REGISTRATION RIGHTS AGREEMENT
Dated May 13, 1999
among
TXU EASTERN FUNDING COMPANY,
TXU EASTERN HOLDINGS LIMITED
and
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
ABN AMRO INCORPORATED
BNY CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX XXXXX XXXXXX INC. and
WARBURG DILLON READ LLC
________________
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of May 13, 1999 among TXU EASTERN
FUNDING COMPANY ("TXU Funding") and TXU EASTERN HOLDINGS LIMITED
("TXU Holdings") and XXXXXX BROTHERS INC. , XXXXXX XXXXXXX & CO.
INCORPORATED, ABN AMRO INCORPORATED, BNY CAPITAL MARKETS, INC.,
CHASE SECURITIES INC., CREDIT SUISSE FIRST BOSTON CORPORATION,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, NATIONSBANC
XXXXXXXXXX SECURITIES LLC, XXXXXXX XXXXX XXXXXX INC. and WARBURG
DILLON READ LLC (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase
Agreement dated May 6, 1999 (the "Purchase Agreement"), among TXU
Funding, as issuer, and TXU Holdings, as guarantor, of the 6.15%
Senior Notes due May 15, 2002 ("6.15% Notes"), the 6.45% Senior
Notes due May 15, 2005 ("6.45% Notes") and the 6.75% Senior Notes
due May 15, 2009 ("6.75% Notes", and together with the
6.15% Notes and the 6.45% Notes, the "Notes"), and the Initial
Purchasers, which provides for, among other things, the sale by
TXU Funding to the Initial Purchasers of $350,000,000, principal
amount of the 6.15% Notes, $650,000,000 principal amount of the
6.45% Notes and $500,000,000 principal amount of the 6.75% Notes
and the guarantee of the Notes by TXU Holdings. In order to
induce the Initial Purchasers to enter into the Purchase
Agreement, TXU Holdings and TXU Funding have agreed to provide to
the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions.
-----------
As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in
-------------------
Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last
------
paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth in
-----------------
Section 3(t) hereof.
"Business Day" shall mean a day other than (i) a Saturday or
------------
a Sunday, (ii) a day on which banks in New York, New York are
authorized or obligated by law or executive order to remain
closed or (iii) a day on which the Trustee s principal corporate
trust office is closed for business.
"Closing Date" shall mean the Closing Date as defined in the
------------
Purchase Agreement.
"Depositary" shall mean (i) with respect to Notes and/or
----------
Exchange Notes in bearer form, The Bank of New York, as book-
entry depositary pursuant to the Deposit Agreement between The
Bank of New York and TXU Funding, dated May 13, 1999, or any
other book-entry depositary appointed in accordance with such
Deposit Agreement; and (ii) with respect to Notes and/or Exchange
Notes in registered form, The Depository Trust Company, or any
other depositary appointed by TXU Funding; provided, however,
that such depositary must have an address in the Borough of
Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in
--------------------
Section 2(b) hereof.
"Eligible Holder" shall have the meaning set forth in
---------------
Section 2(a) hereof.
"Exchange Act" shall mean the Securities Exchange Act of
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1934, as amended from time to time.
"Exchange Note Guarantees" shall mean the unconditional
------------------------
guarantees by TXU Holdings of the principal, premium, if any, and
interest on the Exchange Notes when due.
"Exchange Notes" shall mean the 6.15% Exchange Senior Notes
--------------
due May 15, 2002, the 6.45% Exchange Senior Notes due May 15,
2005 and the 6.75% Exchange Senior Notes due May 15,
2009 containing terms identical, to, respectively, the
6.15% Notes, the 6.45% Notes and the 6.75% Notes (except that
they will not contain registration rights or terms with respect
to the transfer restrictions under the Securities Act and will
not provide for any Additional Interest to be payable with
respect thereto). The Exchange Notes will be guaranteed by the
Exchange Note Guarantees.
"Exchange Offer" shall mean the offer by TXU Funding to the
--------------
Holders to exchange the Registrable Securities for a like
principal amount of Exchange Notes pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration
---------------------------
under the Securities Act effected pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean an
-------------------------------------
exchange offer registration statement on Form F-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in
---------------
Section 2(a) hereof.
"Guarantees" shall mean the unconditional guarantees by TXU
----------
Holdings of the principal, premium, if any, and interest on the
Notes when due.
"Holder" shall mean the Initial Purchasers, for so long as
------
they own beneficial interests in any Registrable Securities, and
each of their respective successors, assigns and direct and
indirect transferees who become owners of beneficial interests in
Registrable Securities in bearer form or registered owners of
Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture (for Unsecured Debt
---------
Securities) relating to the Notes and the Exchange Notes dated as
of May 1, 1999 among TXU Funding, as issuer, TXU Holdings, as
guarantor of the Notes and the Exchange Notes, and The Bank of
New York, as Trustee, as the same may be amended from time to
time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
------------------
preamble of this Agreement.
"Inspectors" shall have the meaning set forth in Section
----------
3(n) hereof.
"Issue Date" shall mean the date of original issuance of the
----------
Notes.
"Majority Holders" shall mean the Holders of a majority of
----------------
the aggregate principal amount of outstanding Notes.
"Notes" shall have the meaning set forth in the preamble to
-----
this Agreement.
"Participating Broker-Dealer" shall have the meaning set
---------------------------
forth in Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation,
------
trust or unincorporated organization, limited liability company,
or a government or agency or political subdivision thereof.
"Predecessor Company" shall mean Eastern Group, plc.
-------------------
"Prospectus" shall mean the prospectus included in a
----------
Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-
effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
------------------
preamble of this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
-------
hereof.
