As filed with the Securities and Exchange Commission on May 24, 1999
Registration Nos. 333 , 333 -01, 333 -02 and 333 -03
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------
TEXAS UTILITIES COMPANY
(DOING BUSINESS AS TXU CORP)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
TEXAS 75-2669310
(STATE OF INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION) IDENTIFICATION NO.)
TXU CAPITAL II
TXU CAPITAL III
TXU CAPITAL IV
(EXACT NAME OF REGISTRANTS AS SPECIFIED IN THEIR CHARTERS)
DELAWARE TO BE APPLIED FOR
(STATE OF INCORPORATION (I.R.S. EMPLOYER
OR ORGANIZATION) IDENTIFICATION NO'S.)
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 TXU Corp 40 West 57th Street
Dallas, Texas 75201 1601 Bryan Street New York, New York
(214) 979-3000 Dallas, Texas 75201 10019
(214) 812-4600 (212) 603-2000
(NAMES AND ADDRESSES, INCLUDING ZIP CODES, AND TELEPHONE NUMBERS,
INCLUDING AREA CODES, OF AGENTS FOR SERVICE)
----------------------------------------
It is respectfully requested that the Commission also send copies of
all notices, orders and communications to:
RICHARD L. HARDEN, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
(212) 858-1000
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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]
<PAGE>
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. [ ]
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
=========================================================================
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO AMOUNT TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER UNIT PRICE FEE
-------------------------------------------------------------------------
Preference Stock... (1)(3) (2) (1)(2)(3)(4) N/A
-------------------------------------------------------------------------
Debt Securities.... (1)(5) (2) (1)(2)(4)(5) N/A
-------------------------------------------------------------------------
Preferred Trust
Securities....... (1)(6) (2) (1)(2)(4)(6) N/A
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TXU Corp
Guarantee with
respect to
Preferred Trust
Securities(7)(8). N/A
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TXU Corp
Junior
Subordinated
Debentures(9).... N/A
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Total(10)......$510,000,000(4) (2) $510,000,000(4) $141,780
=========================================================================
(1) In no event will the aggregate offering price of all
Preference Stock, Debt Securities and Preferred Trust
Securities issued from time to time pursuant to this
Registration Statement exceed $510,000,000. If any such
securities are issued at an original issue discount, then
the aggregate initial offering price as so discounted shall
not exceed $510,000,000, notwithstanding that the stated
principal amount of such securities may exceed such amount.
(2) The proposed maximum offering price per unit and the proposed
maximum aggregate offering price will be determined, from
time to time, by the registrants in connection with the
issuance of the Securities registered hereunder.
(3) Subject to footnote (1), there is being registered hereunder
an indeterminate number of shares of Preference Stock which
may be sold, from time to time, by TXU Corp.
(4) Exclusive of accrued interest or distributions, if any.
(5) Subject to footnote (1), there is being registered hereunder
an indeterminate principal amount of Debt Securities which
may be sold, from time to time, by TXU Corp.
(6) Subject to footnote (1), there is being registered hereunder
an indeterminate amount of Preferred Trust Securities which
may be sold, from time to time, by TXU Capital II, TXU
Capital III and/or TXU Capital IV.
(7) No separate consideration will be received for the TXU Corp
Guarantee or the Agreement as to Expenses and Liabilities.
(8) This registration is deemed to include the rights of the
holders of the 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.
(9) The Junior Subordinated Debentures will be purchased by TXU
Capital II, TXU Capital III and/or TXU Capital IV with the
proceeds of the sale of Preferred Trust Securities. No
separate consideration will be received for the Junior
Subordinated Debentures.
(10) Pursuant to Rule 429 under the Securities Act of 1933, the
combined prospectus filed as part of this Registration
Statement also relates to $170,000,000 aggregate amount of
debt securities registered pursuant to Registration Statement
File No. 333-56055 and to $170,000,000 of debt securities,
registered pursuant to Registration Statement File Nos.
333-68663 and 333-68663-01. Registration fees with respect
to those registration statements were paid in the amounts
of $265,500 and $111,200, respectively.
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 ______ __, 1999
PROSPECTUS
$850,000,000
AGGREGATE AMOUNT
-----------------
TEXAS UTILITIES COMPANY
(DOING BUSINESS AS TXU CORP)
PREFERENCE STOCK
AND
DEBT SECURITIES
------------------
TXU CAPITAL II
TXU CAPITAL III
TXU CAPITAL IV
PREFERRED TRUST SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED AS SET
FORTH HEREIN BY
TXU CORP
_____________________________________________________
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 , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or SEC, using
a "shelf" registration process. Under this shelf process, we
may, over the next two years, sell combinations of the securities
described in this prospectus in one or more offerings up to a total
dollar amount of $850,000,000. This amount includes $340,000,000
of Debt Securities registered under earlier registration
statements. 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 to the registration statement. Those exhibits
have been either filed with the registration statement or
incorporated by reference to earlier SEC filings listed in the
registration statement.
WHERE YOU CAN FIND MORE INFORMATION
Texas Utilities Company, a Texas corporation doing business
as TXU Corp, was formed in 1997 as a holding company. TXU Corp
owns all of the outstanding common stock of its predecessor
company, Texas Energy Industries, Inc. now doing business as TXU
Energy Industries Company. Texas Utilities Company files annual,
quarterly and special reports, proxy statements and other
information with the SEC under File No. 1-12833. Before TXU
Corp began filing quarterly and annual reports with the SEC,
TXU Energy Industries Company filed those reports under its old
name, Texas Utilities Company, File No. 1-3591. These SEC filings
are available to the public over the Internet at the SEC's website
at http://www.sec.gov. You may also read and copy any of these SEC
filings at the SEC's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference
rooms.
The SEC 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 SEC
will automatically update and supersede this information. We
incorporate by reference the documents listed below and any
future filings we make with the SEC 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 Company's Annual Report on Form 10-K for the
year ended December 31, 1998 (1998 10-K).
. Texas utilities Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999.
You may request a copy of these filings at no cost, by
writing or contacting Texas Utilities Company, now doing business
as TXU Corp, at the following address: Secretary, TXU Corp,
Energy Plaza, 1601 Bryan Street, Dallas, Texas 75201; telephone
number (214) 812-4600.
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<PAGE>
TXU CORP
TXU Corp 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, doing business as TXU
Electric Company, an operating electric 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, doing business as TXU Gas Company,
an integrated company focused on natural gas. Its
major business operations are gathering, processing,
transmission and distribution of natural gas and the
marketing of natural gas and electricity. It operates
primarily in the north central, eastern and western parts
of Texas and engages in the wholesale and retail
marketing of natural gas and electricity in several
areas of the United States.
Eastern Group plc, which includes Eastern Electricity
plc, the largest supplier (retailer) 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:
TU Australia Holding L.P. Its principal operating
subsidiaries include Eastern Energy Limited, which is
engaged in the purchase, distribution, marketing and
sale of electric energy in the State of Victoria,
Australia, and Westar and Kinetik Energy, gas
retail and distribution businesses.
Lufkin-Conroe Communications Co., doing business as TXU
Communications Company, an independent local exchange
carrier providing regulated telephone service
through access lines in southeast Texas. It also
provides access services to a number of interexchange
carriers who provide long distance services.
Other wholly owned subsidiaries which perform
specialized functions within the TXU Corp system.
TXU Corp's principal place of business is Energy Plaza, 1601
Bryan Street, Dallas, Texas 75201.
TXU CAPITAL II, TXU CAPITAL III, AND TXU CAPITAL IV
TXU Capital II, TXU Capital III and TXU Capital IV are
identical Delaware business trusts and each will be described in
this prospectus as TXU Capital. TXU Capital was created pursuant
to a Trust Agreement among TXU Corp, The Bank of New York as the
Property Trustee and The Bank of New York (Delaware) as the
Delaware Trustee and an employee of TXU Corp 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 TXU Corp as trust assets. All of the
Common Trust Securities will be owned by TXU Corp. 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 Common Trust Securities' right to payment will be
subordinated to the rights 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 Trustees. 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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business of TXU Capital is c/o TXU Corp, 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 TXU Corp, 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
TXU Corp for each of the years ended December 31, 1994 through
1998 and for the twelve months ended March 31, 1999 were, in each
case, 1.88, 0.72, 2.18, 2.14, 1.84 and , respectively. 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
TXU Corp's subsidiaries, including TXU 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. That write-down, on an after-tax
basis, amounted to $802 million.
DESCRIPTION OF TXU CORP PREFERENCE STOCK
TXU Corp is authorized to issue 50,000,000 shares of
Preference Stock, $25 par value, none of which is outstanding.
TXU Corp has adopted a share rights plan pursuant to which
shareholders were given rights to purchase TXU Corp's Series A
Preference Stock. These rights have certain anti-takeover
effects. Unless and until certain events occur, these rights are
not exercisable and trade with shares of the common stock.
Because TXU Corp is a holding company that conducts all of
its operations through subsidiaries, holders of Preference Stock
will generally have a position junior to claims of creditors and
preferred stockholders of the subsidiaries of TXU Corp as well
as to all holders of debt of TXU Corp. All these subsidiaries
have outstanding indebtedness, and ENSERCH Corporation and
Texas Utilities Electric Company have outstanding shares of
preferred stock.
The Texas Business Corporation Act of Texas and the Restated
Articles of Incorporation and Bylaws of TXU Corp determine the
rights and privileges of holders of Preference Stock. The
information below is a summary of those terms. For a fuller
understanding of those terms, you should read the corporate
documents, which have been filed with the SEC, and the Texas
corporate law.
TXU Corp may issue one or more series of Preference Stock
without the approval of its shareholders. The Preference Stock
of all series will rank equally as to dividends and distributions
upon liquidation or dissolution of TXU Corp.
Some terms of a series may differ from those of another
series. A Prospectus Supplement will describe those different
terms. They will also be described in a Statement of Resolution
Establishing a Series of Preference Stock. That document also
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will be filed in Texas and with the SEC, and you should read it
for a full understanding of any special terms of a series. These
terms will include any of the following that apply to that
series:
. The title of that series of Preference Stock;
. The number of shares in the series;
. The dividend rate or how such rate will be determined
and the dividend payment dates for the series of
Preference Stock;
. Whether the series will be listed on a national
exchange;
. The date or dates on which the series of Preference Stock
may be redeemed at the option of TXU Corp and any
restrictions on such redemptions;
. Any sinking fund or other provisions that would
obligate TXU Corp to repurchase, redeem or retire the
series of Preference Stock;
. The amount payable on the series of Preference Stock in
case of the liquidation, dissolution or winding up of
TXU Corp and any additional amount, or method of
determining such amount, payable in case any such
event is voluntary; and
. Any rights to convert the shares of that series of
Preference Stock into shares of another series or into
shares of any other class of capital stock.
Shares of Preference Stock issued by TXU Corp will be fully
paid and non-assessable.
TXU Corp must first pay all dividends due on Preference
Stock before it pays dividends to holders of its common stock.
Upon any dissolution or liquidation of TXU Corp, amounts due to
holders of Preference Stock will be paid before any distribution
of assets to holders of common stock.
TXU Corp has issued junior subordinated debentures in
connection with preferred trust securities previously issued by a
subsidiary, TXU Capital I. TXU Corp has a right, from time to
time, to delay interest payments for those junior subordinated
debentures for up to 20 consecutive quarters. TXU Corp may issue,
from time to time, additional junior subordinated debentures in
connection with the Preferred Trust Securities described in
this Prospectus. TXU Corp may have a similar right to delay
interest payments for those additional junior subordinated
debentures. If TXU Corp exercises any right to delay an
interest payment, it would not be able to pay dividends on its
common stock or Preference Stock during the extension period.
For a further description of TXU Corp's rights to delay payment,
read DESCRIPTION OF TXU CAPITAL'S PREFERRED TRUST SECURITIES AND
COMMON TRUST SECURITIES and DESCRIPTION OF THE JUNIOR SUBORDINATED
DEBENTURES in this prospectus.
The holders of Preference Stock have voting rights only in
the following circumstances:
. If dividends have not been paid for four full quarters,
holders of Preference Stock may elect one-third of TXU
Corp's Board of Directors or two directors, whichever
is greater;
. If dividends have not been paid for eight full
quarters, holders of Preference Stock may elect a
majority of TXU Corp's full Board of Directors;
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. TXU Corp needs the approval of the holders of two-
thirds of the outstanding shares of the Preference
Stock in order to make the following changes in its
capital structure:
- Authorizing a new class of stock that ranks senior
to the Preference Stock as to dividends or
liquidation rights or any security that could be
converted into or exercised to acquire any new
senior class of stock, and
- Materially altering the Restated Articles of
Incorporation in such a way as to change the
terms of the Preference Stock, unless the
change does not affect every series of Preference
Stock, in which case only holders of only those
series affected may vote.
TXU Corp will notify holders of Preference Stock of any meeting
at which they may vote. Shares of Preference Stock will have no
preemptive rights.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be TXU Corp's 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 TXU Corp and The Bank of New York as
Trustee under each indenture.
Selected provisions of each indenture are summarized below.
This summary is not complete. The form of the indenture was
filed with the SEC 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 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, those provisions or defined terms
are incorporated by reference herein.
The Debt Securities will rank equally with all of TXU Corp's
other senior and unsubordinated debt.
Because TXU Corp 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 TXU Corp. All
these subsidiaries have outstanding indebtedness, and 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;
. 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 the 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 delay the interest payments for the
Debt Securities;
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. 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 TXU Corp and any restrictions on
those redemptions;
. Any sinking fund or other provisions that would obligate TXU
Corp 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 TXU
Corp 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 TXU Corp 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 TXU Corp may issue.
TXU Corp may sell Debt Securities 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, important United States federal income tax or other tax
considerations applicable to any Debt Securities 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 TXU Corp.
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 that 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
on a date between 10 and 15 days prior to the date proposed by
TXU Corp for payment of such defaulted interest or in any other
manner permitted by any securities exchange on which that 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 TXU Corp. TXU Corp
may change the place of payment on the Debt Securities, may
appoint one or more additional Paying Agents (including TXU Corp)
and may remove any Paying Agent, all at the discretion of TXU
Corp.
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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. TXU Corp may change the
place for registration of transfer and exchange of the Debt
Securities and may designate additional places for 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, TXU Corp may require
payment to cover any tax or other governmental charge that may be
imposed. TXU Corp will not be required to execute or to provide
for the registration of transfer of, or the exchange of, (a) any
Debt Security during the 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
TXU Corp 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 that series of Debt
Securities.
LIMITATION ON LIENS
The indenture provides that, except as otherwise specified
with respect to a particular series of Debt Securities, TXU Corp
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 TXU Corp, 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 TXU Corp 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 TXU Corp, whether or not the secured
obligations are assumed by TXU Corp; or
(3) any judgment, levy, execution, attachment or other
similar lien arising in connection with court
proceedings, provided that either:
(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 that 30 day
period, and the claims secured by the lien 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 lien is adequately bonded, any
appropriate and duly initiated legal proceedings
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.
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For purposes of the restriction described in the preceding
paragraph, "Indebtedness" means:
(1) all indebtedness created or assumed by TXU Corp for the
repayment of money borrowed;
(2) all indebtedness for money borrowed secured by a lien
upon property owned by TXU Corp and upon which
indebtedness for money borrowed TXU Corp customarily
pays interest, although TXU Corp has not assumed or
become liable for the payment of the indebtedness for
money borrowed; and
(3) all indebtedness of others for money borrowed which is
guaranteed as to payment of principal by TXU Corp or in
effect guaranteed by TXU Corp through a contingent
agreement to purchase the indebtedness for money
borrowed, but excluding from this definition any other
contingent obligation of TXU Corp 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
TXU Corp 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 that 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, TXU Corp 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 TXU Corp 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 TXU Corp 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 TXU Corp and its Consolidated
Subsidiaries less all liabilities of TXU Corp 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:
(1) indebtedness secured by property of TXU Corp or any of
its Consolidated Subsidiaries whether or not TXU Corp
or the Consolidated Subsidiary is liable for the
payment of the indebtedness unless, in the case that
TXU Corp or the Consolidated Subsidiary is not so
liable, the property has not been included among the
Assets of TXU Corp or the Consolidated Subsidiary on
the balance sheet;
(2) deferred liabilities; and
(3) indebtedness of TXU Corp or any of its Consolidated
Subsidiaries that is expressly subordinated in right
and priority of payment to other liabilities of TXU
Corp or such Consolidated Subsidiary.
As used in this definition, "liabilities" includes
preference or preferred stock of TXU Corp or any Consolidated
Subsidiary only to the extent of any preference or preferred
stock that is subject to mandatory redemption or sinking fund
provisions.
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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 TXU Corp in its consolidated financial statements
as of that 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 TXU Corp and its Consolidated
Subsidiaries.
As of December 31, 1998, the Consolidated Capitalization of
TXU Corp was approximately $24.8 billion.
For situations in which the limitation on liens will not apply,
see "Assignment of Obligations" below.
