated as of
January 1, 1998 of the Company to The Bank of New York, as
trustee, the Purchase Contract Agreement dated as of July 1, 1998
of the Company to The Bank of New York, as agent, attorney-in-
fact and trustee, the Indenture (For Unsecured Debt Securities
Series D and Series E), dated as of July 1, 1998 of the Company
to The Bank of New York, as trustee, the Indenture (For
Unsecured Debt Securities Series F), dated as of October 1, 1998
of the Company to The Bank of New York, as trustee, and the
Indenture (For Unsecured Debt Securities Series G), dated as of
October 1, 1998 of the Company to The Bank of New York, as
trustee, 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
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01 POWERS AND DUTIES OF THE GUARANTEE
TRUSTEE.
(a) 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 or
any rights hereunder to any Person except a Holder exercising his
or her rights pursuant to Section 5.04 or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee.
The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor 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 Guarantee Trustee.
(b) The 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 Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against
the 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 Guarantee
Trustee, 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 its exercise thereof, as a
prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) 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:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
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
(B) 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;
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) 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 of a Majority in Liquidation Amount of the
Preferred Trust Securities 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; and
(iv) 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 the 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 Guarantee Agreement or adequate
indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly provided, every
provision of this Guarantee Agreement relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of Sections 3.01(b) and
3.01(c).
SECTION 3.02 CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) the 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 Guarantee Agreement shall be
sufficiently evidenced by an Officer's Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem
it desirable that a matter be proved or established
before taking, suffering or omitting to take any action
hereunder, the 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 Guarantee Trustee, shall be promptly
delivered by the Guarantor;
(iv) the 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 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 Guarantee Trustee shall have the right
at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction;
(v) 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, unless such Holder shall
have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable
person in the position of the 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 Guarantee Trustee; provided that, nothing
contained in this Section 3.02(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence and
continuance of an Event of Default, of its obligation
under the last sentence of Section 3.01(b) to exercise
the rights and powers vested in it by this Guarantee
Agreement;
(vi) 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;
(vii) 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 such agent or attorney appointed with due
care by it hereunder;
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (1) may request
instructions from the Holders of a Majority in
Liquidation Amount of the Preferred Trust 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 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
rerecording, refiling or re-registration thereof); and
(x) the 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 Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the 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 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 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 GUARANTEE.
The recitals contained in this Guarantee Agreement
shall be taken as the statements of the Guarantor, and the
Guarantee Trustee does not assume any responsibility for their
correctness. The Guarantee Trustee makes no representation as to
the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a 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 Guarantee Trustee shall cease
to be eligible to so act under Section 4.01(a), the
Guarantee Trustee shall immediately resign in the manner and
with the effect set out in Section 4.03(c).
(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.
SECTION 4.02 COMPENSATION AND REIMBURSEMENT.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable compensation as the Guarantor and the Guarantee
Trustee shall from time to time agree in writing for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with the provisions of
this Guarantee Agreement (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 Guarantee Trustee and any
predecessor 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 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 Guarantee Agreement, 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 Guarantee Trustee shall
have a lien prior to the Preferred Trust Securities upon all the
property and funds held or collected by the 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 Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
SECTION 4.03 APPOINTMENT, REMOVAL AND
RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject to Section 4.03(b), unless an Event of
Default shall have occurred and be continuing, the Guarantee
Trustee may be appointed or removed without cause at any time by
the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor 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 Guarantee Trustee
resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any,
as it may deem proper, appoint a Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each
resignation and each removal of the Guarantee Trustee and each
appointment of a successor Guarantee Trustee to all Holders in
the manner provided in Section 8.03 hereof. Each notice shall
include the name of the successor Guarantee Trustee and the
address of its Corporate Trust Office.
(f) No Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01 GUARANTEE. The Guarantor
irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which
the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.02 WAIVER OF NOTICE AND DEMAND. The
Guarantor hereby waives notice of acceptance of this 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, 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 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 Issuer of
any express or implied agreement, covenant, term or
condition relating to the Preferred Trust Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions,
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Preferred Trust Securities or
the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the
Preferred Trust Securities (other than an extension of time
for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures
permitted by the Subordinated Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Property Trustee or the Holders to
enforce, assert or exercise any right, privilege, power or
remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Preferred Trust Securities, or
any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Trust 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 Guarantee Trustee, the
Property 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 Guarantee Agreement will be
deposited with the Guarantee Trustee to be held for the benefit
of the Holders; (ii) if an Event of Default has occurred and is
continuing, 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 Preferred Trust
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; and (iv) if the
Guarantee Trustee fails to enforce this Guarantee Agreement, any
Holder may enforce this Guarantee Agreement, or institute a legal
proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee Agreement without
first instituting a legal proceeding against the Issuer, the
Guarantee Trustee, or any other Person.