"Registrable Securities" shall mean the Notes and the
----------------------
Guarantees; provided, however, that Notes and the Guarantees with
respect to such Notes shall cease to be Registrable Securities
when (i) a Registration Statement with respect to the Exchange
Notes and the Exchange Note Guarantees shall have been declared
effective under the Securities Act and the Notes shall have been
disposed of pursuant to such Registration Statement, (ii) the
Notes shall have been sold to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under
the Securities Act, (iii) the Notes shall have ceased to be
outstanding, (iv) the Notes and the Guarantees shall have been
exchanged for Exchange Notes and the Exchange Note Guarantees
upon consummation of the Exchange Offer and are thereafter freely
tradable by the holder thereof (other than an affiliate of TXU
Funding or TXU Holdings) or (v) two years (or such shorter period
as may hereafter be provided in Rule 144(k) under the Securities
Act (or similar rule)) have elapsed since the date of original
issuances of the Notes.
"Registration Expenses" shall mean any and all expenses
---------------------
incident to performance of or compliance by TXU Funding and TXU
Holdings with this Agreement, including, without limitation: (i)
all SEC or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees; (ii) all fees and expenses
incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue
sky qualification of any of the Exchange Notes or Registrable
Securities) and compliance with the rules of the NASD in an
amount not exceeding $15,000 in the aggregate, (iii) all expenses
of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement,
any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing
any Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing,
printing and distributing any underwriting agreements, securities
sales agreements and other documents relating to the performance
of and compliance with this Agreement, (iv) all rating agency
fees, (v) the fees and disbursements of counsel for TXU Funding
and TXU Holdings, of Winthrop, Stimson, Xxxxxx & Xxxxxxx, as
counsel for the Holders hereunder in connection with the Exchange
Offer, and of the independent certified public accountants of TXU
Funding and TXU Holdings and the predecessor of TXU Holdings,
including the expenses of any "cold comfort" letters required by
or incident to such performance and compliance, (vi) the fees and
expenses of the Trustee, and any paying agent, exchange agent or
custodian, (vii) all fees and expenses incurred in connection
with the listing, if any, of any of the Registrable Securities or
the Exchange Notes on any securities exchange or exchanges and
(viii) the reasonable fees and expenses of any special experts
retained by TXU Funding or TXU Holdings in connection with any
Registration Statement.
"Registration Statement" shall mean any registration
----------------------
statement of TXU Funding and TXU Holdings which covers any of the
Exchange Notes or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Rule 144(k) Period" shall mean the period of two years (or
------------------
such shorter period as may hereafter be provided in Rule 144(k)
under the Securities Act (or similar successor rule)) commencing
on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as
--------------
amended from time to time.
"Shelf Registration" shall mean a registration effected
------------------
pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth
------------------------
in Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set
-----------------------------
forth in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
----------------------------
registration statement of TXU Funding and TXU Holdings pursuant
to the provisions of Section 2(b) hereof which covers all of the
Registrable Securities, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended
---
from time to time.
"Trustee" shall mean The Bank of New York, and any successor
-------
thereto, as trustee under the Indenture.
"TXU Funding" shall have the meaning set forth in the
-----------
preamble to this Agreement and also includes TXU Funding's
successors and permitted assigns.
"TXU Holdings" shall have the meaning set forth in the
------------
preamble to this Agreement and also includes TXU Holdings'
successors and permitted assigns.
2. Registration Under the Securities Act.
-------------------------------------
(a) Exchange Offer.
--------------
To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, TXU Holdings
shall, for the benefit of the Holders, at TXU Holdings cost, (i)
cause to be filed with the SEC an Exchange Offer Registration
Statement on an appropriate form under the Securities Act
covering the Exchange Offer, (ii) use its reasonable best efforts
to cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act by the SEC not later
than the date which is 180 days after the Issue Date, and (iii)
use its reasonable best efforts to keep such Exchange Offer
Registration Statement effective for not less than 30 calendar
days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the Holders. Upon the
effectiveness of the Exchange Offer Registration Statement, TXU
Funding shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder electing
to exchange Registrable Securities for a like principal amount of
Exchange Notes (assuming that such Holder is not an affiliate of
TXU Funding or TXU Holdings within the meaning of Rule 405 under
the Securities Act and is not a broker-dealer tendering
Registrable Securities acquired directly from TXU Funding for its
own account, acquires the Exchange Securities in the ordinary
course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities)
(any Holder meeting all such requirements, hereinafter an
"Eligible Holder"), and to transfer such Exchange Securities from
and after their receipt without any limitations or restrictions
under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, TXU Funding and
TXU Holdings shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and
related documents (together, the "Notice");
(ii) use their reasonable best efforts to keep the
Exchange Offer open for acceptance for a period of not less
than 30 days after the date Notice thereof is mailed to the
Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for
the Exchange Offer;
(iv) permit Holders to withdraw, at any time prior to
the close of business, New York time, on the last Business
Day of the Exchange Period, any Notes tendered for exchange
by sending to the institution specified in the Notice, a
telegram, telex, facsimile transmission or letter, received
before aforesaid time, setting forth the name of such
Holder, the principal amount of Notes delivered for
exchange, and a statement that such Holder is withdrawing
his election to have such Notes exchanged;
(v) notify each Holder by means of the Notice that any
Note not tendered by such Holder in the Exchange Offer will
remain outstanding and continue to accrue interest, but will
not retain any rights under this Agreement (except in the
case of the Initial Purchasers and Participating Broker-
Dealers as provided herein); and
(vi) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer, TXU Funding shall:
(i) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange
Offer;
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Notes or portions thereof so accepted
for exchange by TXU Funding; and
(iii) issue, and cause the Trustee to promptly
authenticate and deliver to the Depositary (or if, the
Exchange Notes are in certificated form, each Holder),
Exchange Notes equal in principal amount to the principal
amount of the Notes surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the
Registered Exchange Offer will accrue from the last date on which
interest was paid on the Note surrendered in exchange therefor
or, if no interest has been paid on such Note, from the Issue
Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, TXU Funding and TXU
Holdings shall use their reasonable best efforts to complete the
Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act
and other applicable laws in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer does not violate applicable law or
any applicable interpretation of the staff of the SEC and that
each Holder tendering Notes for exchange shall be an Eligible
Holder. Each Holder of Registrable Securities who wishes to
exchange such Registrable Securities for Exchange Notes in the
Exchange Offer will be required to make certain customary
representations in connection therewith, including
representations that (i) it is not an affiliate of TXU Funding or
TXU Holdings, (ii) the Exchange Notes to be received by it were
acquired in the ordinary course of its business and (iii) at the
time of the Exchange Offer, it has no arrangement with any person
to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes. Each Holder hereby
acknowledges and agrees that any Participating Broker-Dealer and
any such Holder using the Exchange Offer to participate in a
distribution of the Exchange Notes: (1) could not under SEC
policy as in effect on the date of this Agreement rely on the
position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the SEC's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action
letters (including any no-action letter obtained based on the
representations in clause (i) above), and (2) must comply with
the registration and prospectus delivery requirements of the
Securities Act in connection with the secondary resale
transaction and that such a secondary resale transaction should
be covered by an effective registration statement containing the
selling security holder information required by Item 507 and 508,
as applicable, of Regulation S-K, the SEC standard instructions
for filing forms under the Securities Act, if the resales are of
Exchange Notes obtained by such Holder in exchange for Notes
acquired by such Holder directly from TXU Funding.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Exchange Notes held by
Participating Broker-Dealers, and TXU Funding and TXU Holdings
shall have no further obligation to register the Registrable
Securities (other than pursuant to Section 2(b)(iii)) pursuant to
Section 2(b) of this Agreement.