ASSIGNMENT OF OBLIGATIONS
TXU Corp 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 TXU Corp's payment obligations
under the Debt Securities and under the indenture. TXU Corp 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, unless the terms of the
assigned Debt Securities state otherwise, TXU Corp will be
released and discharged from all its other obligations under the
Debt Securities and the indenture. In that case, any covenants
made by TXU Corp with respect to the Debt Securities would become
solely covenants of, and would relate only to, the subsidiary.
Unless the terms of the assigned Debt Securities state otherwise,
there would be no limitation on liens on the capital stock of TXU
Corp's subsidiaries.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Under the terms of the indenture, TXU Corp 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 TXU Corp's
obligations on all Debt Securities and under the
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
. TXU Corp 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 TXU Corp in a
merger in which TXU Corp is the surviving entity.
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;
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. 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 TXU Corp receives written notice from the
Trustee, or TXU Corp and the Trustee receive a written
notice from the holders of 33% in aggregate principal
amount of the Debt Securities of that series;
. Events in bankruptcy, insolvency or reorganization of
TXU Corp specified in the indenture; 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 the withholding of notice
to be in the interests of the holders.
REMEDIES
If an Event of Default for any series of Debt Securities
occurs and continues, the Trustee or the holders of at least 33%
in aggregate principal amount of all the Debt Securities of the
series may declare the entire principal amount of all the Debt
Securities of that 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 that 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 the declaration of
acceleration will be considered waived, and the declaration and
its consequences will be considered rescinded and annulled, if:
. TXU Corp 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; and
. Any other Event of Default with respect to the Debt
Securities of that series has been cured or waived as
provided in the indenture.
There is no automatic acceleration, even in the event of
bankruptcy, insolvency or reorganization of TXU Corp.
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
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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, these 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 the Debt Security on or after the applicable due date.
TXU Corp will provide to the Trustee an annual statement by
an appropriate officer as to TXU Corp's compliance with all
conditions and covenants under the indenture.
MODIFICATION AND WAIVER
Without the consent of any holder of Debt Securities issued
under an indenture, TXU Corp 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 TXU Corp in the indenture and in
the Debt Securities;
. To add additional covenants of TXU Corp or to surrender
any right or power of TXU Corp 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, the
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;
. 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;
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. 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 TXU Corp 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 the action
does 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 TXU Corp with some 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 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
that amendment to the Trust Indenture Act. TXU Corp and the
Trustee may, without the consent of any holders, enter into one
or more supplemental indentures to evidence the 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 the 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
. Modify some of the provisions of the indenture
relating to supplemental indentures, waivers of some
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 TXU
Corp 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.
TXU Corp 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 TXU Corp shall have no obligation to do
so. If TXU Corp fixes a record date, that request, demand,
authorization, direction, notice, consent, waiver or other act of
the holders may be given before or after that record date, but
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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 the 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 will
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 TXU Corp in
reliance thereon, whether or not notation of that action is
made upon the Debt Security.
RESIGNATION OF A TRUSTEE
A Trustee may resign at any time by giving written notice to
TXU Corp 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 TXU Corp. No
resignation or removal of a 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 TXU Corp has delivered to the Trustee a resolution of
its Board of Directors appointing a successor trustee and such
successor has accepted the 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 the 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
TXU Corp, the Trustee, and any agent of TXU Corp or the
Trustee, may treat the person in whose name Debt Securities are
registered as the absolute owner thereof, whether or not the Debt
Securities may be overdue, for the purpose of making payments and
for all other purposes irrespective of notice to the contrary.
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 TXU Corp 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 with the SEC and you should read
the Trust Agreement for provisions that may be
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important to you. The Trust Agreement will be qualified as an
indenture under the Trust Indenture Act. You should also refer
to the Trust Indenture Act 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. If there is a continuing Event of Default under
the Subordinated Indenture, 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 TXU Corp.
TXU Corp will fully and unconditionally guarantee payments
due on the Preferred Trust Securities through a combination of
the following:
. TXU Corp's obligations under the Junior Subordinated
Debentures;
. The rights of holders of Preferred Trust Securities to
enforce those obligations;
. TXU Corp's agreement to pay the expenses of TXU
Capital; or
. TXU Corp's 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 TXU Corp. 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.
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 TXU Corp 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 TXU Corp.
So long as there is no default in the payment of interest on
the Junior Subordinated Debentures, TXU Corp 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 TXU Corp extends the interest period or
is in default under the Guarantee or with respect to payments on
the Junior Subordinated Debentures, TXU Corp may not:
. Declare or pay any dividend or distribution on its
capital stock, other than dividends paid in shares of
Common Stock of TXU Corp;
. Redeem, purchase, acquire or make a liquidation payment
with respect to any of its capital stock;
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. 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. Those extensions will also
apply to distributions on Preferred Trust Securities and Common
Trust Securities and all other securities with terms
substantially the same as Preferred Trust Securities and Common
Trust Securities. Before an extension period ends, TXU Corp 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, TXU
Corp 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 TRUST
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
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 TXU
Corp 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, TXU Corp 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.
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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 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 TXU Corp;
. 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 TXU Corp.
If an early dissolution occurs because of bankruptcy,
dissolution or liquidation of TXU Corp, if all the Preferred
Trust Securities are redeemed, or if TXU Corp so elects, 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. TXU Corp, as holder
of the Common Trust Securities, will be entitled to
receive distributions upon any 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 will 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:
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. The occurrence of an Event of Default as described in
the Subordinated Indenture;
. Default by TXU Capital in the payment of any
distribution when it becomes due and payable, and
continuation of that default for a period of 30 days;
. 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;
. 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 that 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 Preferred Trust 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 TXU Corp notice of any such default actually known to the
Property Trustee, unless that default will 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 under the Subordinated Indenture
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 total liquidation preference amount of the
outstanding 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.
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.
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While Junior Subordinated Debentures are held by the
Property Trustee, the Property Trustee will 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 will be due and payable; or
. Consent to any amendment, modification or termination
of the Subordinated Indenture or the Junior
Subordinated Debentures, where that consent will 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 TXU
Corp 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 those 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 that 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.
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.
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 TXU Corp, any Trustee under the Trust Agreement or any
affiliate of TXU Corp, 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 TXU Corp as the
holder of the Common Trust Securities.
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AMENDMENTS
The Trust Agreement may be amended from time to time by TXU
Capital and TXU Corp, 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 change the name of the Trust; or
. To modify, eliminate or add to any provisions of the
Trust Agreement to the extent 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.
No amendment described above may materially adversely affect the
interests of any holder of Preferred Trust Securities and Common
Trust Securities. Any of these 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 TXU Corp 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 the 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 the
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.
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 that date.
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 or of any jurisdiction in
which any part of the trust property of TXU Capital may at the
time be located, TXU Corp, 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, TXU Corp, as depositor, will for that purpose
join with the Property Trustee in the execution, delivery and
performance of all instruments necessary or proper to make that
appointment. The appointment will vest in that person or persons
in that capacity, any property, title, right or power deemed
necessary or desirable, subject to the provisions of the Trust
Agreement. If TXU Corp, as depositor, does not join in that
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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 that 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 TXU Corp for such purpose. TXU Corp 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 TXU Corp 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.
TXU Corp 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
TXU Corp 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
the 15 calendar days before the mailing of a notice of redemption
of any Preferred Trust Securities called for redemption and
ending at the close of business on the day the notice is mailed
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., doing business as TXU Business
Services Company, 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 TXU Corp may require.
CONCERNING THE PROPERTY TRUSTEE
The Property Trustee acts as trustee under other indentures
with respect to TXU Corp's obligations. TXU Corp maintains
deposit accounts and credit and liquidity facilities and conducts
other banking transactions with the Property Trustee 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.
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
Investment Company 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 TXU
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Corp 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
those 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 TXU Corp 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 with the SEC 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. You should refer to the
Trust Indenture Act for provisions that apply to the Guarantee.
Whenever particular defined terms of the Guarantee are referred
to, those 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
TXU Corp 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 TXU Corp 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
. 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.
TXU Corp's obligation to make a guarantee payment may be
satisfied by direct payment of the required amounts by TXU Corp
to the holders of Preferred Trust Securities or by causing TXU
Capital to pay those amounts to those holders.
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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 those payments or to any collection of
payment.
If TXU Corp 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 TXU Corp except
liabilities that are equal in right of payment by their terms.
TXU Corp 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
TXU Corp 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
TXU Corp. No single document standing alone or operating in
conjunction with fewer than all of the other documents
constitutes that guarantee. It is only the combined operation of
these documents that has the effect of providing a full and
unconditional guaranteeby TXU Corp 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 will bind the successors, assigns, receivers, trustees
and representatives of TXU Corp and will 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 TXU
Corp 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.
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 TXU
Corp 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.
TXU Corp will be required to provide an annual statement to
the Guarantee Trustee about TXU Corp's performance of some of its
obligations under the Guarantee and any default in its
performance of the obligations.
TXU Corp will also be required to file annually with the
Guarantee Trustee an officer's certificate as to TXU Corp's
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
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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 TXU Corp
and will rank:
. Subordinate and junior in right of payment to all
liabilities of TXU Corp, 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 TXU
Corp and with any guarantee that may be entered into by
TXU Corp in respect of any preferred or preference
stock of any affiliate of TXU Corp; and
. Senior to TXU Corp's 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.
The Guarantee will be a guarantee of payment and not of
collection, that is, the guaranteed party may institute a legal
proceeding directly against TXU Corp to enforce its rights under
the Guarantee without first instituting a legal proceeding
against anyone else.
Because TXU Corp is a holding company that conducts all of
its operations through subsidiaries, obligations under the
Guarantee, as obligations of a holding company, will generally
have a position junior to claims of creditors and preferred
stockholders of the subsidiaries of TXU Corp.
GOVERNING LAW
The Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
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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 TXU Corp. The Junior Subordinated
Debentures will be issued under the Subordinated Indenture, dated
December 1, 1998, between TXU Corp 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 with the SEC, 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. You should refer to the Trust
Indenture Act for provisions that apply to the Junior
Subordinated Debentures. Whenever particular provisions or
defined terms in a Subordinated Indenture are referred to under
the DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES, those
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 being offered will
include specific terms relating to that offering. 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 the 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 TXU Corp and any
restrictions on those redemptions;
. Any sinking fund or other provisions that would obligate TXU
Corp to repurchase or otherwise redeem the Junior
Subordinated Debentures;
. Any changes or additions to the Events of Default under the
Subordinated Indenture or changes or additions to the
covenants of TXU Corp 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;
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. Any rights or duties of another person to assume the
obligations of TXU Corp with respect to the 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 TXU Corp for the Common Trust
Securities. The Junior Subordinated Debentures are unsecured,
subordinated obligations of TXU Corp which rank junior to all of
TXU Corp's 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,
the Junior Subordinated Debentures will be issued in fully
registered certificated form in the denominations and integral
multiples thereof in which the 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, TXU Corp 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 that redemption. All
notices of redemption will 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 Junior Subordinated
Debenture to be redeemed and that interest thereon will cease to
accrue on and after that date. It will name the place or places
where the Junior Subordinated Debentures are to be surrendered
for payment of the redemption price plus accrued and unpaid
interest.
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 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 will be made on the last business day
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of the earlier year. These payments will 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, TXU Corp 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 extension period. Interest would, however,
continue to accrue. If TXU Corp extends the interest period or
is in default under the Guarantee or with respect to payments on
the Junior Subordinated Debentures, TXU Corp may not:
. Declare or pay any dividend or distribution on its
capital stock, other than dividends paid in shares of
common stock of TXU Corp;
. 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. Those 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, TXU Corp 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, TXU Corp may select a
new extended interest payment period. No interest period may be
extended beyond the maturity of the Junior Subordinated
Debentures. TXU Corp 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 TXU Corp did not make the
election to extend or (ii) the date TXU Corp is required to give
notice to the NYSE or any other applicable self-regulatory
organization of the record date. TXU Corp will cause TXU Capital
to send notice of that 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 TXU
Corp 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 those
taxes, duties, assessments or governmental charges will be the
same as TXU Capital would have had in the absence of the payment
of those taxes, duties, assessments or governmental charges.
ASSIGNMENT OF OBLIGATIONS
TXU Corp 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 TXU
Corp's payment obligations under the Junior Subordinated
Debentures and under the Subordinated Indenture. TXU Corp must
fully and unconditionally guarantee payment of the obligations of
the assuming subsidiary under the Junior Subordinated Debentures
and the Subordinated Indenture.
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If such an assignment is made, TXU Corp will be released and
discharged from all its other obligations under the Junior
Subordinated Debentures and the Subordinated Indenture. Any
covenants made by TXU Corp with respect to the Junior
Subordinated Debentures would become solely covenants of, and
would relate only to, the subsidiary.
DEFEASANCE
TXU Corp 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 that series of the subordinated debentures.
SUBORDINATION
The Junior Subordinated Debentures will be subordinate and
junior in right of payment to all Senior Indebtedness of TXU
Corp. 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 TXU Corp;
. 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 TXU Corp 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 TXU Corp for borrowed money that is not subordinate or junior
in right of payment to any other indebtedness of TXU Corp unless
by its terms it is equal in right of payment to the Junior
Subordinated Debentures. The obligations of TXU Corp 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 December
31, 1998 TXU Corp had approximately $___ billion principal amount
of indebtedness for borrowed money constituting Senior
Indebtedness.
The Junior Subordinator Debentures, as debt of a holding
company, will generally have a position junior to claims of
creditors and preferred stockholders of the subsidiaries of TXU
Corp.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Under the terms of the Subordinated Indenture, TXU Corp 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:
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. The surviving or successor entity is organized and
validly existing under the laws of any domestic
jurisdiction and it expressly assumes TXU Corp's
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
. TXU Corp 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 TXU Corp receives
written notice from the Debenture Trustee or TXU Corp
and the Debenture Trustee receive a written notice from
33% of the holders of the subordinated debentures of
that series;
(4) certain events in bankruptcy, insolvency or
reorganization of TXU Corp; 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 that
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 that 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
obtained, the Event of Default giving rise to the declaration of
acceleration will be considered waived, and the declaration and
its consequences will be considered rescinded and annulled, if:
. TXU Corp has paid or deposited with the Debenture
Trustee a sum sufficient to pay:
(1) all overdue interest on all subordinated
debentures of the series;
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(2) the principal of and premium, if any, on any
subordinated debentures 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 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 TXU Corp.
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 give 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 will
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, these 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.
TXU Corp will provide to the Debenture Trustee an annual
statement by an appropriate officer as to TXU Corp's compliance
with all conditions and covenants under the Subordinated
Indenture.
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 TXU
Corp as a holder of the Junior Subordinated Debentures. However,
a holder of Preferred Trust Securities may enforce the
Subordinated Indenture directly against TXU Corp 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 TXU Corp 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
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aggregate liquidation amount of the outstanding Preferred Trust
Securities would have the right to directly institute proceedings
for enforcement of all other rights against TXU Corp to the
fullest extent permitted by law.
MODIFICATION AND WAIVER
Without the consent of any holder of subordinated
debentures, TXU Corp 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 TXU Corp in the Subordinated
Indenture and in the subordinated debentures;
. To add additional covenants of TXU Corp or to surrender
any right or power of TXU Corp 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, the change, elimination or addition
will become effective only:
(1) when the consent of the holders of subordinated
debentures of that 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;
. 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 TXU Corp 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
the action will 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 TXU Corp with some
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 some covenants and provisions of
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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 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 that amendment of the Trust
Indenture Act. TXU Corp and the Debenture Trustee may, without
the consent of any holders, enter into one or more supplemental
indentures to evidence the 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 that 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 some of the provisions of the Subordinated
Indenture relating to supplemental indentures, waivers
of some 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
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 TXU Corp 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.
TXU Corp 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 TXU Corp shall have no obligation to do so.
If TXU Corp fixes a record date, the request, demand, authorization,
direction, notice, consent, waiver or other act of the holders may
be given before or after that record date, but only the holders
of record at the close of business on the 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 the request,
demand, authorization, direction, notice, consent, waiver or other
act of the holders. 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 will bind every future
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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 TXU Corp in reliance
thereon, whether or not notation of that action is made upon the
subordinated debenture.
RESIGNATION OF DEBENTURE TRUSTEE
The Debenture Trustee may resign at any time by giving
written notice to TXU Corp 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 the
Debenture Trustee and TXU Corp. 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 TXU Corp has
delivered to the Debenture Trustee a resolution of its Board of
Directors appointing a successor trustee and the successor has
accepted that 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 the Subordinated
Indenture.
NOTICES
Notices to holders of subordinated debentures will be given
by mail to the addresses of the holders as they may appear in the
security register therefor.
TITLE
TXU Corp, the Debenture Trustee, and any agent of TXU Corp
or the Debenture Trustee, may treat the person in whose name
subordinated debentures are registered as the absolute owner
thereof, whether or not the 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.
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 TXU Corp and its affiliates.