SECTION 5.05 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).
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 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 of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall
be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
SECTION 5.07 INDEPENDENT OBLIGATIONS. The
Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the
Preferred Trust 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 5.03.
ARTICLE VI
SUBORDINATION
SECTION 6.01 SUBORDINATION. This Guarantee
Agreement 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
Debentures, except those made pari passu or subordinate by their
terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and
with any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred or preference stock of any Affiliate
of the Guarantor, and (iii) senior to all common stock of the
Guarantor. Nothing in this Section 6.01 shall apply to claims
of, or payments to, the Guarantee Trustee under or pursuant to
Section 4.02 hereof.
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION. Subject to Section
4.02 hereof, this Guarantee Agreement shall terminate and be of
no further force and effect upon: (i) full payment of the
Redemption Price of all Preferred Trust Securities, and all
accrued and unpaid Distributions to the date of redemption, (ii)
the distribution of Debentures to Holders in exchange for all of
the Preferred Trust Securities, or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer. 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 must
restore payment of any sums paid with respect to Preferred Trust
Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 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 Preferred Trust Securities then
outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article
Eleven of the Subordinated Indenture, the Guarantor shall not
assign its obligations hereunder.
SECTION 8.02 AMENDMENTS. This Guarantee
Agreement may be amended only by an instrument in writing entered
into by the Guarantor and the Guarantee Trustee. Except with
respect to any changes which do not materially adversely affect
the rights of Holders (in which case no consent of Holders will
be required), this Guarantee Agreement may only be amended with
the prior approval of the Holders of not less than 66 2/3% in
aggregate Liquidation Amount of all the outstanding Preferred
Trust Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of Holders shall apply to the
giving of such approval. Nothing herein contained shall be
deemed to require that the Guarantee Trustee enter into any
amendment of this Guarantee Agreement.
SECTION 8.03 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 Guarantee Trustee and the Holders of the
Preferred Trust Securities:
Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Facsimile No: 214-812-2488
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 Capital I
c/o Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Facsimile No: 214-812-2488
Attention: Administrative Trustees
(c) if given to the 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 Trust Securities:
The Bank of New York
101 Barclay Street
21 West
New York, New York 10286
Facsimile No: (212) 815-5915
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 8.04 BENEFIT. This Guarantee Agreement
is solely for the benefit of the Holders and, subject to Section
3.01(a), is not separately transferable from the Preferred Trust
Securities.
SECTION 8.05 INTERPRETATION. In this Guarantee
Agreement, unless the context otherwise requires:
(a) a term defined anywhere in this Guarantee
Agreement has the same meaning throughout;
(b) all references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement
as modified, supplemented or amended from time to time;
(c) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(d) 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;
(e) a reference to the singular includes the plural
and vice versa; and
(f) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
SECTION 8.06 GOVERNING LAW. THIS GUARANTEE
AGREEMENT 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.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
Texas Utilities Company
By:
--------------------------------
Name:
Title:
The Bank of New York,
as Guarantee Trustee
By:
--------------------------------
Name: Walter N. Gitlin
Title: Vice President
WORSHAM, FORSYTHE & WOOLDRIDGE, L.L.P.
Exhibit 5(a)
December 10, 1998
Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Reference is made to the Registration Statement
(Registration Statement) on Form S-3 to be filed by Texas
Utilities Company (Company) and TXU Capital I (Trust) on or about
the date hereof, with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, for the
registration of (i) securities (Securities) in an aggregate
amount of $400,000,000, including (a) debt securities (Debt
Securities) of the Company to be issued pursuant to the terms of
one or more indentures (each a Debt Securities Indenture); and
(b) preferred trust securities (Preferred Trust Securities) of
the Trust; (ii) the guarantee of the Company with respect to the
Preferred Trust Securities (the Guarantee); and (iii) the
Company's Junior Subordinated Debentures (Subordinated
Debentures) to be issued pursuant to the terms of an indenture
(Subordinated Indenture) and purchased by the Trust with the
proceeds of the sale of the Preferred Trust Securities. In
connection therewith, we have reviewed such documents and records
as we have deemed necessary to enable us to express an opinion on
the matters covered hereby.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly organized and
existing under the laws of the State of Texas.