(b) Shelf Registration.
------------------
In the event that (i) TXU Funding is not permitted to
effect the Exchange Offer because of any change in law or in
currently prevailing interpretations of the staff of the SEC,
(ii) the Exchange Offer Registration Statement is not declared
effective within 180 days of the Issue Date, or (iii) (1) any
Initial Purchaser is not permitted, in the reasonable opinion of
Winthrop, Stimson, Xxxxxx & Xxxxxxx, pursuant to applicable law
or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the
Securities Act and applicable blue sky or state securities laws,
(2) such Initial Purchaser requests registration of Registrable
Securities held by such Initial Purchaser and (3) such Initial
Purchaser's request is received by TXU Holdings no later than the
later of (A) the date of filing of the Exchange Offer
Registration Statement and (B) 120 days following the Issue Date
(any of the events specified in (i) (iii) being a "Shelf
Registration Event" and the date of occurrence thereof, the
"Shelf Registration Event Date"), TXU Holdings shall promptly
deliver to the Holders and the Trustee written notice thereof
and, at its cost, file as promptly as practicable after such
Shelf Registration Event Date, and, in any event, within 45 days
after such Shelf Registration Event Date (which shall be no
earlier than 90 days after the Closing Date) a Shelf Registration
Statement providing for the sale by the Holders of all of the
Registrable Securities, and shall use its reasonable best efforts
to have such Shelf Registration Statement declared effective by
the SEC as soon as practicable; provided, however that if the
Shelf Registration Event is pursuant to clause (iii), TXU Funding
and TXU Holdings may register such Registrable Securities
together with the Exchange Offer Registration Statement, filed
pursuant to Section 2(a), and the requirements as to timing
applicable thereto. No Holder of Registrable Securities shall be
entitled to include any of its Registrable Securities in any
Shelf Registration pursuant to this Agreement unless and until
such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and
furnishes to TXU Holdings in writing, within 15 days after
receipt of a request therefor, such information as TXU Holdings
may, after conferring with counsel with regard to information
relating to Holders that would be required by the SEC to be
included in such Shelf Registration Statement or Prospectus
included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each
Holder as to which any Shelf Registration is being effected
agrees promptly to furnish to TXU Holdings all information with
respect to such Holder necessary to make the information
previously furnished to TXU Holdings by such Holder not
materially misleading.
TXU Funding and TXU Holdings agree to use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective for the Rule 144(k) Period (subject to
extension pursuant to the last paragraph of Section 3 hereof) or
for such shorter period which will terminate when all of the
securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be
Registrable Securities (the "Effectiveness Period"). TXU Funding
and TXU Holdings shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration.
TXU Holdings will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder a reasonable number of
copies of the Prospectus which is a part of the Shelf
Registration Statement and notify each such Holder when the Shelf
Registration has become effective. TXU Funding and TXU Holdings
further agree, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by TXU
Funding and TXU Holdings for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations
thereunder for shelf registrations, and TXU Holdings agrees to
furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or
filed with the SEC.
(c) Expenses.
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TXU Funding and TXU Holdings shall pay all Registration
Expenses in connection with the registration pursuant to Section
2(a) or 2(b) hereof. Except as provided herein, each Holder
shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to
the Shelf Registration Statement.
(d) Effective Registration Statement.
--------------------------------
An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof (or a combination of the two) will not be
deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has
been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the
SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable
Securities pursuant to such Registration Statement may legally
resume. TXU Funding and TXU Holdings will be deemed not to have
used their reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the
requisite period if either voluntarily takes any action that
would result in any such Registration Statement not being
declared effective or in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless such action is
required by applicable law.
(e) Additional Interest.