PLAN OF DISTRIBUTION
The Debt Securities, the Preference Stock 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, the Preference Stock and Preferred Trust
Securities may be sold through agents designated by TXU Corp.
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BY UNDERWRITERS
If underwriters are used in the sale, the Debt Securities,
the Preference Stock and Preferred Trust Securities will be acquired
by the underwriters for their own account. The underwriters may
resell the Debt Securities, the Preference Stock 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, the Preference Stock and Preferred
Trust Securities directly or through underwriting syndicates
represented by managing underwriters. The obligations of the
underwriters to purchase the Debt Securities, the Preference
Stock and Preferred Trust Securities will be subject to
certain conditions. The underwriters will be obligated to
purchase all the offered Debt Securities, the Preference Stock
and Preferred Trust Securities if any are purchased. If a
dealer is used in the sale, TXU Corp or TXU Capital will
sell the Debt Securities, the Preference Stock and Preferred
Trust Securities, as the case may be, to the dealer as principal.
The dealer may then resell the Debt Securities, the Preference
Stock and Preferred Trust Securities at varying prices
determined at the time of resale.
DIRECT SALES
The Debt Securities, the Preference Stock and Preferred Trust
Securities may also be sold directly by TXU Corp. 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, the Preference Stock
and Preferred Trust Securities may be underwriters as defined
in the Securities Act and any discounts or commissions received
by them from TXU Corp or TXU Capital and any profit on the
resale of the Debt Securities, the Preference Stock and Preferred
Trust Securities by them may be treated as underwriting discounts
under the Securities Act. Any underwriters, dealers or agents
will be identified and their compensation described in a
prospectus supplement.
TXU Corp or TXU Capital may authorize agents and
underwriters to solicit offers by certain institutions to
purchase Debt Securities, the Preference Stock and Preferred
Trust Securities at the public offering price and on terms
described in the applicable prospectus supplement.
TXU Corp may have agreements with agents, underwriters and
dealers to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, or to contribute
with respect to payments which the agents, underwriters, dealers
and remarketing firms may be required to make.
None of the Debt Securities, the Preference Stock or
Preferred Trust Securities has an established trading
market. TXU Corp may decide to list any series of Securities
on an exchange. However, TXU Corp will not be obligated
to list securities on an exchange unless it states
otherwise in a prospectus supplement. TXU Corp cannot
assure that there will be any liquidity of the trading market for
any of the Debt Securities, the Preference Stock and Preferred
Trust Securities.
Agents, underwriters and dealers may engage in transactions
with, or perform services for, TXU Corp or its subsidiaries in
the ordinary course of business.
EXPERTS AND LEGALITY
The consolidated financial statements of TXU Corp and
subsidiaries, except TXU Eastern Holdings Limited, included in
the 1998 10-K incorporated herein by reference, have been audited
by Deloitte & Touche LLP, independent auditors, as stated in
their report included in the 1998 10-K. The consolidated
financial statements of TXU Eastern Holdings Limited have been
audited by PricewaterhouseCoopers, independent accountants, as
stated in their report included in the 1998 10-K. Those
financial statements are not included in the 1998 10-K. The
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consolidated financial statements of TXU Corp and subsidiaries
have been incorporated by reference herein in reliance upon the
respective reports of such firms given upon their authority as
experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim
financial information of TXU Corp and subsidiaries, except TXU
Eastern Holdings Limited, for the periods ended March 31, 1999
and 1998, which is incorporated herein by reference, Deloitte &
Touche LLP have applied limited procedures in accordance with
professional standards for a review of such information.
However, as stated in their report included in the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31,
1999 and incorporated by reference herein, they did not audit and
they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their
reports on that information should be restricted in light of the
limited nature of the review procedures applied. Deloitte &
Touche LLP are not subject to the liability provisions of Section
11 of the Securities Act for their reports on the unaudited
interim financial information because those reports are not
"reports" or a "part" of the registration statement prepared or
certified by an accountant within the meaning of Sections 7 and
11 of the Securities Act.
The statements made as to matters of law and legal
conclusions in the 1998 10-K under Part I, Item 1 -- Business
-- US Electric Segment -- Regulation and Rates and -- US Gas
Segment -- Regulation and Rates, and Environmental Matters,
-- US Segments, incorporated herein by reference, have been
reviewed by Worsham, Forsythe & Wooldridge, L.L.P., Dallas,
Texas, General Counsel for TXU Corp. All those statements
have been incorporated by reference herein in reliance upon
the opinion of that firm given upon their authority as
experts. At December 31, 1998, members of the firm of
Worsham, Forsythe & Wooldridge, L.L.P. owned approximately
41,000 shares of the Common Stock of TXU Corp.
Richards, Layton & Finger, P. A., Special Delaware counsel
for TXU Corp 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, counsel for TXU Corp, and Winthrop, Stimson,
Putnam & Roberts, New York, New York, counsel 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 TXU Corp 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 TXU
Corp in connection with the issuance and distribution of the
securities to be registered.
Filing fee-Securities and Exchange Commission...... $141,780
Fees of Trustees................................... 30,000
Fees of TXU Corp's counsel
Worsham, Forsythe & Wooldridge, L.L.P. ......... 200,000
Thelen Reid & Priest LLP........................ 200,000
Fees of TXU Corp's and TXU Capital's special
Delaware counsel................................ 10,000
Auditors' fees..................................... 50,000
Rating agencies' fees.............................. 150,000
Printing, including Registration Statement,
prospectuses, exhibits, etc. .................... 60,000
Miscellaneous...................................... 8,220
--------
Total expenses*.................................... $850,000
========
-----------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Restated Articles of Incorporation of TXU
Corp 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 or 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 an order or orders issued
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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 may 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
TXU Corp, in certain circumstances, to indemnify any present or
former director, officer, employee or agent of TXU Corp 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 TXU Corp.
Article X of the Articles of Incorporation of TXU Corp
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 the 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 the director to the Corporation or an act or
omission that involves intentional misconduct or a knowing
violation of the law;
(c) a transaction from which the 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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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 TXU Corp's 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."
TXU Corp has entered into agreements with its directors
which provide, among other things, for their indemnification by
TXU Corp 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.
TXU Corp 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 TXU Corp also have insurance which
insures them against certain other liabilities and expenses.
II-3
<PAGE>
ITEM 16. EXHIBITS.
PREVIOUSLY FILED*
-----------------
WITH
FILE AS
EXHIBIT NUMBER EXHIBIT
------- ------ -------
1(a) -- Form of Underwriting Agreement
for TXU Corp Securities.
1(b) -- Form of Underwriting Agreement
for Preferred Trust Securities.
4(a) -- Amended and Restated Articles of
Incorporation of TXU Corp
4(b) 333-45657 4(b) -- Bylaws of TXU Corp, as amended.
4(c) -- Form of Statement of Resolution
Establishing a Series of
Preference Stock
4(d) 333-68663 4(c) -- Form of Indenture (For Unsecured
333-68663-01 Debt Securities) of TXU Corp
4(e) 333-68663 4(d) -- Form of Officer's Certificate
333-68663-01 establishing a series of
unsecured debt securities,
including Form of Debt Security.
4(f) -- Trust Agreement and Certificate of
Trust of TXU Capital II.
4(g) -- Trust Agreement and Certificate of
Trust of TXU Capital III.
4(h) -- Trust Agreement and Certificate of
Trust of TXU Capital IV.
4(i) -- Form of Amended and Restated
Trust Agreement.
4(j) 1-12833 4(a) -- Indenture (For Unsecured
Form 8-K filed Subordinated Debt Securities
January 19, 1999 relating to Trust Securities) of
TXU Corp, dated December 1, 1998.
4(k) -- Form of Officer's Certificate
establishing the Junior
Subordinated Debentures,
including Form of Junior
Subordinated Debenture.
4(l) -- Form of Guarantee Agreement
relating to the Preferred Trust
Securities.
4(m) -- Form of Agreement as to Expenses
and Liabilities relating to the
Preferred Trust Securities is
contained in Exhibit D of Exhibit
4(i) hereto.
4(n) -- Form of Preferred Trust
Securities is contained in
Exhibit C of Exhibit 4(i) hereto.
5(a) -- Opinion of Worsham, Forsythe &
Wooldridge, L.L.P., General
Counsel for TXU Corp
5(b) -- Opinion of Thelen Reid & Priest
LLP, of counsel to TXU Corp
5(c) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital II and TXU
Corp
5(d) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital III and
TXU Corp
5(e) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital IV and TXU
Corp
12 1-12833 12(a) -- Computation of Ratio of Earnings
Form 10-K to Fixed Charges and Computation
(1998) of Ratio of Earnings to Combined
Fixed Charges and Preferred
Dividends of TXU Corp
15 -- Letter of Deloitte & Touche LLP
regarding unaudited condensed
interim financial information.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of
PricewaterhouseCoopers.
23(c) -- Consents of Worsham, Forsythe &
Wooldridge, L.L.P., Thelen
Reid & Priest LLP and Richards,
Layton and Finger, P.A. are
contained in Exhibits 5(a),
5(b) and 5(c)-5(e), respectively.
24 -- Power of Attorney (see page II-8
and Section 4 of Exhibits 4(f),
(g) and (h).
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 Indenture (For
Unsecured Subordinated Debt
Securities) of TXU Corp.
25(c) -- 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 II.
II-4
<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 of TXU
Capital II.
25(e) -- 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 III.
25(f) -- 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 of TXU
Capital III.
25(g) -- 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 IV.
25(h) -- 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 of TXU
Capital IV.
--------------------------------------
* Incorporated herein by reference.
II-5
<PAGE>
ITEM 17. UNDERTAKINGS.
a. The undersigned registrants hereby undertake:
(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
registrants have 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 liabilities (other than the payment by the
II-6
<PAGE>
registrants of expenses incurred or paid by a director, officer
or controlling person of any 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 registrants 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 24th OF MAY, 1999.
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
-------------------------------- EXECUTIVE MAY 24, 1999
(ERLE NYE, CHAIRMAN OF THE OFFICER AND
BOARD AND CHIEF EXECUTIVE) DIRECTOR
/S/ MICHAEL J. MCNALLY PRINCIPAL
-------------------------------- FINANCIAL MAY 24, 1999
(MICHAEL J. MCNALLY, OFFICER
EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER)
/S/ JERRY W. PINKERTON PRINCIPAL
-------------------------------- ACCOUNTING MAY 24, 1999
(JERRY W. PINKERTON, CONTROLLER) OFFICER
/S/ DEREK C. BONHAM DIRECTOR
-------------------------------- MAY 24, 1999
(DEREK C. BONHAM)
/S/ J.S. FARRINGTON DIRECTOR
-------------------------------- MAY 24, 1999
(J. S. FARRINGTON)
/S/ WILLIAM M. GRIFFIN DIRECTOR
-------------------------------- MAY 24, 1999
(WILLIAM M. GRIFFIN)
/S/ KERNEY LADAY DIRECTOR
-------------------------------- MAY 24, 1999
(KERNEY LADAY)
/S/ MARGARET N. MAXEY DIRECTOR
-------------------------------- MAY 24, 1999
(MARGARET N. MAXEY)
/S/ JAMES A. MIDDLETON DIRECTOR
-------------------------------- MAY 24, 1999
(JAMES A. MIDDLETON)
/S/ J. E. OESTERREICHER DIRECTOR
-------------------------------- MAY 24, 1999
(J. E. OESTERREICHER)
/S/ CHARLES R. PERRY DIRECTOR
-------------------------------- MAY 24, 1999
(CHARLES R. PERRY)
/S/ HERBERT H. RICHARDSON DIRECTOR
-------------------------------- MAY 24, 1999
(HERBERT H. RICHARDSON)
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
TXU Capital II 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 24th day of May,
1999.
TXU CAPITAL II
By: /s/ Robert J. Reger, Jr.
------------------------------
Robert J. Reger, Jr.
Attorney-in-fact
Pursuant to the requirements of the Securities Act of 1933,
TXU Capital III 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 24th day of May,
1999.
TXU CAPITAL III
By: /s/ Robert J. Reger, Jr.
------------------------------
Robert J. Reger, Jr.
Attorney-in-fact
Pursuant to the requirements of the Securities Act of 1933,
TXU Capital IV 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 24th day of May,
1999.
TXU CAPITAL IV
By: /s/ Robert J. Reger, Jr.
----------------------------
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 TXU Corp Securities.
1(b) -- Form of Underwriting Agreement
for Preferred Trust Securities.
4(a) -- Amended and Restated Articles of
Incorporation of TXU Corp
4(b) 333-45657 4(b) -- Bylaws of TXU Corp, as amended.
4(c) -- Form of Statement of Resolution
Establishing a Series of
Preference Stock
4(d) 333-68663 4(c) -- Form of Indenture (For Unsecured
333-68663-01 Debt Securities) of TXU Corp
4(e) 333-68663 4(d) -- Form of Officer's Certificate
333-68663-01 establishing a series of
unsecured debt securities,
including Form of Debt Security.
4(f) -- Trust Agreement and Certificate
of Trust of TXU Capital II.
4(g) -- Trust Agreement and Certificate
of Trust of TXU Capital III.
4(h) -- Trust Agreement and Certificate
of Trust of TXU Capital IV.
4(i) -- Form of Amended and Restated
Trust Agreement.
4(j) 1-12833 4(a) -- Indenture (For Unsecured
Form 8-K filed Subordinated Debt Securities
January 19, 1999 relating to Trust Securities) of
TXU Corp, dated December 1, 1998.
4(k) -- Form of Officer's Certificate
establishing the Junior
Subordinated Debentures,
including Form of Junior
Subordinated Debenture.
4(l) -- Form of Guarantee Agreement
relating to the Preferred Trust
Securities.
4(m) -- Form of Agreement as to Expenses
and Liabilities relating to the
Preferred Trust Securities is
contained in Exhibit D of Exhibit
4(i) hereto.
4(n) -- Form of Preferred Trust
Securities is contained in
Exhibit C of Exhibit 4(i) hereto.
5(a) -- Opinion of Worsham, Forsythe &
Wooldridge, L.L.P., General
Counsel for TXU Corp
5(b) -- Opinion of Thelen Reid & Priest
LLP, of counsel to TXU Corp
5(c) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital II and TXU
Corp
5(d) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital III and
TXU Corp
5(e) -- Opinion of Richards, Layton &
Finger, P.A., Special Delaware
Counsel to TXU Capital IV and TXU
Corp
12 1-12833 12(a) -- Computation of Ratio of Earnings
Form 10-K to Fixed Charges and Computation
(1998) of Ratio of Earnings to Combined
Fixed Charges and Preferred
Dividends of TXU Corp
15 -- Letter of Deloitte & Touche LLP
regarding unaudited condensed
interim financial information.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of
PricewaterhouseCoopers.
23(c) -- Consents of Worsham, Forsythe &
Wooldridge, L.L.P., Thelen
Reid & Priest LLP and Richards,
Layton and Finger, P.A. are
contained in Exhibits 5(a), 5(b)
and 5(c)-5(e), respectively.
24 -- Power of Attorney (see page II-8
and Section 4 of Exhibits 4(f),
(g) and (h).
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 Indenture (For
Unsecured Subordinated Debt
Securities) of TXU Corp.
25(c) -- 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 II.
II-10
<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 of TXU
Capital II.
25(e) -- 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 III.
25(f) -- 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 of TXU
Capital III.
25(g) -- 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 IV.
25(h) -- 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 of TXU
Capital IV.
--------------------------------------
* Incorporated herein by reference.
II-11
EXHIBIT 1(a)
TEXAS UTILITIES COMPANY, doing business as
TXU CORP
[Name of Security]
UNDERWRITING AGREEMENT
[Date]
as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
------------
corporation doing business as TXU Corp (the "Company"), proposes
to issue and sell severally to the underwriters named in Schedule
II hereto (the "Underwriters") the [Name of Security] of the
[<1>series,] designation, with the terms and in the [<1>number]
[<2>aggregate principal amount] specified in Schedule I hereto
(the "Securities").
2. Description of Securities.
-------------------------
[1 The Securities shall have the preferences,
designations, rights, privileges, powers, restrictions,
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
<PAGE>
limitations and qualifications set forth in the
Company's Restated Articles of Incorporation, as
amended, with respect to preference stock and the
proposed resolutions of the Company's Board of
Directors establishing and setting forth the terms of
the Securities, copies of which have been furnished to
Winthrop, Stimson, Putnam & Roberts ("Counsel for the
Underwriters").]
[2 The Securities are to be issued pursuant to the
provisions of an Indenture (For Unsecured Debt
Securities), dated as of , 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".]
3. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to the several Underwriters
that:
(a) The Company and three of its financing
subsidiaries (the "Trusts") have filed with the Securities
and Exchange Commission (the "Commission") a registration
statement on Form S-3 on , 1999 (Registration
Nos. 333- , 333- -01, 333- -02 and 333- -03)
for the registration under the Securities Act of 1933, as
amended (the "Securities Act") of $510,000,000 aggregate
amount of (i) the Company's Preference Stock, $25 par value,
(ii) the Company's unsecured debt securities ("Debt
Securities") and (iii) the preferred trust securities of the
Trusts, an equal principal amount of the Company's junior
subordinated debentures and guarantees and other obligations
of the Company in respect of such preferred trust
securities. Such registration statement ("Registration
Statement No. 333- ") became effective on ,
1999. The Company has also filed with the Commission under
the Securities Act, a registration statement on Form S-3 on
June 4, 1998 (Registration No. 333-56055) for the
registration of $2,070,000,000 aggregate amount of the
Company's (i) Debt Securities, (ii) Common Stock, without
par value, to be issued in settlement of Stock Purchase
Contracts, (iii) Stock Purchase Contracts and (iv) Stock
Purchase Units, of which all but $170,000,000 aggregate
amount of such securities have been previously issued. Such
registration statement, as amended by Amendment No. 1
thereto, was declared effective by the Commission on June
29, 1998. Such registration statement ("Registration
Statement No. 333-56055") was further amended by Post-
Effective Amendment No. 1, which was filed and became
effective on July 13, 1998. In addition, the Company and
TXU Capital I have filed with the Commission under the
Securities Act, a registration statement on Form S-3 on
December 10, 1998 (Registration Nos. 333-68663 and 333-
68663-01) for the registration of $400,000,000 aggregate
amount of (i) the Company's Debt Securities and (ii) certain
trust securities of TXU Capital I and related securities of
the Company, of which all but $170,000,000 aggregate
principal amount of the Company's Debt Securities have been
previously issued. Such registration statement
("Registration Statement No. 333-68663") became effective on
December 18, 1998. References herein to the term
"Registration Statement" as of any date shall be deemed to
refer to each of Registration Statement Nos. 333- ,
Registration Statement No. 333-56055 and Registration
Statement No. 333-68663, each 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"). References herein to the term
"Prospectus" as of any given date shall be deemed to refer
to the combined prospectus relating to the securities
registered under Registration Statement 333- and the
securities registered and remaining unissued under
Registration Statement 333-56055 and 333-68663 that forms a
part of Registration Statement No. 333- , as amended or
supplemented as of such date (other than by amendments or
supplements relating to securities other than the
Securities), including all Incorporated Documents as of such
date and including any prospectus supplement relating to the
Securities; provided that if the Company files a
registration statement with the Commission pursuant to
Section 462(b) of the Securities Act Regulations (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 "Effective Date" shall be deemed to refer
to the time and date Registration Statement No. 333- ,
as the case may be, was declared effective. 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 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
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 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. 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 Company shall sell to each of the
Underwriters, and each Underwriter shall purchase from the
Company, at the time and place herein specified, severally
and not jointly, the respective number or aggregate amount
of the 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 $ per Security.
5. Time and Place of Closing. Delivery of the
-------------------------
Securities, against payment of the aggregate purchase price
therefor, plus accumulated dividends or interest, as the case may
be, thereon, if any, from the date of original issuance to the
date of payment for and delivery of the Securities by wire
transfer in federal funds shall be made at the offices 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 preceding the Closing Date] [to
you for the respective accounts of the several Underwriters of
certificates for the Securities registered in such names and in
such denominations as you shall request in writing not less than
three full business days prior to the Closing Date]. 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 offices of Thelen
Reid & Priest, 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 [1 number] [2 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, [1 number] [2 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
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 number or amount of the
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
<PAGE>
Securities that it had agreed to purchase hereunder as
hereinabove provided and, in addition, the [1 number]
[2 principal amount] of the Securities that the defaulting
Underwriter shall have so failed to purchase up to a number
or amount thereof equal to one-ninth (1/9) of the number or
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 Conduct Rules), to purchase, upon the terms
herein set forth, either all or a part of the [number]
[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 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,
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
<PAGE>
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 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 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, 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
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 Securities as provided in Section 5 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, 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.
[2 (h) During the period from the date of this
Agreement to the Closing Date, the Company will not, 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 Securities are being
---------------
2 For use in connection with Unsecured Debt Securities.
<PAGE>
offered and sold, any securities of the Company or any of
its subsidiaries which are of the same class as the
Securities.]
7. 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 (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
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 applicable published rules and
regulations 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 applicable
published rules and regulations 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 and of certain material direct or indirect
subsidiaries 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 which caused
them to believe that (A) the unaudited financial statements
of the Company 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 of the
Company, (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 of the Company,
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, 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 sheets of the
Company 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 which are described in such letter, and
(iv) 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 accounting system of such
companies 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) Since the most recent dates as of which
information 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,
and, since such dates, there shall not have been any material
transaction entered into by the Company and its subsidiaries,
in each case other than transactions 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.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Securities as described in
the Prospectus shall have been satisfactory in form and
substance to Counsel for the Underwriters.
[2 (g) At the Closing Date, (i) the Securities shall
be rated at least by Moody's Investor
Services ("Moody's"), and Standard & Poor's Corporation
("S&P"), respectively, and the Company shall have delivered
to you a letter from each such rating agency, or other
evidence satisfactory to you, confirming that the have such
ratings, and (ii) neither Moody's nor S&P shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of the
Securities, any other securities of the Company or a special
purpose subsidiary of the Company which are of the same
class as the Securities or the financial condition of the
Company.]
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.
---------------
2 For use in connection with Unsecured Debt Securities.
<PAGE>
8. 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 6(g) and 9 hereof.
9. 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 any amendment or supplement thereto), 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 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, 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 Securities to any
person if a copy of the Prospectus (including any amendment
or supplement thereto if any amendments or supplements
thereto shall have been furnished to the Underwriters at or
prior to the time of written confirmation of the sale
involved) (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 9 and the representations and warranties of the
Company 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 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 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
Company in writing expressly for use in the Prospectus.
[indicate topics addressed and location 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
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 omission so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability which 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 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 such 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, to participate in
the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the
indemnifying party shall not be liable for the expenses of
more than one separate counsel representing the indemnified
parties who are parties to such action).
(d) If the indemnification provided for in
subparagraph (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 which 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 (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which 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 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 [number] [principal
amount] of 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
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 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 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, doing
business as TXU Corp
By
----------------------------
Accepted and delivered as of
the date first above written
[Representatives of Underwriters]
By:
By:
----------------------------------
<PAGE>
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives:
Designation:
[1 Liquidation Preference Amount:]
[2 Principal Amount:]
Date of Maturity:
[1 Dividend Rate:]
[2 Interest Rate:]
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
<PAGE>
SCHEDULE II
-----------
TEXAS UTILITIES COMPANY, doing business as TXU CORP
[Number] [Principal
Amount] of
Name Securities
---- ----------
Total
==========
<PAGE>
SCHEDULE III
------------
[LETTERHEAD OF WORSHAM, FORSYTHE & WOOLDRIDGE, L.L.P.]
[Date]
as Representatives of the Underwriters named in Schedule II
to the Underwriting Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Company, doing business as TXU Corp (the "Company") in connection
with the issuance and sale by the Company of of its
----
("Securities") pursuant to the Underwriting
-------------
Agreement dated among the Company and you (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, [2 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 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.
[2 We have relied upon a certificate of the Indenture Trustee as
to the authentication of the Securities.] In our examination we
---------------
2 For use in connection with Debt Securities.
<PAGE>
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:
() 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 [2 and the Indenture], (b) to issue the
Securities [2 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.
() The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
[1 () The Securities conform as to legal matters with
the statements concerning them in the Prospectus, have been duly
and validly authorized and issued, are fully paid and
nonassessable, and are entitled to the rights, privileges and
preferences set forth in the Articles of Incorporation, as
amended, of the Company.]
[2 () The Indenture has been duly qualified under the
Trust Indenture Act.
() The Securities 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 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, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.]
() The statements made in the Prospectus under the
captions [Insert titles of sections describing the Securities in
the Prospectus and Prospectus Supplement], 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.
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Debt Securities.
<PAGE>
() The Company is not, and after giving effect to the
issuance and sale of the Securities will not 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.
() 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;
() 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 opinion), 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.
() 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.
() 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 its
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. For purposes of this
opinion, the term "Principal Subsidiary" shall mean,
collectively, the following companies: TXU Eastern Holdings
Limited, 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, 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 Company's independent certified public
accountants who audited certain of the financial statements
contained in documents 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 paragraph [Insert
number of paragraph referring to Sections of the Prospectus]
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 financial
statements and schedules and other financial and statistical data
and except as to 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 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 IV
[LETTERHEAD OF THELEN REID & PRIEST LLP]
New York, New York
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company,
doing business as TXU Corp (the "Company") in connection with the
issuance and sale by the Company of of its
---- ---------------
"Securities") pursuant to the Underwriting Agreement dated
among the Company and you (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, [2 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 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. [2
We have relied upon a certificate of the Indenture Trustee as to
the authentication of the Securities.] In our examination we
have assumed the genuineness of all signatures and the
---------------
2 For use in connection with Debt Securities.
<PAGE>
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:
() The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
[1 () The Securities conform as to legal matters with
the statements concerning them in the Prospectus, have been duly
and validly authorized and issued, are fully paid and
nonassessable, and are entitled to the rights, privileges and
preferences set forth in the Articles of Incorporation, as
amended, of the Company.]
[2 () The Indenture has been duly qualified under the
Trust Indenture Act.
() The Securities 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 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, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.]
() The statements made in the Prospectus under the
captions [Insert titles of sections describing the Securities in
the Prospectus and Prospectus Supplement], 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 Company is not, and after giving effect to the
issuance and sale of the Securities will not 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.
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Debt Securities.
<PAGE>
() 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 opinion), 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.
() 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 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 Company's independent certified public
accountants who audited certain of the financial statements
contained in documents 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 paragraph [Insert
number of paragraph referring to Sections of the Prospectus]
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 financial
statements and schedules and other financial and statistical data
and except as to 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 V
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement as defined herein
c/o
Ladies and Gentlemen:
We have acted as counsel to you and the several
Underwriters in connection with the issuance and sale by the
Texas Utilities Company, doing business as TXU Corp (the
"Company") of of its ("Securities")
---- -------------
pursuant to the Underwriting Agreement dated
--------------
among the Company and you (the "Underwriting Agreement").
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 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., 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, 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:
() The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
[1 () The Securities conform as to legal matters with
the statements concerning them in the Prospectus, have been duly
and validly authorized and issued, are fully paid and
nonassessable, and are entitled to the rights, privileges and
preferences set forth in the Articles of Incorporation, as
amended, of the Company.]
[2 () The Indenture has been duly qualified under the
Trust Indenture Act.
() The Securities 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 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, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.]
() The statements made in the Prospectus under the
captions [Insert titles of sections describing the Securities in
the Prospectus and Prospectus Supplement], 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.
() 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.
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Debt Securities.
<PAGE>
() 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.
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 the Company's officers and
representatives, and representatives of certain of its
subsidiaries, with counsel for the Company, with Deloitte &
Touche LLP, the Company's independent public accountants who
audited certain of the financial statements 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 opinion or belief as
to the financial statements and schedules 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 1(b)
[Name of Trust]
Preferred Trust Securities
UNDERWRITING AGREEMENT
[Date]
as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
------------
corporation doing business as TXU Corp (the "Company") and its
financing subsidiary, [Name of Trust], 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 Preferred Trust 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 , 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 (the "Debentures")
pursuant to an Indenture, dated as of December 1, 1998, between
the Company and The Bank of New York, as trustee (the
"Indenture") and (ii) to issue a guarantee of the Preferred Trust
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 and [name additional registrants]
have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 on
, 1999 (Registration Nos. 333 , 333 -01, 333 -
02 and 333 -03) for the registration under the Securities
Act of 1933, as amended (the "Securities Act"), of
$510,000,000 aggregate amount of (i) the Company's
Preference Stock, $25 par value, (ii) the Company's
unsecured debt securities ("Debt Securities") and (iii) the
preferred trust securities of the Trust and [name additional
registrants], an equal principal amount of the Company's
junior subordinated debentures and guarantees and other
obligations of the Company in respect of such preferred
trust securities. Such registration statement
("Registration Statement No. 333 ") included a combined
prospectus relating to such securities, to $170,000,000
aggregate amount of Stock Purchase Contracts, Common Stock
to be issued in settlement thereof, Stock Purchase Units and
Debt Securities registered under a prior registration
statement, and to $170,000,000 of Debt Securities registered
under another prior registration statement. Registration
Statement No. 333 was declared effective by the
Commission on . References herein to the
term "Registration Statement" as of any date shall be deemed
to refer to Registration Statement No. 333 , 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
respect to securities registered under Registration
Statement No. 333 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 combined prospectus, including any
preliminary prospectus, forming a part of Registration
Statement No. 333 , as amended or supplemented as of such
date (other than by amendments or supplements relating to
securities other than the Preferred Trust Securities),
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 No. 333 , any
post-effective amendment to Registration Statement Nos. 333
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 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. 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 number 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 $ per Preferred Trust Security.
5. Time and Place of Closing. Delivery of the
-------------------------
Preferred Trust Securities against payment of the aggregate
purchase price therefor by wire transfer in federal funds shall
be made at the offices 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 Preferred Trust 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 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 offices 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
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 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 applicable published rules and
regulations 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 applicable
published rules and regulations 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 and of certain directand indirect subsidiaries
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 which caused
them to believe that (A) the unaudited financial statements
of the Company 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 of the
Company, (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 of the Company,
incorporated by reference in the Prospectus, (C) for the
twelve months ended , 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, 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 sheets of the
Company 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 which are described in such letter, and
(iv) 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 accounting system of such
companies 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) Since the most recent dates as of which
information 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,
and, since such dates, there shall not have been any material
transaction entered into by the Company and its subsidiaries,
in each case other than transactions 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.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Preferred Trust
Securities, the Debentures, the Guarantee, and the common
trust securities to be issued by the Trust as described in
the Prospectus shall have been satisfactory in form and
substance to Counsel for the Underwriters.
(g) At the Closing Date, (i) the Preferred Trust
Securities shall be rated at least by Moody's
Investor Services ("Moody's"), and Standard & Poor's
Corporation ("S&P"), respectively, and the Company shall
have delivered to you a letter from each such rating agency,
or other evidence satisfactory to you, confirming that the
Preferred Trust Securities have such ratings, and (ii)
neither Moody's nor S&P shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of the Preferred Trust Securities,
any other securities of the Company or a special purpose
subsidiary of the Company which are of the same class as the
Preferred Trust Securities or the financial condition of the
Company.
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 any amendment or supplement
thereto), 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 information
furnished in writing to the Offerors by or on behalf of any
Underwriter, 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
(including any amendment or supplement thereto if any
amendments or supplements thereto shall have been furnished
to the Underwriters at or prior to the time of written
confirmation of the sale involved) (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
[indicate topics addressed and location 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 omission so to
notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from
any liability which 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 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 such 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, to participate in the defense of such action on
behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
(d) If the indemnification provided for in
subparagraph (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 which 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 which 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, doing
business as TXU CORP
By
-----------------------------
[NAME OF TRUST]
By
-----------------------------
(Authorized Representative)
Accepted and delivered as of
the date first above written
[REPRESENTATIVES OF UNDERWRITERS]
By:
By:
-----------------------------------
<PAGE>
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives:
Designation:
Liquidation Preference Amount:
Date of Maturity:
Distribution Rate:
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
<PAGE>
SCHEDULE II
-----------
[Name of Trust]
Preferred Trust Securities
Number of
Preferred Trust
Name Securities
---- ---------------
Total ==========
$
<PAGE>
SCHEDULE III
------------
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
Re: [Name of Trust]
---------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Texas
Utilities Company, a Texas corporation doing business as TXU Corp
(the "Company"), and [Name of Trust], 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
, 1999 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on , 1999;
(b) The Trust Agreement of the Trust, dated as of
, 1999, by and among the Company and the trustees of
the Trust named therein;
(c) The Prospectus, dated , 1999, and the
Prospectus Supplement, dated , (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 , (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 ,
(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 , , 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
Trust Security Holder") to whom a Common Trust Security of the
Trust representing common undivided beneficial interests in the
assets of the Trust (each, a "Common Trust Security" and
collectively, the "Common Trust Securities") (the Preferred Trust
Securities and the Common Trust Securities being hereinafter
collectively referred to as "Trust Securities") is to be issued
by the Trust of a Common Trust Securities Certificate for the
Common Trust Security and the payment for the Common Trust
Security acquired by it, in accordance with the Trust Agreement,
and as described in the Prospectus, (ix) that the Common Trust
Securities are issued and sold to the Common Trust 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', Worsham, Forsythe & Wooldridge, L.L.P.'s 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.]
[Date]
as Representatives of Underwriters named in Schedule II
to the Underwriting Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Company, doing business as TXU Corp (the "Company") in connection
with the transactions contemplated by the Underwriting Agreement
dated , 1999 among the Company, [Name of Trust] (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 amount of $
,000,000, (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
respective 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 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.