2. All requisite action necessary to make any Debt
Securities valid, legal and binding obligations of the Company
will have been taken when:
a. A Debt Securities Indenture with respect to such
Debt Securities shall have been executed and delivered by a duly
authorized officer or representative of the Company and by the
trustee under such Debt Securities Indenture; and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of such Debt Securities Indenture, as may
be necessary to fix and determine the terms of such Debt
Securities, and such Debt Securities shall have been issued and
delivered in accordance with the terms and provisions of such
Debt Securities Indenture.
3. All requisite action necessary to make any Guarantee a
valid, legal and binding obligation of the Company will have been
taken when the Board of Directors of the Company, or an officer
duly authorized thereby, shall have taken such action as may be
necessary to fix and determine the terms of such Guarantee and
such Guarantee shall have been duly executed and delivered by the
parties thereto.
4. All requisite action necessary to make any Subordinated
Debentures valid, legal and binding obligations of the Company
will have been taken when:
a. A Subordinated Indenture shall have been executed
and delivered by a duly authorized officer or representative of
the Company and by the trustee under such Subordinated Indenture;
and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of such Subordinated Indenture, as may be
necessary to fix and determine the terms of such Subordinated
Debentures, and such Subordinated Debentures shall have been
issued and delivered in accordance with the terms and provisions
of such Subordinated Indenture.
We are members of the State Bar of Texas and do not
hold ourselves out as experts on the laws of New York. As to all
matters of New York law, we have with your consent relied upon an
opinion of even date herewith addressed to you by Thelen, Reid &
Priest, LLP of New York, New York.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement and to the use of our name
as counsel in the Registration Statement and as authority for
certain of the statements incorporated by reference therein.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE, L.L.P.
By: /s/ T. A. Mack
----------------------------
A Partner
THELEN REID & PRIEST LLP
40 West 57th Street
New York, NY 10019
Exhibit 5(b)
December 10, 1998
Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Reference is made to the Registration Statement
(Registration Statement) on Form S-3 to be filed by Texas
Utilities Company (Company) and TXU Capital I (Trust) on or about
the date hereof, with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, for the
registration of (i) securities (Securities) in an aggregate
offering amount of $400,000,000, including (a) debt securities
(Debt Securities) of the Company to be issued pursuant to the
terms of one or more indentures (each a Debt Securities
Indenture); and (b) preferred trust securities (Preferred Trust
Securities) of the Trust; (ii) the guarantee of the Company with
respect to the Preferred Trust Securities (the Guarantee); and
(iii) the Company's Junior Subordinated Debentures (Subordinated
Debentures) to be issued pursuant to the terms of an indenture
(Subordinated Indenture) and purchased by the Trust with the
proceeds of the sale of the Preferred Trust Securities. In
connection therewith, we have reviewed such documents and records
as we have deemed necessary to enable us to express an opinion on
the matters covered hereby.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly organized and
existing under the laws of the State of Texas.
2. All requisite action necessary to make any Debt
Securities valid, legal and binding obligations of the Company
will have been taken when:
a. A Debt Securities Indenture with respect to such
Debt Securities shall have been executed and delivered by a duly
authorized officer or representative of the Company and by the
trustee under such Debt Securities Indenture; and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of such Debt Securities Indenture, as may
be necessary to fix and determine the terms of such Debt
Securities, and such Debt Securities shall have been issued and
delivered in accordance with the terms and provisions of such
Debt Securities Indenture.
3. All requisite action necessary to make the Guarantee a
valid, legal and binding obligation of the Company will have been
taken when the Board of Directors of the Company, or an officer
duly authorized thereby, shall have taken such action as may be
necessary to fix and determine the terms of the Guarantee and the
Guarantee shall have been duly executed and delivered by the
parties thereto;
4. All requisite action necessary to make the Subordinated
Debentures valid, legal and binding obligations of the Company
will have been taken when:
a. The Subordinated Indenture shall have been
executed and delivered by a duly authorized officer or
representative of the Company and by the trustee under the
Subordinated Indenture; and
b. The Board of Directors of the Company, or an
officer duly authorized thereby, shall have taken such action,
pursuant to the terms of the Subordinated Indenture, as may be
necessary to fix and determine the terms of the Subordinated
Debentures, and the Subordinated Debentures shall have been
issued and delivered in accordance with the terms and provisions
of the Subordinated Indenture.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of Texas. As to all matters
of Texas law, we have with your consent relied upon an opinion of
even date herewith addressed to you by Worsham, Forsythe &
Wooldridge, L.L.P. of Dallas, Texas.