-------------------
In the event that:
(i) notwithstanding that TXU Funding has consummated
or will consummate an Exchange Offer, TXU Funding and TXU
Holdings are required to file a Shelf Registration Statement
and such Shelf Registration Statement is not filed on or
prior to the date required by Section 2(b) hereof, then
commencing on the day after the applicable required filing
date, additional interest shall accrue on the principal
amount of the Notes ("Additional Interest") at a rate of
.25% per annum; or
(ii) (A) the Exchange Offer Registration Statement is
not declared effective by the SEC on or prior to the 180th
day after the Issue Date or (B) whether or not TXU Funding
has consummated or will consummate an Exchange Offer, TXU
Funding and TXU Holdings are required to file a Shelf
Registration Statement and such Shelf Registration Statement
is not declared effective by the SEC on or prior to the 30th
day after the date such Shelf Registration Statement was
required to be filed, then, commencing on the 181st day
after the Issue Date or the 31st day after the applicable
required filing date, as the case may be, Additional
Interest shall accrue on the principal amount of the Notes
at a rate of .25% per annum; or
(iii) (A) TXU Funding has not exchanged the
Exchange Notes for the Notes validly tendered, in accordance
with the terms of the Exchange Offer, on or prior to the
40th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) the
Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective at
any time prior to the expiration of the Rule 144(k) Period
(other than after such time as all Notes have been disposed
of thereunder or otherwise cease to be Registrable
Securities), then Additional Interest shall accrue on the
principal amount of Notes, at a rate of .25% per annum,
commencing on the 41st day after the date on which the
Exchange Offer Registration Statement was declared effective
or the day such Shelf Registration Statement ceases to be
effective, as the case may be;
provided, however, that the Additional Interest rate on the Notes
may not exceed in the aggregate .25% per annum; provided further,
however, that (1) upon the filing of the Shelf Registration
Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a
Shelf Registration Statement (in the case of clause (ii) above),
(3) upon the exchange of Exchange Notes for all Notes tendered
(in the case of clause (iii)(A) above), or upon the effectiveness
of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iii) (B) above), or (4) upon
the expiration of the Rule 144(k) Period, Additional Interest on
the Notes as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to Section
2(e)(i), (ii) or (iii) above will be payable in cash on the
relevant payment dates for the payment of interest pursuant to
the Indenture.
(f) Specific Enforcement.
--------------------
Without limiting the remedies available to the Holders,
TXU Funding and TXU Holdings acknowledge that any failure of TXU
Funding or TXU Holdings to comply with their obligations under
Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate
remedy at law, that it would not be possible to measure damages
for such injuries precisely and that, in the event of any such
failure, any Holder may obtain such relief as may be required to
specifically enforce the obligations of TXU Funding or TXU
Holdings under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
-----------------------
In connection with the obligations of TXU Funding and
TXU Holdings with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, TXU Funding and TXU Holdings
shall:
(a) prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by Sections
2(a) and 2(b) hereof within (in the case of Section 2(b) hereof)
the relevant time period specified and on the appropriate form(s)
under the Securities Act, which form(s) (i) shall be selected by
TXU Funding and TXU Holdings, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and (iii) shall comply
as to form in all material respects with the requirements of the
applicable form and include all financial statements required by
the SEC to be filed therewith; and use its reasonable best
efforts to cause such Registration Statement(s) to become
effective and remain effective in accordance with Section 2
hereof; provided, however, that if (1) such filing is pursuant to
Section 2(b), or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes, before filing any
Registration Statement or Prospectus or any amendments or
supplements thereto, TXU Funding and TXU Holdings shall furnish
to and afford the Holders of the Registrable Securities and each
such Participating Broker-Dealer, as the case may be, covered by
such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies
of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto)
proposed to be filed. Neither TXU Funding nor TXU Holdings shall
file any Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such
document if the Majority Holders or such Participating Broker-
Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective for
the Effectiveness Period or the Applicable Period, as the case
may be, and cause each Prospectus to be supplemented, if so
determined by TXU Funding or TXU Holdings or requested by the
SEC, by any required prospectus supplement and as so supplemented
to be filed pursuant to Rule 424 (or any similar provision then
in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules
and regulations promulgated thereunder applicable to it with
respect to the disposition of all securities covered by each
Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the
intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advise such Holder that
the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders, (ii)
furnish to each Holder of Registrable Securities included in the
Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities, (iii) consent to
the use of the Prospectus or any amendment or supplement thereto
by each of the selling Holders of Registrable Securities included
in the Shelf Registration Statement in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto and (iv)
furnish to each Holder of Registrable Securities either a summary
of the terms of this Agreement or a copy of this Agreement;
(d) in the case of a Shelf Registration, to register
or qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the time
the applicable Registration Statement is declared effective by
the SEC as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request in
writing in advance of such date of effectiveness; provided,
however, that neither TXU Funding or TXU Holdings shall be
required to (i) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any
general consent to service of process in any jurisdiction where
it would not otherwise be subject to such service of process or
(iii) file annual reports or comply with any other requirements
deemed in its reasonable judgment to be unduly burdensome;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom TXU Funding and TXU
Holdings has received prior written notice that they will be
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Notes and are required to deliver
Prospectuses, promptly notify each Holder of Registrable
Securities, or each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriters, if any, and
promptly confirm such notice in writing (i) when a Registration
Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC
or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the
qualification of the Registrable Securities or the Exchange Notes
to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in paragraph 3(d) hereof or the initiation
of any proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of TXU
Funding or TXU Holdings contained in any purchase agreement,
securities sales agreement or other similar agreement, if any,
cease to be true and correct in all material respects, (v) of the
happening of any event or the failure of any event to occur or
the discovery of any facts or otherwise, during the Effectiveness
Period which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material
respect or which causes such Registration Statement or Prospectus
to omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading and (vi) when TXU Funding or TXU Holdings
reasonably determines that a post-effective amendment to the
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities included within the
coverage of such Shelf Registration Statement, without charge, at
least one conformed copy of each Registration Statement relating
to such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends and in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at
least two Business Days prior to the closing of any sale of
Registrable Securities pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi)
hereof, prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and
notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until TXU