6. The statements made in the Prospectus under the
captions "Description of TXU Capital's Preferred Trust Securities
and Common Trust Securities," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee",
"Certain Terms of the Preferred Trust Securities" and "Certain
Terms of the Junior Subordinated Debentures", 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;
7. 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.
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, 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
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
opinion) 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 opinion), 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 its
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. For purposes of this
opinion, the term "Principal Subsidiary" shall mean,
collectively, the following companies: TXU Eastern Holdings
Limited, 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, 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 Company's independent certified public
accountants who audited certain of the financial statements
contained in documents 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 (including
the documents incorporated therein by reference) 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 as to financial
statements and schedules and other financial and statistical data
and except as to 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 all matters of
Delaware law, we have, with your consent, relied upon the opinion
of Richards, Layton & Finger, P.A., Wilmington, Delaware, special
counsel for the Company and the Trust; and as to matters of the
law of the United Kingdom, we have, with your consent relied upon
the opinions of 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
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company,
doing business as TXU Corp (the "Company") in connection with the
transactions contemplated by the Underwriting Agreement dated
, 1999 among the Company, [Name of Trust] (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 amount of $ ,000,000, (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 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
respective 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 TXU Capital's Preferred Trust Securities
and Common Trust Securities," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee",
"Certain Terms of the Preferred Trust Securities" and "Certain
Terms of the Junior Subordinated Debentures" 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. 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 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 opinion) 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 opinion), 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 Company's independent certified public
accountants who audited certain of the financial statements
contained in documents 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 (including
the documents incorporated therein by reference) 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 as to financial statements and schedules
and other financial and statistical data and except as to 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; as to all matters
of Delaware law, we have, with your consent, relied upon the
opinion of Richards, Layton & Finger, P.A., Wilmington, Delaware,
special counsel for the Company and the Trust. We believe that
you and we are justified in relying on such opinions.
Very truly yours,
THELEN REID & PRIEST LLP
<PAGE>
SCHEDULE VI
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement as defined herein
c/o
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 , 1999 between Texas
Utilities Company, doing business as TXU Corp (the "Company"),
[Name of Trust] (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 $ ,000,000 aggregate liquidation preference amount of its
Preferred Trust Securities (the "Preferred Trust Securities"),
(ii) the Company proposes to issue $ principal amount
of its 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 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., 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
respective 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 TXU Capital's Preferred Trust Securities
and Common Trust Securities," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee",
"Certain Terms of the Preferred Trust Securities", and "Certain
Terms of the Junior Subordinated Debentures", 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. 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 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, 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 the Company's officers and
representatives, and representatives of certain of its
subsidiaries, with counsel for the Company, with Deloitte &
Touche LLP, the Company's independent public accountants who
audited certain of the financial statements contained in
documents 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 opinion or belief as to the financial statements and
schedules 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,
AMENDED AND RESTATED ARTICLES OF INCORPORATION
TEXAS UTILITIES COMPANY
Texas Utilities Company, pursuant to the provisions of Article
4.07 of the Texas Business Corporation Act, hereby adopts Amended
and Restated Articles of Incorporation which accurately copy the
Restated Articles of Incorporation and all amendments thereto
that are in effect to date and as further amended by such Amended
and Restated Articles of Incorporation as hereinafter set forth
and which contain no other change in any provision thereof.
ARTICLE ONE
The name of the corporation is Texas Utilities Company.
ARTICLE TWO
The Restated Articles of Incorporation of the corporation
are amended by the Amended and Restated Articles of Incorporation
as follows:
Article VI of the Restated Articles of Incorporation is
hereby amended and replaced by Article VI of the Amended and
Restated Articles of Incorporation to increase the number of
authorized shares of the corporation.
ARTICLE THREE
The amendment to Article VI of the Restated Articles of
Incorporation does not necessitate an exchange, reclassification
or cancellation of issued shares.
ARTICLE FOUR
The amendment to Article VI of the Restated Articles of
Incorporation does not effect a change in stated capital.
ARTICLE FIVE
The amendment made by the Amended and Restated Articles of
Incorporation has been effected in conformity with the provisions
of the Texas Business Corporation Act and the amendment made by
the Amended and Restated Articles of Incorporation was duly
adopted by the shareholders of the corporation on the 14th day of
May, 1999.
ARTICLE SIX
The number of shares outstanding was 282,332,819; the number
of shares entitled to vote on the amendment to the Restated
Articles of Incorporation was 282,332,819; the number of shares
voted for such amendment to the Restated Articles was
217,575,533; and the number of shares voted against such
amendment to the Restated Articles was 24,771,161.
ARTICLE SEVEN
The Restated Articles of Incorporation and all amendments
and supplements thereto are hereby superseded by the following
Amended and Restated Articles of Incorporation which accurately
copy the entire text and as amended as above set forth:
ARTICLE I.
The name of the Corporation is Texas Utilities Company.
ARTICLE II.
The purposes for which the Corporation is formed are to
subscribe for, purchase, invest in, hold, own, assign, pledge and
otherwise deal in and dispose of shares of capital stock, bonds,
mortgages, debentures, notes and other securities, obligations,
contracts and evidences of indebtedness of public utility
companies and other foreign or domestic corporations; to organize
or promote or facilitate the organization of subsidiary
corporations; to aid in any manner permitted by law any
corporation in which the Corporation owns shares of stock or in
which the Corporation has any other legal or equitable interest;
and to do all such things as may be necessary, appropriate,
convenient or incidental to the foregoing purposes.
ARTICLE III.
The post office address of the registered office of the
Corporation is 1601 Bryan Street, Dallas, Texas 75201, and the
name of its registered agent at such address is Peter B. Tinkham.
ARTICLE IV.
The duration of the Corporation is perpetual.
ARTICLE V.
The affairs of the Corporation shall be managed by a board
of directors, who shall be chosen by ballot at the annual meeting
of the shareholders, or any meeting of shareholders held in place
thereof, and shall serve until their successors are elected
unless removed as herein provided for.
Vacancies in the board of directors, except vacancies in the
board of directors caused by an increase in the number of
directors, may be filled by the board at any meeting. Vacancies
in the board of directors arising from an increase in the number
of directors shall be filled at a meeting of the shareholders
called for the purpose of filling such vacancies. Any or all of
the directors may at any time be removed, whether cause be
assigned for such removal or not, by the vote of the holders of a
majority in aggregate number of the shares of stock of the
Corporation then outstanding, given at a special meeting called
for the purpose of considering any such action.
The number of directors presently constituting the board of
directors of the Corporation is ten and the names and addresses
of the persons now serving as directors are as follows:
Name Address
---- -------
Derek C. Bonham London, England
J. S. Farrington Dallas, Texas
Kerney Laday Dallas, Texas
William M. Griffin Hartford, Connecticut
Margaret N. Maxey Austin, Texas
James A. Middleton Los Angeles, California
Erle Nye Dallas, Texas
J. E. Oesterreicher Dallas, Texas
Charles R. Perry Odessa, Texas
Herbert H. Richardson College Station, Texas
ARTICLE VI.
The total number of shares that may be issued by the
Corporation is one billion fifty million (1,050,000,000) shares,
of which fifty million (50,000,000) shares are classified as
serial preference stock having the par value of $25 per share,
and one billion (1,000,000,000) shares are classified as common
stock without par value.
The descriptions of the different classes of stock of the
Corporation and the preferences, designations, relative rights,
privileges, powers, restrictions, limitations and qualifications
of said classes of stock are as follows:
DIVISION A--PREFERENCE STOCK
1. Series and Limits of Variations between Series. Subject
to the provisions of Division B of this Article VI (which
provisions, however, shall not continue effective as to any
shares which are redeemed or repurchased and restored to the
status of authorized but unissued shares), the preference stock
may be divided into and issued in one or more series from time to
time as herein provided, each series to be so designated as to
distinguish the shares thereof from the shares of all other
series and classes. The authorized number of shares of any such
series, the designation of such series, and the terms and
characteristics thereof (in those respects in which the shares of
one series may vary from the shares of other series as herein
provided) shall be fixed at any time prior to the issuance
thereof by resolution or resolutions of the board of directors of
the Corporation. The preference stock of all series shall be of
the same class and of equal rank and shall be identical in all
respects, except that there may be variations in the following
particulars:
(a) The rate at which annual dividends are to accrue
on the shares of such series, hereinafter referred to as the
"fixed dividend rate;"
(b) The terms and conditions on which the shares of
such series may be redeemed, and the amount payable in
respect of the shares of such series in case of the
redemption thereof at the option of the Corporation (the
amount so fixed being hereinafter referred to as the "fixed
redemption price"), and the amount payable in respect of the
shares of such series in case of the redemption thereof for
any sinking fund of such series, which amounts in respect of
any series may, but need not, vary according to the time or
circumstances of such action;
(c) The amount payable in respect of the shares of
such series in case of liquidation, dissolution or winding
up of the Corporation (the amount so fixed being hereinafter
referred to as the "fixed liquidation price"), and the
amount payable, if any, in addition to the fixed liquidation
price for each series, in case such liquidation, dissolution
or winding up be voluntary (the amount so fixed being
hereinafter referred to as the "fixed liquidation premium"),
which amounts in respect of any series may, but need not,
vary according to the time or circumstances of such action;
(d) Any requirement as to any sinking fund or purchase
fund for, or the redemption, purchase or other retirement by
the Corporation of, the shares of such series; and
(e) The right, if any, to exchange or convert the
shares of such series into shares of any other series of the
preference stock, or, to the extent permitted by law, into
shares of any other class of stock of the Corporation, and
the rate or basis, time, manner and conditions of exchange
or conversion or the method by which the same shall be
determined.
2. Dividends. Out of the assets of the Corporation legally
available for dividends, the holders of the preference stock of
each series shall be entitled, in preference to the holders of
the common stock, to receive, but only when and as declared
payable by the board of directors, dividends at the fixed
dividend rate for such series, and no more, payable quarterly in
each year, on the dividend payment dates established for such
series, or otherwise as the board of directors may determine, to
shareholders of record as of a date not exceeding thirty (30)
days nor less than ten (10) days preceding such dividend payment
dates, and such dividends on the preference stock shall be
cumulative, so that, if in any past dividend period or periods
full dividends upon each series of the outstanding preference
stock at the fixed dividend rate or rates therefor shall not have
been paid, the deficiency (without interest) shall be paid or
declared and set apart for payment before any dividends shall be
paid upon or set apart for the common stock (other than a
dividend payable in common stock of the Corporation). Dividends
on all shares of the preference stock of each series shall
commence to accrue and be cumulative from the dividend date for
such series next preceding the date of issue of the initial
shares of such series, or from said date of issue, if that be a
dividend date or from a date fixed by the board of directors at
the time the relative rights and preferences of such series are
fixed and determined. Any dividends paid on the preference stock
in any amount less than full cumulative dividends accrued or in
arrears upon all preference stock outstanding shall, if more than
one series be outstanding, be divided between the different
series in proportion to the aggregate amounts which would be
distributable to the preference stock of each series if full
cumulative dividends were declared and paid thereon.
3. Preference on Liquidation, etc. In the event of any
liquidation, dissolution or winding up of the Corporation, the
holders of the preference stock of each series shall have a
preference over the holders of the common stock until the fixed
liquidation price per share for such series, plus, in case such
liquidation, dissolution or winding up shall have been voluntary,
the fixed liquidation premium per share for such series, if any,
together in all cases with unpaid accumulated dividends, if any,
shall have been paid or distributed or declared and set apart for
payment or distribution, but the holders of the preference stock
shall be entitled to no further participation in any such
distribution. If upon any such liquidation, dissolution or
winding up, the assets distributable among the holders of the
preference stock shall be insufficient to permit the payment of
the full preferential amounts aforesaid, then the entire assets
of the Corporation to be distributed shall be distributed among
the holders of each series of the preference stock then
outstanding, ratably in proportion to the full preferential
amounts to which they are respectively entitled. Nothing in this
Section 3 shall be deemed to prevent the purchase or redemption
of preference stock in any manner permitted by Section 4 of this
Division A, nor shall anything in this Section 3 be deemed to
prevent the purchase or redemption by the Corporation of shares
of its common stock if the requirements of Section 6 of this
Division A shall be complied with. No such purchase or redemption
shall be deemed to be a liquidation, dissolution or winding up of
the Corporation or a distribution of assets to its common
shareholders within the meaning of this Section 3 whether or not
shares of common stock so redeemed or purchased shall be retired,
nor shall a consolidation or merger of the Corporation or a sale
or transfer of substantially all of its assets as an entirety be
regarded as a liquidation, dissolution or winding up of the
Corporation within the meaning of this Section 3.
4. Redemption and Repurchase. The Corporation may at any
time or from time to time, by resolution of the board of
directors, redeem (subject to any terms of a particular series
restricting refunding or redemption thereof) all or any part of
the preference stock, or of any series thereof, by paying in cash
the fixed redemption price applicable thereto plus the amount of
unpaid accumulated dividends, if any, to the date of such
redemption. If less than all the shares of one series of
preference stock is to be redeemed, the shares to be redeemed
shall be selected ratably or by lot, in such manner as may be
prescribed by resolution of the board of directors, by an
independent bank or trust company selected for that purpose by
the board of directors. Notice of such redemption shall be mailed
to each holder of redeemable shares being called, not less than
twenty (20) nor more than fifty (50) days before the date fixed
for redemption, at his address as it appears on the stock
transfer books of the Corporation, with postage thereon prepaid.
Such notice of redemption of such shares shall set forth the
series or part thereof to be redeemed, the date fixed for
redemption, the redemption price, and the place at which the
shareholders may obtain payment of the redemption price upon
surrender of their respective share certificates. From and after
the date fixed in any such notice as the date of redemption,
unless default shall be made by the Corporation in providing
funds sufficient for such redemption at the time and place
specified for the payment thereof pursuant to said notice, all
dividends on the shares so redeemed shall cease to accrue, and
all rights of the holders of such shares as shareholders of the
Corporation, except only the right to receive the redemption
funds to which they are entitled, shall cease and determine.
The Corporation may, on or prior to the date fixed for any
redemption, deposit with any bank or trust company in the State
of Texas, or any bank or trust company in the United States duly
appointed and acting as a transfer agent of the Corporation, as a
trust fund, a sum sufficient to redeem shares called for
redemption, with irrevocable instructions and authority to such
bank or trust company to give or complete the notice of
redemption thereof and to pay, on or after the date fixed for
such redemption, to the respective holders of shares, as
evidenced by a list of holders of such shares certified by the
Corporation by its President or a Vice President and by its
Secretary or an Assistant Secretary, the redemption price upon
the surrender of their respective share certificates. Thereafter,
from and after the date fixed for redemption, such shares shall
be deemed to be redeemed and dividends thereon shall cease to
accrue after such date fixed for redemption. Such deposit shall
be deemed to constitute full payment of such shares to their
holders. Thereafter, from and after the date fixed for
redemption, such shares shall no longer be deemed to be
outstanding, and the holders thereof shall cease to be
shareholders with respect to such shares and shall have no rights
with respect thereto except the right to receive from the bank or
trust company payment, without interest, of the redemption price
of such shares plus the amount of unpaid accumulated dividends
upon the surrender of their respective certificates therefor, and
any right to convert such shares which may exist. In case the
holders of such shares shall not, within six (6) years after such
deposit, claim the amount deposited for redemption thereof, such
bank or trust company shall upon demand pay over to the
Corporation the balance of such amount so deposited, together
with any interest accrued thereon, which shall become the
property of the Corporation, and such bank or trust company shall
thereupon be relieved of all responsibility to the holders
thereof.
Nothing contained in this Section 4 shall limit the right of
the Corporation to purchase or otherwise acquire shares of the
preference stock to the extent permitted by law.
Shares of preference stock of the Corporation redeemed or
purchased by the Corporation shall be restored to the status of
authorized but unissued shares of preference stock without
designation, and may from time to time be reissued as provided in
Section I of this Division A. All such redemptions and purchases
of preference stock of the Corporation shall be effected in
accordance with the laws of the State of Texas governing
redemption or purchase or redeemable shares.
5. Voting Rights. The holders of the preference stock
shall not be entitled to vote except (a) as expressly conferred
in Article VII hereof, or (b) as may from time to time be
mandatorily provided by the laws of Texas, or (c) for the
election of one-third (adjusted to the nearest whole number) of
the board of directors or two directors, whichever is greater,
when and as dividends on any of the outstanding preference stock
shall be in default in an amount equivalent to four (4) full
quarterly dividends and thereafter until no dividends on any
preference stock shall be in default or until dividends on any of
the outstanding preference stock shall be in default in an amount
equivalent to eight (8) full quarterly dividends, whichever event
shall first occur, or (d) for the election of the smallest number
of directors necessary so that a majority of the full board shall
have been elected by the holders of the preference stock when and
as dividends on any of the outstanding preference stock shall be
in default in an amount equivalent to eight (8) full quarterly
dividends, and thereafter until no dividends on any preference
stock shall be in default.