We hereby consent to the use of this opinion as an
exhibit to the Registration Statement and to the use of our name
as counsel in the Registration Statement.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
December 10, 1998
TXU Capital I
c/o Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Re: TXU Capital I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Texas Utilities
Company, a Texas corporation (the "Company"), and TXU Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
December 3, 1998 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on December 3, 1998;
(b) The Trust Agreement of the Trust, dated as of
December 3, 1998, among the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the undivided beneficial interests in the assets of the Trust (each,
a "Security" and collectively, the "Securities"), as proposed to be filed by the
Company and the Trust with the Securities and Exchange Commission on or about
December 10, 1998;
(d) A form of Amended and Restated Trust Agreement of
the Trust (including Exhibits A, B and D thereto) (the "Trust Agreement"), to be
entered into among the Company, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, filed as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
December 4, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are signatories to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Security is to be issued by the Trust (collectively, the "Security Holders")
of a certificate in the form attached as Exhibit D to the Trust Agreement
evidencing ownership of such Security in the name of such Person and the payment
for the Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Securities are issued and sold to the
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Business Trust
Act.
2. The Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Security Holders may
be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Experts
and Legality" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/DLD
EXHIBIT 12
TEXAS UTILITIES COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES,
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
DIVIDENDS
TWELVE
MONTHS YEAR ENDED DECEMBER 31,
ENDED -----------------------
SEPTEMBER
30, 1998 1997 1996
-------- ---------- -----------
THOUSAND OF DOLLARS, EXCEPT RATIOS
EARNINGS:
Net income (loss) $ 598,540 $ 660,454 $ 753,606
Add: Total federal
income taxes
(benefit) 393,357 376,898 375,232
Fixed charges (see
detail below) 1,215,659 854,822 851,482
Preferred dividends
of subsidiaries 19,099 27,983 53,358
--------- --------- ---------
Total earnings $2,226,655 $1,920,157 $2,033,678
========= ========= =========
FIXED CHARGES:
Interest expense $1,101,398 $ 762,937 $ 797,893
Rentals representative
of the interest
factor 41,828 22,184 20,588
Distributions on
preferred trust
securities of
subsidiaries* 72,433 69,701 33,001
--------- --------- ---------
Fixed charges
deducted from
earnings 1,215,659 854,822 851,482
Preferred dividends of
subsidiaries
(pretax)** 31,651 43,952 79,926
--------- --------- ---------
Total fixed
charges 1,247,310 898,774 931,408
--------- --------- ---------
Preferred dividends of
registrant 0 0 0
--------- --------- ---------
Fixed charges
and preferred
dividends $1,247,310 $ 898,774 $ 931,408
========= ========= =========
RATIO OF EARNINGS TO
FIXED CHARGES (a) 1.79 2.14 2.18
==== ==== ====
RATIO OF EARNINGS TO
COMBINED FIXED
CHARGES AND PREFERRED
DIVIDENDS (a) 1.79 2.14 2.18
==== ==== ====
YEAR ENDED DECEMBER 31,
------------------------------------
1995 1994 1993
----------- ---------- ----------
THOUSAND OF DOLLARS, EXCEPT RATIOS
EARNINGS:
Net income (loss) $(138,645) $ 542,799 $ 368,660
Add: Total federal
income taxes
(benefit) (60,035) 326,638 209,544
Fixed charges (see
detail below) 732,313 752,892 782,439
Preferred dividends
of subsidiaries 84,914 101,883 115,232
--------- --------- ---------
Total earnings $ 618,547 $1,724,212 $1,475,875
========= ========= =========
FIXED CHARGES:
Interest expense $ 706,183 $ 726,875 $ 752,802
Rentals representative
of the interest
factor 24,329 26,017 29,637
Distributions on
preferred trust
securities of
subsidiaries* 1,801 -- --
--------- --------- ---------
Fixed charges
deducted from
earnings 732,313 752,892 782,439
Preferred dividends of
subsidiaries
(pretax)** 121,683 163,193 180,729
--------- --------- ---------
Total fixed
charges 853,996 916,085 963,168
--------- --------- ---------
Preferred dividends of
registrant 0 0 0
--------- --------- ---------
Fixed charges
and preferred
dividends $ 853,996 $ 916,085 $ 963,168
========= ========= =========
RATIO OF EARNINGS TO
FIXED CHARGES (a) 0.72 1.88 1.53
==== ==== ====
RATIO OF EARNINGS TO
COMBINED FIXED
CHARGES AND PREFERRED
DIVIDENDS (a) 0.72 1.88 1.53
==== ==== ====
* Distributions on preferred trust securities are deductible for
tax purposes.