Funding and TXU Holdings have amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be
incorporated by reference into a Registration Statement or a
Prospectus after the initial filing of a Registration Statement,
provide a reasonable number of copies of such document to the
Holders and make such of the representatives of TXU Funding and
TXU Holdings as shall be reasonably requested by the Holders of
Registrable Securities or the Initial Purchasers on behalf of
such Holders available for reasonable discussion of such
document;
(k) obtain a CUSIP number for all Exchange Notes, no
later than the effective date of a Registration Statement, and
provide the Trustee with printed certificates for the Exchange
Notes or the Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary;
(l) cause the Indenture and the Deposit Agreement, if
required by the TIA, to be qualified under the TIA in connection
with the registration of the Exchange Notes or Registrable
Securities, as the case may be, and effect such changes to such
documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and use its
reasonable best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all
other forms and documents required to be filed with the SEC to
enable such documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into
such agreements (including underwriting agreements) as are
customary in underwritten offerings and consistent with the terms
of the Purchase Agreement and take all such other appropriate
actions as are reasonably requested in order to expedite or
facilitate the registration or the disposition of such
Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is with respect to an underwritten offering, if
requested by (x) any Initial Purchaser, in the case where an
Initial Purchaser holds Registrable Securities acquired by it as
part of its initial distribution and (y) other Holders of Notes
covered thereby: (i) make such representations and warranties to
Holders of such Registrable Securities and the underwriters (if
any), with respect to the business of TXU Funding and TXU
Holdings and their subsidiaries as then conducted and the
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters
in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to TXU Funding and TXU
Holdings and updates thereof (which may be in the form of a
reliance letter) in form and substance reasonably satisfactory to
the managing underwriters (if any) and the Holders of a majority
in principal amount of the Registrable Securities being sold,
addressed to each selling Holder and the underwriters (if any)
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such underwriters (it being agreed that
the matters to be covered by such opinions may be subject to
customary qualifications and exceptions); (iii) obtain "cold
comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters (if any)
from the independent certified public accountants of TXU Funding,
TXU Holdings and the Predecessor Company (and, if necessary, any
other independent certified public accountants of any subsidiary
of TXU Funding and TXU Holdings or of any business acquired by
TXU Funding or TXU Holdings for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to each of such underwriters,
such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably
requested by such underwriters in accordance with Statement on
Auditing Standards No. 72 and (iv) if an underwriting agreement
is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount
of Registrable Securities covered by such Registration Statement
and the managing underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section (including,
without limitation, such underwriters and selling Holders). The
above shall be done at each closing under such underwriting
agreement or, as and to the extent required thereunder and as
consistent with the terms of, the Purchase Agreement;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by
any selling Holder of such Registrable Securities being sold, or
each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate documents and properties of TXU Funding and
TXU Holdings and the Predecessor Company and their subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees
of TXU Funding, TXU Holdings and their subsidiaries to supply all
relevant information in each case reasonably requested by any
such Inspector in connection with such Registration Statement;
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of all such parties by
TXU Holdings-designated Holders' counsel, at the expense of such
parties as described in Section 2(c) hereof. Records of TXU
Funding and its subsidiaries or TXU Holdings and the Predecessor
Company and their subsidiaries, which TXU Funding or TXU
Holdings, respectively, determines, in good faith, to be
confidential and any records which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a
material misstatement or omission in such Registration Statement,
provided that TXU Holdings shall be consulted prior to any such
disclosure, (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit
or proceeding or (iii) the information in such Records has been
made available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer
will be required to agree in writing that information obtained by
it or any Inspector retained by it as a result of such
inspections shall be deemed confidential and shall not be used by
it or any Inspector retained by it as the basis for any market
transactions in the securities of TXU Funding or TXU Holdings
unless and until such is made generally available to the public.
Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give
notice to TXU Holdings and allow TXU Holdings at its expense to
undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(o) comply with all applicable rules and regulations
of the SEC so long as any provision of this Agreement shall be
applicable and make generally available to their security holders
earning statements satisfying the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act), with such adjustments as
are necessary to reflect the transactions in August 1998 in
connection with the purchase by Texas Utilities Company of the
predecessors of TXU Holdings, no later than 60 days after the end
of any 12-month period (or 120 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter
of TXU Funding or TXU Holdings, as the case may be, after the
effective date of a Registration Statement, which statements
shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if
requested by the Trustee, obtain an opinion of counsel to TXU
Funding and TXU Holdings addressed to the Trustee for the benefit
of all Holders of Registrable Securities participating in the
Exchange Offer and which includes an opinion that (i) TXU Funding
has duly authorized, executed and delivered the Exchange Notes,
(ii) each of the Exchange Notes constitutes a legal, valid and
binding obligation of TXU Funding, enforceable against TXU
Funding in accordance with its terms (with customary exceptions),
(iii) TXU Holdings has duly authorized, executed and delivered
the Exchange Note Guarantees, (iv) the Exchange Note Guarantees
constitute the legal, valid and binding obligation of TXU
Holdings, enforceable against TXU Holdings in accordance with its
terms (with customary exceptions); and (v) the Indenture has been
duly qualified under the TIA and the Deposit Agreement has been
duly qualified under the TIA, or no such qualification is
required by the TIA;
(q) if an Exchange Offer is to be consummated, upon
delivery of the Registrable Securities by Holders to TXU Funding
(or to such other Person as directed by TXU Funding), in exchange
for the Exchange Notes and the Exchange Note Guarantees, xxxx, or
cause to be marked, on such Registrable Securities delivered by
such Holders that such Registrable Securities are being canceled
in exchange for the Exchange Notes and the Exchange Note
Guarantees, and in no event shall such Registrable Securities be
marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable
Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of such
Registrable Securities covered by a Registration Statement
contemplated hereby;
(s) use its reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated
hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) (a) indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer
Registration Statement that any broker or dealer registered under
the Exchange Act who holds Notes that are Registrable Securities
and that were acquired for its own account as a result of market-
making activities or other trading activities (other than
Registrable Securities acquired directly from TXU Funding) (such
broker or dealer, a "Participating Broker-Dealer"), may exchange
such Notes pursuant to the Exchange Offer; however, such
Participating Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of the Exchange Notes received