The terms of office of all persons who may be directors of
the Corporation at any time when a right to elect members of the
board of directors shall accrue to the holders of the preference
stock shall terminate upon the election of their successors,
except that if the holders of the common stock shall not have
elected the remaining directors of the Corporation, then, and
only in that event, the directors of the Corporation in office
just prior to the right of the holders of preference stock to
elect the members of the board of directors shall elect the
remaining directors of the Corporation. Thereafter, during the
continuance of any right of the holders of preference stock to
elect the members of the board of directors, as provided above,
the remaining directors, whether elected by directors, as
aforesaid, or whether originally or later elected by holders of
the common stock, shall continue in office until their successors
are elected by holders of the common stock and shall qualify. The
term of office of the directors so elected by the holders of the
preference stock, voting separately as a class, and of the
directors elected by the holders of the common stock, voting
separately as a class, or elected by directors, as aforesaid,
shall be until the right of the holders of the preference stock
to elect directors shall terminate, as provided above, and until
their successors shall have been elected and shall have
qualified.
Upon the termination of the right of the holders of the
preference stock to elect members of the board of directors, as
provided above, the voting power of the holders of the preference
stock and the holders of the common stock shall revert to the
status existing before the first dividend payment date on which
dividends on any of the preference stock were not paid in full,
but always subject to the same provisions for vesting such right
in the holders of the preference stock in case of further like
default or defaults in the payment of dividends thereon. Upon
termination of any such voting right upon payment of all
accumulated and defaulted dividends on the preference stock, the
terms of office of all persons who have been elected directors of
the Corporation by vote of the holders of the preference stock as
a class, pursuant to such voting right, shall terminate as
hereinabove provided, and the resulting vacancies shall be filled
by the vote of a majority of the remaining directors.
In case of any vacancy in the office of a director occurring
among the directors elected by the holders of the preference
stock, voting as a class, the remaining directors elected by the
holders of the preference stock, by affirmative vote of a
majority thereof, or the remaining director so elected if there
be but one, may elect a successor or successors to hold office
for the unexpired term or terms of the director or directors
whose place or places shall be vacant. In case of any vacancy in
the office of a director occurring among the directors elected by
the holders of the common stock, voting separately as a class, or
elected by directors, as aforesaid, the remaining directors so
elected, by affirmative vote of a majority thereof, or the
remaining director so elected if there be but one, may elect a
successor or successors to hold office for the unexpired term or
terms of the director or directors whose place or places shall be
vacant.
Whenever dividends on the preference stock shall be in
default, as provided in this Section 5, it shall be the duty of
the President, a Vice President or the Secretary of the
Corporation, or in the event of their failure to do so within
twenty (20) days of such default, the privilege is granted any
holder of preference stock who shall first demand the right so to
do by written notice to the Corporation, forthwith to cause
notice to be given to the holders of the preference stock and to
the holders of the common stock of a meeting to be held at such
time as the Corporation's officers, or such holder of preference
stock, as the case may be, may fix, not less than ten (10) nor
more than sixty (60) days after the accrual of such privilege,
for the purpose of electing directors. Each holder of record of
preference stock, or his legal representative, shall be entitled
at such meeting to one vote for each share of preference stock
standing in his name on the books of the Corporation. At each
meeting of shareholders held for such purpose, the presence in
person or by proxy of the holders of a majority of the common
stock shall be required to constitute a quorum of the common
stock for the election of directors, and the presence in person
or by proxy of the holders of a majority of the preference stock
shall be required to constitute a quorum of the preference stock
for the election of directors; provided, however, that the
absence of a quorum of the holders of stock of either the
preference stock or the common stock shall not prevent the
election at any such meeting or adjournment thereof of directors
by such other class, if the necessary quorum of the holders of
stock of such other class is present in person or by proxy at
such meeting or any adjournment thereof, and the directors so
elected and qualified shall constitute the board of directors
with a majority of the directors so elected and qualified
constituting a quorum for meetings of the board until such time
as the other class of shareholders shall elect those directors
which it has a right to elect; and provided, further, that in the
absence of a quorum of holders of stock of either class, a
majority of the holders of the stock of the class, which lacks a
quorum, who are present in person or by proxy shall have power to
adjourn the election of the directors to be elected by such class
from time to time without notice other than announcement at the
meeting, until the requisite quorum of holders of such class
shall be present in person or by proxy, but such adjournment
shall not be made to a date beyond the date for the mailing of
the notice of the next annual meeting of the Corporation or
special meeting in lieu thereof.
6. Restrictions on Certain Corporation Action. So long as
any shares of any series of the preference stock shall remain
outstanding, the Corporation shall not, without the authorization
of the holders of not less than two-thirds of the issued and
outstanding shares of preference stock, voting as a class at a
meeting called for the purpose of approving such action:
(a) Create, authorize or issue any class stock ranking
prior to the preference stock in respect to dividends or
liquidation rights (other than stock issuable upon
conversion of obligations or securities, or upon the
exercise of warrants, rights or options to purchase,
authorized pursuant to (b) below);
(b) Create, authorize or issue any obligation or
security convertible into, or any warrants, rights or
options to purchase or subscribe to, any stock ranking prior
to the preference stock in respect to dividends or
liquidation rights;
(c) Materially alter the provisions hereof relative to
the preference stock, or any series thereof, which would
change the express terms and provisions of such stock,
including any change in the provisions of Section 5 and 6 of
this Division A; provided, however, that if such material
change appertains to outstanding shares of one or more, but
not all, of such series, then for the purposes of this
Section 6 such change shall be deemed to be authorized if
holders of two-thirds of the shares affected shall vote
favorably with respect thereto.
DIVISION B-DESCRIPTION OF ISSUED SERIES
DIVISION C-COMMON STOCK
Subject to the rights expressly conferred upon the holders
of preference stock, under prescribed conditions, by this Article
VI, and subordinate thereto, the holders of the common stock
alone shall:
1. Receive all dividends declared by the board of
directors.
2. Receive all assets of the Corporation available
for distribution to its shareholders in the event of any
liquidation, dissolution or winding up of the Corporation.
The board of directors, by vote of a majority of the members
thereof, may distribute in kind to the holders of the common
stock such remaining assets of the Corporation, or may sell,
transfer or otherwise dispose of all or any of the remaining
property and assets of the Corporation to any other
corporation or other purchaser and receive payment therefor
wholly or partially in cash or property or stock or
obligations of such purchaser, and may sell all or any part
of the consideration received therefor and distribute the
same or the proceeds thereof to the holders of the common
stock.
3. Possess exclusively full voting power for the
election of directors and for all other purposes, except as
set forth in Division A-5 of this Section VI.
ARTICLE VII.
The holders of a majority of the aggregate number of shares
of the outstanding stock of the Corporation, entitled to vote
upon any matter to be acted upon, present in person or by proxy,
shall constitute a quorum for the transaction of business at any
meeting of shareholders, but less than a quorum shall have power
to adjourn. At all meetings of the shareholders, each
shareholder entitled to vote shall be entitled to one vote for
each share of stock held by him and recorded in his name on the
record date for such meeting, and may vote and otherwise act
either in person or by proxy, except that in all elections for
directors every shareholder entitled to vote shall have the right
to vote in person or by proxy the number of shares owned by him
for as many persons as there are directors to be elected, or to
cumulate such shares and give one candidate as many votes as the
number of directors multiplied by the number of his shares shall
equal, or to distribute them on the same principle among as many
candidates as he shall think fit. Any shareholder who intends to
cumulate his votes shall give written notice of such intention to
the secretary of the Corporation on or before the day preceding
the election at which such shareholder intends to cumulate his
votes. Unless otherwise provided by statute or by the articles of
incorporation of the Corporation, when a quorum is present at any
meeting, a majority of the stock represented thereat shall decide
any question before such meeting.
ARTICLE VIII.
Upon any issue for money or other consideration of any
stock, or any securities convertible into stock, of any class
whatsoever of the Corporation that may be authorized from time to
time, no holder of stock of any class shall have any preemptive
or other right to subscribe for, purchase or receive any
proportionate or other share of stock or securities so issued,
but the board of directors may dispose of all or any portion of
such stock or securities as and when it may determine free of any
such rights, whether by offering the same to shareholders or by
sale or other disposition as said board may deem advisable. The
consideration received by the Corporation from the issuance and
sale of any additional shares of common stock without par value
shall be entered in the capital stock account.
ARTICLE IX.
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 or 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
an order or orders issued 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 may 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 X.
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 the 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 the director to the
Corporation or an act or omission that involves intentional
misconduct or a knowing violation of the law;
(c) a transaction from which the 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 the
director is expressly provided for by an applicable statute.
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.
ARTICLE XI.
Any property of the Corporation not essential to the conduct
of its corporate business may be sold, exchanged or otherwise
disposed of by authority of its board of directors, and the
Corporation may sell, exchange or otherwise dispose of any (but
less than all or substantially all) of its property essential to
the conduct of its corporate business and purposes, pursuant to
the affirmative vote of a majority of the board of directors and
the holders of a majority in aggregate number of the shares of
the stock of the Corporation then outstanding and entitled to
vote, for such consideration and upon such terms as may be
approved by a majority of the board of directors and the holders
of a majority in aggregate number of shares of stock of the
Corporation then outstanding and entitled to vote. For the
purposes of this Article XI, the term "property" shall embrace
all property of the Corporation, whether real, personal or mixed,
and shall include, but shall not be limited to, shares of stock,
warrants, script, bonds, debentures, notes, obligations,
mortgages, contracts and other securities or evidences of
indebtedness of any kind or description whatsoever.
ARTICLE XII.
Pursuant to the affirmative vote, in person or by proxy, of
the holders of a majority in aggregate number of the shares of
stock of the Corporation then outstanding and entitled to vote
(1) any or every statute of the State of Texas hereafter enacted,
whereby the rights, powers or privileges of the Corporation are
or may be increased, diminished or in any way affected, or
whereby the rights, powers or privileges of the shareholders of
corporations organized under the law under which the Corporation
is organized are increased, diminished or in any way affected, or
whereby effect is given to the action taken by any part less than
all of the shareholders of any such corporation shall apply to
the Corporation, and shall be binding upon not only the
Corporation but upon every shareholder thereof, to the same
extent as if such statute had been in force at the date of the
making and filing of the charter of the Corporation and/or (2)
amendments to these articles of incorporation authorized at the
time of the making of such amendments by the laws of the State of
Texas may be made, except in cases where a different vote or
consent is required by statute or by the provisions of these
articles of incorporation.
ARTICLE XIII.
The bylaws of the Corporation may be altered, changed or
amended as provided by statute, or at any meeting of the board of
directors by affirmative vote of a majority of all of the
directors, if notice of the proposed change has been delivered or
mailed to the directors at least ten days before the meeting;
provided that the board of directors shall not make or alter any
bylaw fixing their number, qualifications, classification, or
term of office.
ARTICLE XIV.
The Corporation has heretofore complied with the
requirements of law as to the initial minimum capital
requirements without which it could not commence business under
the Texas Business Corporation Act.
Dated 14th day of May, 1999.
TEXAS UTILITIES COMPANY
By: /s/ Diane J. Kubin
---------------------------
Its Authorized Officer
STATEMENT OF RESOLUTION
ESTABLISHING
SERIES PREFERENCE STOCK
OF
TEXAS UTILITIES COMPANY
To the Secretary of State
of the State of Texas
Pursuant to the provisions of Article 2.13 of the Texas
Business Corporation Act, the undersigned corporation submits the
following statement for the purpose of establishing and
designating the Series Preference Stock, par value $25 per
share, and fixing and determining the relative rights and
preferences thereof:
1. The name of the corporation is Texas Utilities Company
(the "Company").
2. The following resolution, establishing and designating
the Series Preference Stock, par value $25 per share, and
fixing and determining the relative rights and preferences
thereof, was duly adopted by the Board of Directors of the
Company on , , and was thereby duly adopted by all
necessary action on the part of the Company:
RESOLVED that shares of the authorized stock
classified as Serial Preference Stock as provided in
Division A of Article VI of the Restated Articles of
Incorporation of the Company, shall constitute the
series of Serial Preference Stock, par value $25 per share,
and is designated as Series Preference Stock, which series
shall have, in addition to the general terms and
characteristics of all the authorized shares of Serial
Preference Stock of the Company, the following distinctive
terms and characteristics:
(a) The Series Preference Stock shall have an annual
dividend rate of dollars and cents ($ ) per
share. Dividends shall be cumulative and shall be payable
quarterly on the first day of , , and
in each year.
Dividends shall accrue on each outstanding share of the
Series Preference Stock or fraction thereof from the date
of original issue of such share or fraction thereof, unless
such date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of
holders entitled to receive a quarterly dividend and before
the Quarterly Dividend Payment Date therefor, in either of
which events such dividends shall accrue from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of the
Series Preference Stock or fraction thereof in an amount
less than the total amount of such dividends at the time
accrued and payable on such shares or fraction thereof shall
be allocated pro rata on a share-by-share basis among all
such shares or fraction thereof at the time outstanding.
The Board of Directors may fix a record date for the
determination of holders of shares of the Series
Preference Stock entitled to receive payment of a dividend
or distribution declared thereon.
(b) The fixed redemption price on the shares of such
series is $ per share if redeemed on or prior to ; and
on and after that date, the fixed redemption price on the
shares of such series shall be $25 per share plus unpaid
and accumulated dividends, if any, to the date of
redemption.
(c) The amount payable upon shares of the Series
Preference Stock, in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Company shall
be $25 per share plus an amount equal to unpaid and
accumulated dividends, if any, to the date of such
involuntary dissolution, liquidation or winding up.
(e) There is no sinking fund for the redemption or
purchase of shares of the Series Preference Stock.
TEXAS UTILITIES COMPANY
-------------------------
By:
Dated: Title:
----------
TRUST AGREEMENT
OF TXU CAPITAL II
This TRUST AGREEMENT of TXU Capital II (the "Trust"),
dated as of May 21, 1999, 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 Trustees")(each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively,
the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "TXU
Capital II", 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
------- -- ---
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 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 application and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable 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 applica-
tions, 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 necessary 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 Securi-
ties 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 capaci-
ty 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, respec-
tively, 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 consti-
tutes and appoints Robert A. Wooldridge, Peter B. Tinkham and
Robert J. Reger, Jr., and each of them, as its or her true and
lawful attorneys-in-fact and agents, with full power of substitu-
tion 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 administra-
tors, 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.
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).
<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/ Diane J. Kubin
--------------------------------
Name: Diane J. Kubin
Title: Assistant Secretary
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By: /s/ Walter N. Gitlin
--------------------------------
Name: Walter N. Gitlin
Title: Vice President
THE BANK OF NEW YORK
(DELAWARE), not in its
individual capacity but
solely as Trustee
By: /s/ Walter N. Gitlin
--------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
LAURA ANDERSON, not in her
individual capacity but solely
as Trustee
By: /s/ Laura Anderson
--------------------------------
<PAGE>
CERTIFICATE OF TRUST
OF
TXU CAPITAL II
THIS CERTIFICATE OF TRUST of TXU Capital II (the "Trust"),
dated as of May 21, 1999, 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 formed hereby is
TXU Capital II.
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, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective upon 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, LAURA ANDERSON,
not in its individual capacity not in her individual capacity
but solely as Trustee but solely as Trustee
By: /s/ Walter N. Gitlin /s/ Laura Anderson
---------------------------- ------------------------------
Name: Walter N. Gitlin
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Walter N. Gitlin
----------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
TRUST AGREEMENT
OF TXU CAPITAL III
This TRUST AGREEMENT of TXU Capital III (the "Trust"),
dated as of May 21, 1999, 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 Trustees")(each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively,
the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "TXU
Capital III", 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
------- -- ---
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 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 application and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable 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 applica-
tions, 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 necessary 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 Securi-
ties 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 capaci-
ty 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, respec-
tively, 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 consti-
tutes and appoints Robert A. Wooldridge, Peter B. Tinkham and
Robert J. Reger, Jr., and each of them, as its or her true and
lawful attorneys-in-fact and agents, with full power of substitu-
tion 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 administra-
tors, 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.
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).
<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/ Diane J. Kubin
--------------------------------
Name: Diane J. Kubin
Title: Assistant Secretary
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By: /s/ Walter N. Gitlin
--------------------------------
Name: Walter N. Gitlin
Title: Vice President
THE BANK OF NEW YORK
(DELAWARE), not in its
individual capacity but
solely as Trustee
By: /s/ Walter N. Gitlin
--------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
LAURA ANDERSON, not in her
individual capacity but solely
as Trustee
By: /s/ Laura Anderson
--------------------------------
<PAGE>
CERTIFICATE OF TRUST
OF
TXU CAPITAL III
THIS CERTIFICATE OF TRUST of TXU Capital III (the "Trust"),
dated as of May 21, 1999, 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 formed hereby is
TXU Capital III.