** Preferred dividend requirements of subsidiaries multiplied by
the ratio of pre-tax income to net income.
(a) For the year ended December 31, 1995, fixed charges and
combined fixed charges and preferred dividends exceeded
earnings by $235 million.
EXHIBIT 15
Texas Utilities Company:
We have made reviews, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim condensed
consolidated interim financial information of Texas Utilities Company and
subsidiaries (the "Company") for the periods ended March 31, 1998 and 1997, June
30, 1998 and 1997 and September 30, 1998 and 1997, as indicated in our reports
dated May 11, 1998, August 13, 1998 and November 12, 1998, respectively; because
we did not perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were included in the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998, are being incorporated by reference in
this Registration Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
December 9, 1998
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Texas Utilities Company on Form S-3 of our report dated February 24, 1998,
appearing in the Texas Utilities Company Annual Report on Form 10-K for the year
ended December 31, 1997 and to the reference to us under the heading "Experts
and Legality" in the Prospectus which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Dallas, Texas
December 9, 1998
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement (Form S-3) of Texas Utilities Company of our report
dated August 12, 1998, appearing in the Current Report (Form 8-K)
of Texas Utilities Company dated December 10, 1998, and to the
reference to us under the heading "Experts and Legality" in the
Prospectus which is part of this Registration Statement.
/s/ Ernst & Young
ERNST & YOUNG
London, England
December 10, 1998
Exhibit 25(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
TEXAS UTILITIES COMPANY
(Exact name of obligor as specified in its charter)
Texas 75-1837355
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
SENIOR DEBT SECURITIES*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with issuance(s)
of Senior Debt Securities.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W.,
Washington, D.C. 20429
New York Clearing House Association New York, N.Y. 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant
to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of
the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust powers.
(Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
- ------------------------
*Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a responsive answer
to Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 2nd day of December, 1998.
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
----------------------------
Remo J. Reale
Assistant Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1998, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin.......................................... $ 7,301,241
Interest-bearing balances........................................ 1,385,944
Securities:
Held-to-maturity securities...................................... 1,000,737
Available-for-sale securities.................................... 4,240,655
Federal funds sold and Securities
purchased under agreements to resell............................ 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income.............................................. 38,788,269
LESS: Allowance for loan and
lease losses........................................ 632,875
LESS: Allocated transfer risk
reserve............................................. 0
Loans and leases, net of unearned
income, allowance, and reserve................................. 38,155,394
Assets held in trading accounts..................................... 1,307,562
Premises and fixed assets (including
capitalized leases)............................................... 670,445
Other real estate owned............................................. 13,598
Investments in unconsolidated subsid-
iaries and associated companies................................... 215,024
Customers' liability to this bank on
acceptances outstanding........................................... 974,237
Intangible assets................................................... 1,102,625
Other assets........................................................ 1,944,777
-----------
Total assets........................................................ $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................... $26,930,258
Noninterest-bearing.................................. 11,579,390
Interest-bearing..................................... 15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs.................................. 16,117,854
Noninterest-bearing.................................. 187,464
Interest-bearing..................................... 15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase ............................... 2,170,238
Demand notes issued to the U.S.
Treasury.......................................................... 300,000
Trading liabilities................................................. 1,310,867
Other borrowed money:
With remaining maturity of one year or less....................... 2,549,479
With remaining maturity of more than
one year through three years .................................... 0
With remaining maturity of more than
three years.................................................... 46,654
Bank's liability on acceptances
executed and outstanding.......................................... 983,398
Subordinated notes and debentures................................... 1,314,000
Other liabilities................................................... 2,295,520
----------
Total liabilities................................................... 54,018,268
----------
EQUITY CAPITAL
- --------------
Common stock........................................................ 1,135,284
Surplus............................................................. 731,319
Undivided profits and capital
reserves.......................................................... 3,385,227
Net unrealized holding gains (losses)
on available-for-sale securities.................................. 51,233
Cumulative foreign currency
translation adjustments........................................... (37,639)
Total equity capital................................................ 5,265,424
-----------
Total liabilities and equity capital................................ $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
Exhibit 25(b)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
TXU CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
TXU CAPITAL I TRUST SECURITIES*
(Title of the indenture securities)
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital I Trust Securities.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W.,
Washington, D.C. 20429
New York Clearing House Association New York, N.Y. 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant
to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of
the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. - A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements
of its supervising or examining authority.