by such Participating Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery
by such Participating Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement and (b) include in
such "Plan of Distribution" section all other information with
respect to such resales by Participating Broker-Dealers that the
SEC may require in order to permit such resales pursuant thereto,
but such "Plan of Distribution" shall not name any such
Participating Broker-Dealer or disclose the amount of Exchange
Notes held by any such Participating Broker-Dealer except to the
extent required by the Commission as a result of a change in
policy announced after the date of this Agreement, (ii) furnish
to each Participating Broker-Dealer who has delivered to TXU
Funding and TXU Holdings the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (TXU Funding
and TXU Holdings hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including
all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Notes covered by the Prospectus or any
amendment or supplement thereto), (iii) use its reasonable best
efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained
therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as
such Persons must comply with such requirements under the
Securities Act and applicable rules and regulations in order to
resell the Exchange Notes; provided, however, that such period
shall not be required to exceed 90 days (or such longer period if
extended pursuant to the last sentence of Section 3 hereof) (the
"Applicable Period") and (iv) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer
holding Registrable Securities acquired for its
own account as a result of market-making
activities or other trading activities, it will
deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale
of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange
Offer,"
and (y) a statement to the effect that by a Participating Broker-
Dealer making the acknowledgement described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the Participating Broker-Dealer will not
be deemed to admit that it is an underwriter within the meaning
of the Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if requested
by any such Initial Purchasers or such other representative of
the Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an
opinion of counsel in form and substance reasonably satisfactory
to the Initial Purchasers or such other representative of the
Participating Broker-Dealers, covering the matters customarily
covered in opinions requested in connection with Exchange Offer
Registration Statements and such other matters as may be
reasonably requested (it being agreed that the matters to be
covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officer's certificate
containing certifications substantially similar to those set
forth in certificates delivered pursuant to Section 8 of the
Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and
(iii) as well as upon the effectiveness of the Exchange Offer
Registration Statement, a comfort letter, in each case, in
customary form as permitted by Statement on Auditing Standards
No. 72 and with such variations necessary to reflect the
transactions in August 1998 in connection with the purchase by
Texas Utilities of the predecessors of TXU Holdings. Each of the
foregoing shall be consistent with the terms of the Purchase
Agreement.
TXU Funding and TXU Holdings may require each seller of
Registrable Securities as to which any registration is being
effected to furnish to TXU Funding and TXU Holdings such
information regarding such seller as may be required by the Staff
of the SEC to be included in a Registration Statement. TXU
Funding and TXU Holdings may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving
such request. Neither TXU Funding nor TXU Holdings shall have
any obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish such
information.
In the case of (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers who have notified TXU Funding
and TXU Holdings that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell Exchange
Notes and are required to deliver Prospectuses, each Holder
agrees that, upon receipt of any notice from TXU Funding or TXU
Holdings of the happening of any event of the kind described in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(i) hereof or until it is
advised in writing (the "Advice") by TXU Funding or TXU Holdings
that the use of the applicable Prospectus may be resumed, and, if
so directed by TXU Funding or TXU Holdings, such Holder will
deliver to TXU Funding (at TXU Holding's expense) all copies in
such Holder's possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Notes, as the case may be,
current at the time of receipt of such notice. If TXU Funding or
TXU Holdings shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Notes, as the
case may be, pursuant to a Registration Statement, TXU Funding
and TXU Holdings shall file and use its best efforts to have
declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Registration Statement and shall
extend the period during which such Registration Statement shall
be maintained effective pursuant to this Agreement by the number
of days in the period from and including the date of the giving
of such notice to and including the date when TXU Funding and TXU
Holdings shall have made available to the Holders (x) copies of
the supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
4. Indemnification.
---------------
(a) In connection with any Registration Statement, TXU
Funding and TXU Holdings shall indemnify and hold harmless each
Initial Purchaser, each Holder, each underwriter who participates
in an offering of the Registrable Securities, each Participating
Broker-Dealer, and each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (each an "Indemnified Party") 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 Indemnified Party 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 any preliminary prospectus or
Prospectus, or in a Registration Statement, 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 4 as to any Indemnified Party shall not
apply to any such losses, claims, damages, liabilities, expenses
or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in
reliance upon and in conformity with information furnished in
writing to TXU Funding or TXU Holdings by such Indemnified Party
for use in connection with the preparation of the Registration
Statement or the related Prospectus or any amendment or
supplement to either thereof, or arising out of, or based upon,
statements in or omissions from the part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification of the Trustee under the TIA; and provided further,
that the indemnity agreement contained in this Section 4 with
respect to the related Prospectus or any amendment or supplement
thereto, (if TXU Funding and TXU Holdings shall have furnished
any amendment or supplement thereto) shall not inure to the
benefit of any Indemnified Party on account of any such losses,
claims, damages, liabilities, expenses or actions arising from
the sale of Registrable Securities to any person if a copy of the
related Prospectus (exclusive of any documents incorporated by
reference) shall not have been given or sent to such person by or
on behalf of such Indemnified Party with or prior to the written
confirmation of the sale involved unless, with respect to the
delivery of any amendment or supplement to the Prospectus, the
alleged omission or alleged untrue statement was not corrected in
such amendment or supplement at the time of such written
confirmation. The indemnity agreement of TXU Funding and TXU
Holdings contained in this Section 4 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
Indemnified Party, and shall survive the registration of the
Registrable Securities.
(b) Each Holder shall indemnify, defend and hold
harmless TXU Funding and TXU Holdings and any underwriter and
other selling Holder, and their respective officers and
directors, and each person who controls TXU Funding or TXU
Holdings or any underwriter or any other selling Holder 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 a Registration Statement or the
related 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 TXU Funding or TXU
Holdings by or on behalf of such Holder, for use in connection
with the preparation of the Registration Statement or the related
Prospectus or any amendment or supplement to either thereof. The
indemnity agreement of the respective Holders contained in this
Section 4 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 TXU Funding or TXU
Holdings, any underwriter, or any other selling Holder, or their
respective directors or officers, or any such controlling person,
and shall survive the registration of the Registrable Securities;
provided, however, that, no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Registrable Securities pursuant
to a Registration Statement.