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, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
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, LAURA ANDERSON,
not in its individual not in her individual
capacity but solely as capaticity but solely as
Trustee Trustee
By: /s/ Walter N. Gitlin /s/ Laura Anderson
------------------------ -------------------------
Name: Walter N. Gitlin
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Walter N. Gitlin
---------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
TRUST AGREEMENT
OF TXU CAPITAL IV
This TRUST AGREEMENT of TXU Capital IV (the "Trust"),
dated as of May 21, 1999, 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 Trustees")(each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively,
the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "TXU
Capital IV", 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
------- -- ---
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 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 application and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable 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 applica-
tions, 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 necessary 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 Securi-
ties 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 capaci-
ty 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, respec-
tively, 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 consti-
tutes and appoints Robert A. Wooldridge, Peter B. Tinkham and
Robert J. Reger, Jr., and each of them, as its or her true and
lawful attorneys-in-fact and agents, with full power of substitu-
tion 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 administra-
tors, 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.
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).
<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/ Diane J. Kubin
--------------------------------
Name: Diane J. Kubin
Title: Assistant Secretary
THE BANK OF NEW YORK, not in its
individual capacity but solely
as Trustee
By: /s/ Walter N. Gitlin
--------------------------------
Name: Walter N. Gitlin
Title: Vice President
THE BANK OF NEW YORK
(DELAWARE), not in its
individual capacity but
solely as Trustee
By: /s/ Walter N. Gitlin
--------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
LAURA ANDERSON, not in her
individual capacity but solely
as Trustee
By: /s/ Laura Anderson
--------------------------------
<PAGE>
CERTIFICATE OF TRUST
OF
TXU CAPITAL IV
THIS CERTIFICATE OF TRUST of TXU Capital IV (the "Trust"),
dated as of May 21, 1999, 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 formed hereby is
TXU Capital IV.
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, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
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, LAURA ANDERSON,
not in its individual not in her individual
capacity but solely as capacity but solely as
Trustee Trustee
By: /s/ Walter N. Gitlin /s/ Laura Anderson
------------------------- ------------------------
Name: Walter N. Gitlin
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Walter N. Gitlin
-------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
=================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
between
TEXAS UTILITIES COMPANY, as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
,
-----------------
,
-----------------
,
-----------------
,
-----------------
and
, as Trustees
-------------
Dated as of ,
------ ----
[NAME OF TRUST]
=================================================================
<PAGE>
[NAME OF TRUST]
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
<PAGE>
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
<PAGE>
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
, , 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 ,
----------------- ----------- ---------- ----- --------
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 , 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 ,
-------------- ----
(the "Original Trust Agreement"), and by the execution by the
Property Trustee, the Delaware Trustee and , as
------------
Administrative Trustee and filing with the Secretary of State of
the State of Delaware of the Certificate of Trust, dated
, , a copy of which is attached as Exhibit A; and
----------- ----
WHEREAS, the Trust and the Depositor entered into an
Underwriting Agreement dated , with
------- ---- ----------------
.
---------------- ------- ------------------
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:
<PAGE>
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 $ 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 $ aggregate principal
-----------
amount of the Debenture Issuer's % Junior Subordinated
--
Debentures, Series , issued pursuant to the Subordinated
-
Indenture which will mature on , .
------ ----
"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 $
----
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
.
---------------------
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee with , 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 $ 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 , , between the Depositor and the Debenture Trustee,
------ ----
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 , , among the Trust, the
------- ----
Depositor and the underwriters named therein.
ARTICLE II.
ESTABLISHMENT OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall
be known as "[Name of Trust]", 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 , , 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 $ .
-----------
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, . 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 $ or integral multiples
-----
thereof) of the Liquidation Amount of Preferred Trust Securities
of a denomination larger than $ . 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
$ 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 , 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 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 $ 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.
(a)
(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, 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, the Indenture (For Unsecured Subordinated Debt
Securities relating to Trust Securities), dated as of December 1,
1998 of the Company to The Bank of New York, as trustee, the
Guarantee Agreement, dated as of December 30, 1998 between the
Company, as guarantor and The Bank of New York, as trustee, and
the Amended and Restated Trust Agreement, dated as of December
30, 1998 between the Company, as depositor, The Bank of New York,
The Bank of New York (Delaware), Laura Anderson, Kirk R. Oliver,
Jackie Harrison, Kevin Lloyd and Jay Rhodes, as trustees and the
several holders referred to therein, 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
---------
15, and shall be transmitted no later than 1 of each
--------
year, commencing 1, .
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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 a majority of the Administrative Trustees and the
Depositor, without the consent of any Securityholders or the
other Trustees, (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 (ii) to change the name of the
Trust; or (iii) 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 [Name of Trust]". 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
<PAGE>
--------------------------
solely in his (her) capacity
as Administrative Trustee
--------------------------
solely in his (her) capacity
as Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
[NAME OF TRUST]
THIS CERTIFICATE OF TRUST of [Name of Trust] (the
"Trust"), dated as of , , 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 [Name of Trust].
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), ----------------------
, not in her individual
------------------------- capacity but solely as
not in its individual capacity Trustee
but solely as Trustee
By:/s/ By:/s/
------------------------ -------------------
Name:
---------------------
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:/s/
----------------------------
Name:
-------------------------
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
[Name of Trust]
Common Trust Securities
(liquidation amount $ per Common Trust Security)
-----
[Name of Trust], 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 $ 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 ,
------
, 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 , .
--- ---- ----
[Name of Trust]
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 , between Texas
------ ----
Utilities Company, a Texas corporation ("TUC"), and [Name of
Trust], 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 Trust
--
Preferred Capital 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 , 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:
[Name of Trust]
c/o , 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:
[NAME OF TRUST]
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
[Name of Trust]
% Cumulative Trust Preferred Capital Securities
--
(liquidation amount $ per Preferred Trust Security)
-----
[Name of Trust], 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 [Name of Trust] % Cumulative
---
Trust Preferred Capital Securities (liquidation amount $ 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 , , 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 , , as the same may be amended from
------ -----
time to time, (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:
[NAME OF TRUST]
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)
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 series to be issued under
-----
the Indenture shall be designated " % Junior
-----
Subordinated Debentures, Series " (the "Debentures of
_
the Series"). The Debentures of the
----- ------
Series are to be issued to The Bank of New York, as
Property Trustee (the "Property Trustee") of [Name of
Trust], 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 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 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 Series shall bear interest
-----
from, and including, [ ] [the date of original
---------
issuance], at the rate of % per annum, payable
----
quarterly in arrears on , , and
------ ------ ----------
of each year (each, an "Interest Payment Date")
------
commencing , . With respect to the
-------- ----
Debentures of the 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 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 such period. Interest
on the Debentures of the Series will accrue from,
------
and including, [ ] [the date of original
--------
issuance], but if interest has been paid on such
Debentures of the 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
Series shall be payable to the Person in whose
-----
name such Debenture of the Series is registered
-----
in the Securities Register 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 Series;
-----
provided, however, that if the Debentures of the
-----
Series are held by a securities depositary in a book-
entry only form, the Regular Record Date will be one
Business Day preceding the corresponding Interest
Payment Date; and provided, further, 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 Series not
-----
punctually paid or duly provided for shall forthwith
cease to be payable to the Holders of such Debentures
of the Series on such Regular Record Date, and
-----
may be paid to the Persons in whose name the Debentures
of the 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 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 Debentures of the
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 Series shall be payable at, and
-----
registration and registration of transfers and
exchanges in respect of the Debentures of the
-----
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 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 Series;
-----
7. The Debentures of the 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 (as defined below) 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 Series to the holders of the
-----
Preferred Trust Securities issued by the Trust (the
"Preferred Trust 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 Series are not held
-----
by the Trust, then the Company shall have the right to
redeem the Debentures of the 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 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 of
the Series, (ii) interest payable by the Company
-----
on the Debentures of the 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 Series are
-----
Outstanding, the failure of the Company to pay interest
on any Debentures of the 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 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
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 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 Series. Any Extension Period
-----
with respect to payment of interest on the Debentures
of the Series, or any extended interest payment
-----
period in respect of similar securities will apply to
the Debentures of the Series and all such
-----
securities and will also apply to distributions with
respect to the Preferred Trust Securities and all other
securities with terms substantially the same as the
Preferred Trust 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 Trust 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
Series to be distributed to the holders of the
-----
Preferred Trust 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 Series, the Debentures of the 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
-----
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. If the Company shall make any deposit of money and/or
Government Obligations with respect to any Debentures
of the 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
-----
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 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 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;
15. The obligations of the Company under the Debentures of
the 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 Debentures of the Series.
-----
In the event that such Subsidiary assumes the
obligations under the Debentures of the Series,
-----
the Company will unconditionally guarantee payment of
the Debentures of the 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
Debentures of the Series and under the Indenture,
-----
including, without limitation, payment, as and when
due, of the principal of, premium, if any, and interest
on, the Debentures of the 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.
If the Company assigns its obligations under the
Debentures of the First Series to a Subsidiary, the
guarantee will provide that if there is an Event of
Default and the Holders are prevented by applicable law
from exercising their rights to accelerate the maturity
of the Debentures of the First Series, to collect
interest on the Debentures of the First Series, or to
enforce any other right or remedy with respect to the
Debentures of the First Series, the Company will pay,
upon demand, the amount that would otherwise have been
due and payable had the exercise of such rights and
remedies been permissible.
16. The Trustee, the Security Registrar and the Company
will have no responsibility under the Indenture for
transfers of beneficial interests in the Debentures of
the Series;
-----
17. The Debentures of the 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;
18. The undersigned has read all of the covenants and
conditions contained in the Indenture and the
definitions in the Indenture relating thereto, relating
to the issuance of the Debentures of the Series
-----
and in respect of compliance with which this
certificate is made;
19. 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;
20. 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;
21. 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 $ aggregate principal amount of the
-----------
Debentures of the Series requested in the
-----
accompanying Company Order have been complied
-----
with.
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this day of , .
----- -------- ----
------------------------------
[Kirk R. Oliver
Treasurer]
<PAGE>
NO.
------------------
CUSIP NO.
------------
EXHIBIT A
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
TEXAS UTILITIES COMPANY
% JUNIOR SUBORDINATED DEBENTURES, SERIES
----- -
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 , , and 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 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 such period. 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; provided, however, that if
the Securities of this series are held by a securities depositary
in a book-entry only form, the Regular Record Date will be one
Business Day preceding the corresponding 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 , (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 , , 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 (as defined below) 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 Trust Securities of the Trust
(the "Preferred Trust 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 [Name of Trust], 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 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 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 Trust Securities and all other
securities with terms substantially the same as the Preferred
Trust 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 $ 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.
<PAGE>
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.
Under the guarantee, the Company will also not be able to make
Restricted Payments during any Extension Period with respect to
the Securities of this series. Other than the limitation on the
Restricted 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.
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 [Name of
Trust], 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 Trust Preferred Capital
--
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 December 1, 1998, 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, 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, the
Indenture (For Unsecured Subordinated Debt Securities relating to
Trust Securities), dated as of December 1, 1998 of the Company to
The Bank of New York, as trustee, the Guarantee Agreement, dated
as of December 30, 1998 between the Company, as guarantor and The
Bank of New York, as trustee, and the Amended and Restated Trust
Agreement, dated as of December 30, 1998 between the Company, as
depositor, The Bank of New York, The Bank of New York (Delaware),
Laura Anderson, Kirk R. Oliver, Jackie Harrison, Kevin Lloyd and
Jay Rhodes, as trustees and the several holders referred to
therein, 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
ECTION 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:
[Name of Trust]
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:
Title:
WORSHAM, FORSYTHE & WOOLDRIDGE, L.L.P
ENERGY PLAZA
1601 BRYAN STREET
DALLAS, TEXAS 75201
Exhibit 5(a)
May 24, 1999
Texas Utilities Company,
doing business as TXU Corp
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, doing business as TXU Corp (Company), and TXU
Capital II, TXU Capital III and TXU Capital IV (Trusts) 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 $510,000,000, including (a) unsecured debt
securities (Debt Securities) of the Company to be issued pursuant
to the terms of one or more indentures (each a Debt Securities
Indenture); (b) shares of one or more series of the Company's
preference stock, $25 par value per share (Preference Stock); and
(c) preferred trust securities (Preferred Trust Securities) of
one or more of the Trusts; (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 one or more of the
Trusts with the proceeds of the sale of 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 establish 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 Preference
Stock, at the time it is issued, legally issued, fully paid and
non-assessable will have been taken when:
a. The Board of Directors of the Company, or a duly
authorized committee thereof, shall have taken such action as may
be necessary to establish the relative rights and preferences of
the Preference Stock, as set forth in or contemplated by the
Registration Statement, the exhibits thereto and any prospectus
supplement relating to the Preference Stock, and to authorize
such other action as may be necessary to the consummation of the
issuance and sale of the Preference Stock;
b. A statement with respect to the resolutions
establishing the Preference Stock shall have been filed with the
Secretary of State of Texas in the form and manner required by
law; and
c. The Preference Stock shall have been appropriately
issued and delivered for the consideration contemplated by, and
otherwise in conformity with, the acts, proceedings and documents
referred to above.
4. 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 establish the terms of the Guarantee and the
Guarantee shall have been duly executed and delivered by the
parties thereto.
5. 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 establish 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 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 contained, or 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)
May 24, 1999
Texas Utilities Company,
doing business as TXU Corp
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, doing business as TXU Corp (Company), and TXU
Capital II, TXU Capital III and TXU Capital IV (Trusts) 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 $510,000,000, including (a) unsecured debt
securities (Debt Securities) of the Company to be issued pursuant
to the terms of one or more indentures (each a Debt Securities
Indenture); (b) shares of one or more series of the Company's
preference stock, $25 par value per share (Preference Stock); and
(c) preferred trust securities (Preferred Trust Securities) of
one or more of the Trusts; (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 one or more of the
Trusts with the proceeds of the sale of 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 establish 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 Preference
Stock, at the time it is issued, legally issued, fully paid and
non-assessable will have been taken when:
a. The Board of Directors of the Company, or a duly
authorized committee thereof, shall have taken such action as may
be necessary to establish the relative rights and preferences of
the Preference Stock, as set forth in or contemplated by the
Registration Statement, the exhibits thereto and any prospectus
supplement relating to the Preference Stock, and to authorize
such other action as may be necessary to the consummation of the
issuance and sale of the Preference Stock;
b. A statement with respect to the resolutions
establishing the Preference Stock shall have been filed with the
Secretary of State of Texas in the form and manner required by
law; and
c. The Preference Stock shall have been appropriately
issued and delivered for the consideration contemplated by, and
otherwise in conformity with, the acts, proceedings and documents
referred to above.
4. 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 establish the terms of the Guarantee and the
Guarantee shall have been duly executed and delivered by the
parties thereto.
5. 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 establish 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, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
May 24, 1999
TXU Capital II
c/o Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Re: TXU Capital II
--------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Texas
Utilities Company, a Texas corporation (the "Company"), and TXU
Capital II, 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 May
21, 1999 (the "Certificate"), as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of
State") on May 21, 1999;
(b) The Trust Agreement of the Trust, dated as of May 21,
1999, 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, the Trust
and others with the Securities and Exchange Commission on or
about May 24, 1999;
(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 May
24, 1999, 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.
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
May 24, 1999
TXU Capital III
c/o Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Re: TXU Capital III
---------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Texas
Utilities Company, a Texas corporation (the "Company"), and TXU
Capital III, 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 May
21, 1999 (the "Certificate"), as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of
State") on May 21, 1999;
(b) The Trust Agreement of the Trust, dated as of May 21,
1999, 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, the Trust
and others with the Securities and Exchange Commission on or
about May 24, 1999;
(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 May
24, 1999, 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 2entitled 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.
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
May 24, 1999
TXU Capital IV
c/o Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Re: TXU Capital IV
--------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Texas
Utilities Company, a Texas corporation (the "Company"), and TXU
Capital IV, 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 May
21, 1999 (the "Certificate"), as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of
State") on May 21, 1999;
(b) The Trust Agreement of the Trust, dated as of May 21,
1999, 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, the Trust
and others with the Securities and Exchange Commission on or
about May 24, 1999;
(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 May
24, 1999, 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.
EXHIBIT 15
Texas Utilities Company:
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
condensed consolidated interim financial information of Texas
Utilities Company (the "Company"), except TXU Eastern Holdings Limited,
for the periods ended March 31, 1999 and 1998, as indicated in our report
dated May 13, 1999; because we did not perform an audit, we expressed no
opinion on that information.
We are aware that our report referred to above, which was included in the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999,
is being incorporated by reference in this Registration Statement.
We also are aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is 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
May 24, 1999
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 March 5, 1999,
appearing in the Texas Utilities Company Annual Report on Form 10-K for the
year ended December 31, 1998 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
May 24, 1999
Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated 3 March
1999 relating to the financial statements of TXU Eastern Holdings
Limited, a wholly owned subsidiary of Texas Utilities Company,
which appears on page A-26 of Texas Utilities Company's Annual
Report on Form 10-K for the year ended December 31, 1998. We
also consent to the reference to us under the heading "Experts
and Legality" in such Registration Statement.