- -----------------------------
*Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a responsive answer
to Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 2nd day of December, 1998.
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
-----------------------------
Remo J. Reale
Assistant Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1998, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 7,301,241
Interest-bearing balances...................................... 1,385,944
Securities:
Held-to-maturity securities.................................... 1,000,737
Available-for-sale securities.................................. 4,240,655
Federal funds sold and Securities
purchased under agreements to resell......................... 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income....................................... 38,788,269
LESS: Allowance for loan and
lease losses................................. 632,875
LESS: Allocated transfer risk
reserve....................................... 0
Loans and leases, net of unearned
income, allowance, and reserve............................... 38,155,394
Assets held in trading accounts.................................. 1,307,562
Premises and fixed assets (including
capitalized leases)............................................ 670,445
Other real estate owned.......................................... 13,598
Investments in unconsolidated subsid-
iaries and associated companies................................ 215,024
Customers' liability to this bank on
acceptances outstanding........................................ 974,237
Intangible assets................................................ 1,102,625
Other assets..................................................... 1,944,777
-----------
Total assets..................................................... $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $26,930,258
Noninterest-bearing................................ 11,579,390
Interest-bearing................................... 15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 16,117,854
Noninterest-bearing................................ 187,464
Interest-bearing................................... 15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase ........................... 2,170,238
Demand notes issued to the U.S.
Treasury....................................................... 300,000
Trading liabilities.............................................. 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................... 2,549,479
With remaining maturity of more than
one year through three years ................................ 0
With remaining maturity of more than
three years................................................ 46,654
Bank's liability on acceptances
executed and outstanding....................................... 983,398
Subordinated notes and debentures................................ 1,314,000
Other liabilities................................................ 2,295,520
-----------
Total liabilities................................................ 54,018,268
-----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,284
Surplus.......................................................... 731,319
Undivided profits and capital
reserves....................................................... 3,385,227
Net unrealized holding gains (losses)
on available-for-sale securities............................... 51,233
Cumulative foreign currency
translation adjustments........................................ (37,639)
-----------
Total equity capital............................................. 5,265,424
-----------
Total liabilities and equity capital............................. $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
<PAGE>
Exhibit 25(c)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
-----------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
TEXAS UTILITIES COMPANY
(Exact name of obligor as specified in its charter)
Texas 75-1837355
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
TEXAS UTILITIES COMPANY JUNIOR SUBORDINATED DEBENTURES*
(Title of the indenture securities)
- ----------------------------------
*Specific title(s) to be determined in connection with issuance(s) of
Junior Subordinated Debentures.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W.,
Washington, D.C. 20429
New York Clearing House Association New York, N.Y. 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant
to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of
the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. - A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
- -----------------------------
*Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a responsive answer
to Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 2nd day of December, 1998.
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
----------------------------
Remo J. Reale
Assistant Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1998, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin........................................ $ 7,301,241
Interest-bearing balances...................................... 1,385,944
Securities:
Held-to-maturity securities.................................... 1,000,737
Available-for-sale securities.................................. 4,240,655
Federal funds sold and Securities
purchased under agreements to resell......................... 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 38,788,269
LESS: Allowance for loan and
lease losses...................................... 632,875
LESS: Allocated transfer risk
reserve........................................... 0
Loans and leases, net of unearned
income, allowance, and reserve............................... 38,155,394
Assets held in trading accounts.................................. 1,307,562
Premises and fixed assets (including
capitalized leases)............................................ 670,445
Other real estate owned.......................................... 13,598
Investments in unconsolidated subsid-
iaries and associated companies................................ 215,024
Customers' liability to this bank on
acceptances outstanding........................................ 974,237
Intangible assets................................................ 1,102,625
Other assets..................................................... 1,944,777
-----------
Total assets..................................................... $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................ $26,930,258
Noninterest-bearing................................ 11,579,390
Interest-bearing................................... 15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................... 16,117,854
Noninterest-bearing............................... 187,464
Interest-bearing.................................. 15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase ............................ 2,170,238
Demand notes issued to the U.S.