(c) TXU Funding, TXU Holdings and the Holders 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 liabilities 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). Each of the parties agrees that without the other
party's prior written consent, which consent shall not be
unreasonably withheld, it will not settle, compromise or consent
to the entry of any judgment in any claim in respect of which
indemnification may be sought under the indemnification provision
of this Agreement, unless such settlement, compromise or consent
(i) includes an unconditional release of such other party from
all liability arising out of such claim and (ii) does not include
a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of such other party.
(d) If the indemnification provided for in (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 (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to
reflect the (i) relative fault of each indemnifying party on the
one hand and the indemnified party on the other in connection
with the statement or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, the relative
benefits received by each indemnifying party on the one hand and
the indemnified party on the other hand from the offering of the
Registrable Securities pursuant to this Agreement, and 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. TXU Funding, TXU
Holdings and each of the Holders agree that it would not be just
and equitable if contributions pursuant to this paragraph (d)
were to be determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other
method of allocation which does not taken account of the
equitable consideration referred to above. Notwithstanding the
provisions of this Section 4, no Holder shall be required to
contribute in excess of the amount equal to the excess of (i) the
net proceeds received by such Holder from the sale of Registrable
Securities by it to Eligible Holders, over (ii) the amount of any
damages which such Holder 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 Holder to
contribute pursuant to this Section 4 are several and not joint
and shall not exceed the same proportion of all contributions of
Holders required hereunder as such Holder's Registrable
Securities sold pursuant to the Registration Statement is of the
total amount of Registrable Securities sold pursuant to the
Registration Statement.
5. Participation in Underwritten Registrations.
-------------------------------------------
No Holder may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents reasonably required under the terms of such
underwriting arrangements.
6. Selection of Underwriters.
-------------------------
The Holders of Registrable Securities covered by the
Shelf Registration Statement who desire to do so may sell the
securities covered by such Shelf Registration in an underwritten
offering. In any such underwritten offering, the underwriter or
underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Securities included
in such offering; provided, however, that such underwriters and
managers must be reasonably satisfactory to TXU Funding and TXU
Holdings.
7. Miscellaneous.
-------------
(a) Rule 144 and Rule 144A. For so long as TXU
----------------------
Funding or TXU Holdings is subject to the reporting requirements
of Section 13 or 15 of the Exchange Act and any Registrable
Securities remain outstanding, each of TXU Funding and TXU
Holdings will file the reports required to be filed by it under
the Securities Act and Section 13(a) or 15(d) of the Exchange Act
and the rules and regulations adopted by the SEC thereunder. If
either TXU Funding or TXU Holdings ceases to be so required to
file such reports, it will, upon the request of any Holder of
Registrable Securities (a) make publicly available such
information as is necessary to permit sales of their securities
pursuant to Rule 144 under the Securities Act, (b) deliver such
information to prospective purchasers as is necessary to permit
sales of their securities pursuant to Rule 144A under the
Securities Act and take such further action as any Holder of
Registrable Securities may reasonably request and (c) take such
further action that is reasonable in the circumstances, in each
case, to the extent required from time to time to enable such
Holder to sell its Registrable Securities without registration
under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule
may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time or
(iii) any similar rules or regulations hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Securities,
TXU Funding or TXU Holdings, as the case may be, will deliver to
such Holder a written statement as to whether it has complied
with such requirements.
(b) No Inconsistent Agreements. Neither TXU Funding
--------------------------
nor TXU Holdings as entered into nor will TXU Funding or TXU
Holdings on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of TXU
Funding's or TXU Holdings' other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this
----------------------
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers of consents to
departures from the provisions hereof may not be given unless TXU
Funding and TXU Holdings have obtained the written consent of
Holders of at least a majority in aggregate principal amount of
the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure;
provided no departure with respect to the provisions of Section 4
hereof shall be effective as against any Holder of Registrable
Securities without the consent of such Holder. Notwithstanding
the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Securities, by
written agreement signed by TXU Funding, TXU Holdings and the
Trustee, to cure any ambiguity, correct or supplement any
provision of this Agreement that may be defective or inconsistent
with any other provision of this Agreement or to make any other
provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other
provisions of this Agreement and shall not adversely affect the
interests of the Holders in any material respect, (ii) without
the consent of any Holder of Registrable Securities, this
Agreement may be amended, modified or supplemented, and waivers
and consents to departures from the provisions hereof may be
given, by written agreement signed by TXU Funding, TXU Holdings
and the Trustee to the extent that any such amendment,
modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the Staff of the
SEC) or any change therein and (iii) to the extent any provision
of this Agreement relates to the Initial Purchasers, such
provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by
written agreement signed by TXU Funding, TXU Holdings and the
Trustee.
(d) Notices. All notices and other communications
-------
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at
the most current address given by such Holder to TXU Funding by
means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase
Agreement and (ii) if to TXU Funding or TXU Holdings, initially
at TXU Funding' or TXU Holdings'address set forth in the Purchase
Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the
Indenture.
(e) Successors and Assigns. This Agreement shall
----------------------
inure to the benefit of and be binding upon the successors,
assigns and transferees of the Initial Purchasers, including,
without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or
other disposition of Registrable Securities in violation of the
terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in
any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable
Securities, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. Each of the Initial
-----------------------
Purchasers shall be a third party beneficiary of the agreements
made hereunder among TXU Funding, TXU Holdings and the Holders
and shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder.