/s/ PricewaterhouseCoopers
PricewaterhouseCoopers
London, England
May 21, 1999
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 75-2669310
(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)
-----------------
DEBT SECURITIES*
(Title of the indenture securities)
- ------------
*Specific title(s) to be determined in connection with issuance(s) of 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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
---------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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........................................ $ 4,508,742
Interest-bearing balances...................................... 4,425,071
Securities:
Held-to-maturity securities..................................... 836,304
Available-for-sale securities................................... 4,047,851
Federal funds sold and Securities
purchased under agreements to resell......................... 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 39,349,679
LESS: Allowance for loan and
lease losses...................................... 603,025
LESS: Allocated transfer risk
reserve........................................ 15,906
Loans and leases, net of unearned
income, allowance, and reserve............................... 38,730,748
Trading Assets.................................................... 1,571,372
Premises and fixed assets (including
capitalized leases)............................................. 685,674
Other real estate owned........................................... 10,331
Investments in unconsolidated subsid-
iaries and associated companies................................. 182,449
Customers' liability to this bank on
acceptances outstanding....................................... 1,184,822
Intangible assets................................................. 1,129,636
Other assets...................................................... 2,632,309
-----------
Total assets...................................................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices............................................. $25,731,036
Noninterest-bearing................................ 10,252,589
Interest-bearing................................... 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................ 18,756,302
Noninterest-bearing................................ 111,386
Interest-bearing................................... 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase ............................. 3,276,362
Demand notes issued to the U.S.
Treasury........................................................ 230,671
Trading liabilities............................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less..................... 1,154,502
With remaining maturity of more than
one year through three years ................................ 465
With remaining maturity of more than
three years.................................................. 31,080
Bank's liability on acceptances
executed and outstanding...................................... 1,185,364
Subordinated notes and debentures................................. 1,308,000
Other liabilities................................................. 2,743,590
----------
Total liabilities................................................. 55,971,865
----------
EQUITY CAPITAL
Common stock..................................................... 1,135,284
Surplus.......................................................... 764,443
Undivided profits and capital
reserves....................................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities............................... 44,106
Cumulative foreign currency
translation adjustments......................................... (34,817)
---------
Total equity capital............................................. 5,716,713
---------
Total liabilities and equity capital............................. $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
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 75-2669310
(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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
---------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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........................................ $ 4,508,742
Interest-bearing balances...................................... 4,425,071
Securities:
Held-to-maturity securities..................................... 836,304
Available-for-sale securities................................... 4,047,851
Federal funds sold and Securities
purchased under agreements to resell......................... 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 39,349,679
LESS: Allowance for loan and
lease losses...................................... 603,025
LESS: Allocated transfer risk
reserve........................................ 15,906
Loans and leases, net of unearned
income, allowance, and reserve............................... 38,730,748
Trading Assets.................................................... 1,571,372
Premises and fixed assets (including
capitalized leases)............................................. 685,674
Other real estate owned........................................... 10,331
Investments in unconsolidated subsid-
iaries and associated companies................................. 182,449
Customers' liability to this bank on
acceptances outstanding....................................... 1,184,822
Intangible assets................................................. 1,129,636
Other assets...................................................... 2,632,309
-----------
Total assets...................................................... $61,688,578
============
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
- -----------
Deposits:
In domestic offices.......................................... $25,731,036
Noninterest-bearing............................. 10,252,589
Interest-bearing................................ 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................. 18,756,302
Noninterest-bearing............................. 111,386
Interest-bearing................................ 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase .......................... 3,276,362
Demand notes issued to the U.S.
Treasury..................................................... 230,671
Trading liabilities............................................ 1,554,493
Other borrowed money:
With remaining maturity of one year or less.................. 1,154,502
With remaining maturity of more than
one year through three years ............................. 465
With remaining maturity of more than
three years............................................... 31,080
Bank's liability on acceptances
executed and outstanding................................... 1,185,364
Subordinated notes and debentures.............................. 1,308,000
Other liabilities.............................................. 2,743,590
----------
Total liabilities.............................................. 55,971,865
----------
EQUITY CAPITAL
- --------------
Common stock................................................... 1,135,284
Surplus........................................................ 764,443
Undivided profits and capital
reserves..................................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities............................. 44,106
Cumulative foreign currency
translation adjustments...................................... (34,817)
Total equity capital........................................... 5,716,713
Total liabilities and equity capital........................... $61,688,578
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
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 II
(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 II PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- -------------
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital II Preferred 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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
---------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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........................................ $ 4,508,742
Interest-bearing balances...................................... 4,425,071
Securities:
Held-to-maturity securities..................................... 836,304
Available-for-sale securities................................... 4,047,851
Federal funds sold and Securities
purchased under agreements to resell......................... 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................ 39,349,679
LESS: Allowance for loan and
lease losses...................................... 603,025
LESS: Allocated transfer risk
reserve........................................ 15,906
Loans and leases, net of unearned
income, allowance, and reserve............................... 38,730,748
Trading Assets.................................................... 1,571,372
Premises and fixed assets (including
capitalized leases)............................................. 685,674
Other real estate owned........................................... 10,331
Investments in unconsolidated subsid-
iaries and associated companies................................. 182,449
Customers' liability to this bank on
acceptances outstanding....................................... 1,184,822
Intangible assets................................................. 1,129,636
Other assets...................................................... 2,632,309
-----------
Total assets...................................................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices.............................................. $25,731,036
Noninterest-bearing................................. 10,252,589
Interest-bearing.................................... 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................. 18,756,302
Noninterest-bearing................................. 111,386
Interest-bearing.................................... 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase .............................. 3,276,362
Demand notes issued to the U.S.
Treasury......................................................... 230,671
Trading liabilities................................................ 1,554,493
Other borrowed money:
With remaining maturity of one year or less...................... 1,154,502
With remaining maturity of more than
one year through three years ................................. 465
With remaining maturity of more than
three years................................................... 31,080
Bank's liability on acceptances
executed and outstanding....................................... 1,185,364
Subordinated notes and debentures.................................. 1,308,000
Other liabilities.................................................. 2,743,590
----------
Total liabilities.................................................. 55,971,865
==========
EQUITY CAPITAL
Common stock....................................................... 1,135,284
Surplus............................................................ 764,443
Undivided profits and capital
reserves......................................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities................................. 44,106
Cumulative foreign currency
translation adjustments........................................... (34,817)
Total equity capital............................................... 5,716,713
------------
Total liabilities and equity capital............................... $61,688,578
============
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
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 75-2669310
(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 II PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- ----------------
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital II Preferred 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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
-------------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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....................................... $ 4,508,742
Interest-bearing balances..................................... 4,425,071
Securities:
Held-to-maturity securities.................................... 836,304
Available-for-sale securities.................................. 4,047,851
Federal funds sold and Securities
purchased under agreements to resell........................ 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income........................................... 39,349,679
LESS: Allowance for loan and
lease losses..................................... 603,025
LESS: Allocated transfer risk
reserve....................................... 15,906
Loans and leases, net of unearned
income, allowance, and reserve.............................. 38,730,748
Trading Assets................................................... 1,571,372
Premises and fixed assets (including
capitalized leases)............................................ 685,674
Other real estate owned.......................................... 10,331
Investments in unconsolidated subsid-
iaries and associated companies................................ 182,449
Customers' liability to this bank on
acceptances outstanding...................................... 1,184,822
Intangible assets................................................ 1,129,636
Other assets..................................................... 2,632,309
-----------
Total assets..................................................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices......................................... $25,731,036
Noninterest-bearing............................ 10,252,589
Interest-bearing............................... 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing............................ 111,386
Interest-bearing............................... 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase ......................... 3,276,362
Demand notes issued to the U.S.
Treasury.................................................... 230,671
Trading liabilities........................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less................. 1,154,502
With remaining maturity of more than
one year through three years ............................ 465
With remaining maturity of more than
three years.............................................. 31,080
Bank's liability on acceptances
executed and outstanding.................................. 1,185,364
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,743,590
----------
Total liabilities............................................. 55,971,865
----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital
reserves.................................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities............................ 44,106
Cumulative foreign currency
translation adjustments...................................... (34,817)
-----------
Total equity capital.......................................... 5,716,713
-----------
Total liabilities and equity capital.......................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
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 III
(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 III PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- ------------------
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital III Preferred 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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
--------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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.......................................... $ 4,508,742
Interest-bearing balances........................................ 4,425,071
Securities:
Held-to-maturity securities....................................... 836,304
Available-for-sale securities..................................... 4,047,851
Federal funds sold and Securities
purchased under agreements to resell........................... 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income.............................................. 39,349,679
LESS: Allowance for loan and
lease losses........................................ 603,025
LESS: Allocated transfer risk
reserve........................................... 15,906
Loans and leases, net of unearned
income, allowance, and reserve................................. 38,730,748
Trading Assets...................................................... 1,571,372
Premises and fixed assets (including
capitalized leases)............................................... 685,674
Other real estate owned............................................. 10,331
Investments in unconsolidated subsid-
iaries and associated companies................................... 182,449
Customers' liability to this bank on
acceptances outstanding......................................... 1,184,822
Intangible assets................................................... 1,129,636
Other assets........................................................ 2,632,309
-----------
Total assets........................................................ $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices.............................................. $25,731,036
Noninterest-bearing................................. 10,252,589
Interest-bearing.................................... 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................. 18,756,302
Noninterest-bearing................................. 111,386
Interest-bearing.................................... 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase .............................. 3,276,362
Demand notes issued to the U.S.
Treasury......................................................... 230,671
Trading liabilities................................................ 1,554,493
Other borrowed money:
With remaining maturity of one year or less...................... 1,154,502
With remaining maturity of more than
one year through three years ................................. 465
With remaining maturity of more than
three years................................................... 31,080
Bank's liability on acceptances
executed and outstanding....................................... 1,185,364
Subordinated notes and debentures.................................. 1,308,000
Other liabilities.................................................. 2,743,590
----------
Total liabilities.................................................. 55,971,865
----------
EQUITY CAPITAL
Common stock....................................................... 1,135,284
Surplus............................................................ 764,443
Undivided profits and capital
reserves......................................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities................................. 44,106
Cumulative foreign currency
translation adjustments........................................... (34,817)
Total equity capital............................................... 5,716,713
-----------
Total liabilities and equity capital............................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
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 75-2669310
(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 III PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- ---------------
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital III Preferred 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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
----------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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......................................... $ 4,508,742
Interest-bearing balances....................................... 4,425,071
Securities:
Held-to-maturity securities..................................... 836,304
Available-for-sale securities................................... 4,047,851
Federal funds sold and Securities
purchased under agreements to resell.......................... 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................. 39,349,679
LESS: Allowance for loan and
lease losses....................................... 603,025
LESS: Allocated transfer risk
reserve............................................ 15,906
Loans and leases, net of unearned
income, allowance, and reserve................................ 38,730,748
Trading Assets.................................................... 1,571,372
Premises and fixed assets (including
capitalized leases)............................................. 685,674
Other real estate owned........................................... 10,331
Investments in unconsolidated subsid-
iaries and associated companies................................. 182,449
Customers' liability to this bank on
acceptances outstanding......................................... 1,184,822
Intangible assets................................................. 1,129,636
Other assets...................................................... 2,632,309
-----------
Total assets...................................................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices.............................................. $25,731,036
Noninterest-bearing................................. 10,252,589
Interest-bearing.................................... 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................. 18,756,302
Noninterest-bearing................................. 111,386
Interest-bearing.................................... 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase ............................. 3,276,362
Demand notes issued to the U.S.
Treasury......................................................... 230,671
Trading liabilities................................................ 1,554,493
Other borrowed money:
With remaining maturity of one year or less...................... 1,154,502
With remaining maturity of more than
one year through three years .................................. 465
With remaining maturity of more than
three years.................................................. 31,080
Bank's liability on acceptances
executed and outstanding......................................... 1,185,364
Subordinated notes and debentures.................................. 1,308,000
Other liabilities.................................................. 2,743,590
-----------
Total liabilities.................................................. 55,971,865
-----------
EQUITY CAPITAL
Common stock....................................................... 1,135,284
Surplus............................................................ 764,443
Undivided profits and capital
reserves......................................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities................................. 44,106
Cumulative foreign currency
translation adjustments.......................................... (34,817)
Total equity capital............................................... 5,716,713
-----------
Total liabilities and equity capital............................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
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 IV
(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 IV Preferred Trust Securities*
(Title of the indenture securities)
- --------------
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital IV Preferred 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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
---------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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....................................... $ 4,508,742
Interest-bearing balances..................................... 4,425,071
Securities:
Held-to-maturity securities................................... 836,304
Available-for-sale securities................................. 4,047,851
Federal funds sold and Securities
purchased under agreements to resell........................ 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income........................................... 39,349,679
LESS: Allowance for loan and
lease losses..................................... 603,025
LESS: Allocated transfer risk
reserve.......................................... 15,906
Loans and leases, net of unearned
income, allowance, and reserve.............................. 38,730,748
Trading Assets.................................................. 1,571,372
Premises and fixed assets (including
capitalized leases)........................................... 685,674
Other real estate owned......................................... 10,331
Investments in unconsolidated subsid-
iaries and associated companies............................... 182,449
Customers' liability to this bank on
acceptances outstanding....................................... 1,184,822
Intangible assets............................................... 1,129,636
Other assets.................................................... 2,632,309
-----------
Total assets.................................................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices............................................. $25,731,036
Noninterest-bearing................................ 10,252,589
Interest-bearing................................... 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................ 18,756,302
Noninterest-bearing................................ 111,386
Interest-bearing................................... 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase ............................ 3,276,362
Demand notes issued to the U.S.
Treasury........................................................ 230,671
Trading liabilities............................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less..................... 1,154,502
With remaining maturity of more than
one year through three years ................................. 465
With remaining maturity of more than
three years................................................. 31,080
Bank's liability on acceptances
executed and outstanding........................................ 1,185,364
Subordinated notes and debentures................................. 1,308,000
Other liabilities................................................. 2,743,590
----------
Total liabilities................................................. 55,971,865
----------
EQUITY CAPITAL
Common stock...................................................... 1,135,284
Surplus........................................................... 764,443
Undivided profits and capital
reserves........................................................ 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities................................ 44,106
Cumulative foreign currency
translation adjustments......................................... (34,817)
-----------
Total equity capital.............................................. 5,716,713
-----------
Total liabilities and equity capital.............................. $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
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 75-2669310
(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 IV PREFERRED TRUST SECURITIES*
(Title of the indenture securities)
- -------------
*Specific title(s) to be determined in connection with issuance(s) of TXU
Capital IV Preferred 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 17 C.F.R.
ss.229.10(d).
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 21st day of May, 1999.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1999, 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......................................... $ 4,508,742
Interest-bearing balances....................................... 4,425,071
Securities:
Held-to-maturity securities..................................... 836,304
Available-for-sale securities................................... 4,047,851
Federal funds sold and Securities
purchased under agreements to resell.......................... 1,743,269
Loans and lease financing
receivables:
Loans and leases, net of unearned
income............................................. 39,349,679
LESS: Allowance for loan and
lease losses....................................... 603,025
LESS: Allocated transfer risk
reserve............................................ 15,906
Loans and leases, net of unearned
income, allowance, and reserve................................ 38,730,748
Trading Assets.................................................... 1,571,372
Premises and fixed assets (including
capitalized leases)............................................. 685,674
Other real estate owned........................................... 10,331
Investments in unconsolidated subsid-
iaries and associated companies................................. 182,449
Customers' liability to this bank on
acceptances outstanding......................................... 1,184,822
Intangible assets................................................. 1,129,636
Other assets...................................................... 2,632,309
-----------
Total assets...................................................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
Deposits:
In domestic offices.............................................. $25,731,036
Noninterest-bearing................................. 10,252,589
Interest-bearing.................................... 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs................................. 18,756,302
Noninterest-bearing................................. 111,386
Interest-bearing.................................... 18,644,916
Federal funds purchased and Securities
sold under agreements to repurchase ............................. 3,276,362
Demand notes issued to the U.S.
Treasury......................................................... 230,671
Trading liabilities................................................ 1,554,493
Other borrowed money:
With remaining maturity of one year or less...................... 1,154,502
With remaining maturity of more than
one year through three years .................................. 465
With remaining maturity of more than
three years.................................................. 31,080
Bank's liability on acceptances
executed and outstanding......................................... 1,185,364
Subordinated notes and debentures.................................. 1,308,000
Other liabilities.................................................. 2,743,590
-----------
Total liabilities.................................................. 55,971,865
-----------
EQUITY CAPITAL
Common stock....................................................... 1,135,284
Surplus............................................................ 764,443
Undivided profits and capital
reserves......................................................... 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities................................. 44,106
Cumulative foreign currency
translation adjustments.......................................... (34,817)
-----------
Total equity capital............................................... 5,716,713
-----------
Total liabilities and equity capital............................... $61,688,578
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