Treasury....................................................... 300,000
Trading liabilities.............................................. 1,310,867
Other borrowed money:
With remaining maturity of one year or less.................... 2,549,479
With remaining maturity of more than
one year through three years ................................. 0
With remaining maturity of more than
three years................................................. 46,654
Bank's liability on acceptances
executed and outstanding....................................... 983,398
Subordinated notes and debentures................................ 1,314,000
Other liabilities................................................ 2,295,520
-----------
Total liabilities................................................ 54,018,268
-----------
EQUITY CAPITAL
- --------------
Common stock..................................................... 1,135,284
Surplus.......................................................... 731,319
Undivided profits and capital
reserves....................................................... 3,385,227
Net unrealized holding gains (losses)
on available-for-sale securities............................... 51,233
Cumulative foreign currency
translation adjustments......................................... (37,639)
-----------
Total equity capital............................................. 5,265,424
-----------
Total liabilities and equity capital............................. $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
Exhibit 25(d)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
-----------------
TEXAS UTILITIES COMPANY
(Exact name of obligor as specified in its charter)
Texas 75-1837355
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
-----------------
TEXAS UTILITIES COMPANY GUARANTEE WITH RESPECT
TO TXU CAPITAL I TRUST SECURITIES*
(Title of the indenture securities)
- -----------------------------
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital I Trust Securities.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation 550 17th Street, N.W.,
Washington, D.C. 20429
New York Clearing House Association New York, N.Y. 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant
to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of
the Commission's Rules of Practice.
1. - A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. - A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. - A copy of the latest report of condition of the
Trustee published pursuant to law or to the requirements
of its supervising or examining authority.
- -----------------------------
*Pursuant to General Instruction B, the Trustee has responded only to
Items 1, 2 and 16 of this form since to the best of the knowledge of the Trustee
the obligor is not in default under any indenture under which the Trustee is a
trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a responsive answer
to Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of the State of
New York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 2nd day of December, 1998.
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
-----------------------------
Remo J. Reale
Assistant Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1998, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
- ------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin......................................... $ 7,301,241
Interest-bearing balances....................................... 1,385,944
Securities:
Held-to-maturity securities..................................... 1,000,737
Available-for-sale securities................................... 4,240,655
Federal funds sold and Securities
purchased under agreements to resell.......................... 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income........................................... 38,788,269
LESS: Allowance for loan and
lease losses..................................... 632,875
LESS: Allocated transfer risk
reserve.......................................... 0
Loans and leases, net of unearned
income, allowance, and reserve................................ 38,155,394
Assets held in trading accounts................................... 1,307,562
Premises and fixed assets (including
capitalized leases)............................................. 670,445
Other real estate owned........................................... 13,598
Investments in unconsolidated subsid-
iaries and associated companies................................. 215,024
Customers' liability to this bank on
acceptances outstanding......................................... 974,237
Intangible assets................................................. 1,102,625
Other assets...................................................... 1,944,777
-----------
Total assets...................................................... $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................. $26,930,258
Noninterest-bearing................................ 11,579,390
Interest-bearing................................... 15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................ 16,117,854
Noninterest-bearing................................ 187,464
Interest-bearing................................... 15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase ............................ 2,170,238
Demand notes issued to the U.S.
Treasury........................................................ 300,000
Trading liabilities............................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less..................... 2,549,479
With remaining maturity of more than
one year through three years ................................. 0
With remaining maturity of more than
three years................................................. 46,654
Bank's liability on acceptances
executed and outstanding........................................ 983,398
Subordinated notes and debentures................................. 1,314,000
Other liabilities................................................. 2,295,520
-----------
Total liabilities................................................. 54,018,268
-----------
EQUITY CAPITAL
- --------------
Common stock...................................................... 1,135,284
Surplus........................................................... 731,319
Undivided profits and capital
reserves........................................................ 3,385,227
Net unrealized holding gains (losses)
on available-for-sale securities................................ 51,233
Cumulative foreign currency
translation adjustments......................................... (37,639)
-----------
Total equity capital.............................................. 5,265,424
-----------
Total liabilities and equity capital.............................. $59,283,692
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