(g) Consent to Jurisdiction; Appointment of Agent to
----------------------- -------------------------
Process. Accept Service of Each of TXU Funding and TXU Holdings
-------
irrevocably submits to the non-exclusive jurisdiction of any
federal or state court in the City, County and State of New York,
United States of America, in any legal suit, action or proceeding
based on or arising under this Agreement and agrees that all
claims in respect of such suit or proceeding may be determined in
any such court. Each of TXU Funding and TXU Holdings irrevocably
waives the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such
legal suit, action or proceeding. To the extent permitted by
law, each of TXU Funding and TXU Holdings hereby waives any
objection to the enforcement by any competent court in the United
Kingdom of, and to the relitigation before any competent court in
the United Kingdom in connection with, any judgment validly
obtained in any such court in New York on the basis of any such
legal suit, action or proceeding. Each of TXU Funding and TXU
Holdings has appointed Xxxxxx Xxxx & Priest LLP (the "Process
Agent") as its authorized agent upon whom process may be served
in any such legal suit, action or proceeding. Such appointment
shall be irrevocable. The Process Agent has agreed to act as
said agent for service of process and each of TXU Funding and TXU
Holdings agrees to take any and all action including the filing
of any and all documents and instruments, that may be necessary
to continue such appointment in full force and effect as
aforesaid. Each of TXU Funding and TXU Holdings further agrees
that service of process upon the Process Agent and written notice
of said service to each of TXU Funding and TXU Holdings shall be
deemed in every respect effective service of process upon each of
TXU Funding and TXU Holdings in any such legal suit, action or
proceeding. Nothing herein shall affect the right of any Initial
Purchaser or any person controlling any Initial Purchaser to
serve process in any other manner permitted by law. The
provisions of this subsection (g) shall remain operative and in
full force and effect regardless of any termination of this
Agreement, in whole or in part.
(h) Waiver of Immunities. To the extent that TXU
--------------------
Funding, TXU Holdings or any of their respective properties,
assets or revenues may have or may hereafter become entitled to,
or have attributed to it, any right of immunity, on the grounds
of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any thereof, from
set-off or counterclaim, from the jurisdiction of any court, from
service or process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for
the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be
commenced, with respect to its obligations, liabilities or any
other matter under or arising out of or in connection with the
Notes, the Guarantees, the Exchange Notes, the Exchange
Guarantees, the Deposit Agreement, the Indenture or this
Agreement, each of TXU Funding and TXU Holdings hereby
irrevocably and unconditionally waives and agrees not to plead or
claim, any such immunity and consents to such relief and
enforcement. Nothing in this subsection (h) shall be deemed to
waive any defense (other than any such immunity) available to
either TXU Funding or TXU Holdings. The provisions of this
subsection (h) shall remain operative and in full force and
effect regardless of any termination of this Agreement, in whole
or in part.
(i) Foreign Taxes. (a) All payments by TXU Funding or
-------------
TXU Holdings to the Holders hereunder shall be made free and
clear of, and without withholding or deduction for or on account
of, any present or future income, stamp, or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
any jurisdiction in which TXU Funding or TXU Holdings is managed
or has a place of business or in which TXU Funding or TXU
Holdings has a branch or office from which payment is made or
deemed to be made (each, a "Taxing Jurisdiction"), unless such
withholding or deduction is required by law. In the event of any
such withholding or deduction ("Foreign Taxes"), TXU Funding or
TXU Holdings shall pay to each Holder such additional amount as
shall be necessary in order that the amount received by such
Holder after withholding or deduction shall equal the amount that
would otherwise have been due to such Holder in the absence of
such withholding or deduction, except that no such amounts shall
be payable under this subsection (i) for:
(A) any such tax imposed by reason of any Holder
having some connection with the relevant Taxing
Jurisdiction (including being a citizen or
resident or national of, or carrying on a business
or maintaining a permanent establishment in, such
Taxing Jurisdiction) other than its participation
as an Initial Purchaser hereunder; and
(B) any income or franchise tax on the overall net
income of any Holder imposed by the United States
or by the State of New York or any political
subdivision of the United States or of the State
of New York.
(b) In the event any Initial Purchaser obtains any
actual payment of refund, credit, allowance, remission or other
deduction of, against or from income or taxable income otherwise
determined or taxes otherwise payable to which it may be entitled
from the relevant Taxing Jurisdiction in respect of any Foreign
Taxes paid on the Initial Purchaser's behalf by TXU Funding or
TXU Holdings or for which the Initial Purchaser has received
reimbursement from TXU Funding or TXU Holdings, the Initial
Purchaser shall, to the extent it can do so without prejudice to
the retention of the amount so realized (after taking into
account any net additional taxes paid in connection with the
realization thereof), notify TXU Funding or TXU Holdings, as the
case may be and pay TXU Funding or TXU Holdings, as the case may
be (to the extent that the same shall not already have been taken
into account in computing any amount previously paid by TXU
Funding or TXU Holdings or the amount of any reimbursement
previously received by the Initial Purchaser) promptly after the
realization thereof an amount which is equal to the net amount
thereof (or, in the event of a deduction from taxable income, the
tax benefit generated thereby, if less than such deduction) plus
any additional tax savings resulting from the payment pursuant to
this sentence, provided that the aggregate of all such payments
shall not exceed the aggregate of all amounts paid by the Company
in respect of such Foreign Taxes.
The provisions of this subsection (i) shall remain operative and
in full force and effect regardless of any termination of this
Agreement, in whole or in part.
(j) Luxembourg Stock Exchange Provisions. (i) TXU
------------------------------------
Funding and TXU Holdings will use their reasonable best efforts
to list the Exchange Notes on the Luxembourg Stock Exchange and
(ii) as long as the Notes or Exchange Notes, as applicable, are
listed on the Luxembourg Stock Exchange and the rules of such
Exchange so require:
(A) The exchange of the Notes for the Exchange
Notes pursuant to the Exchange Offer may be
effected through the Paying Agent in
Luxembourg.
(B) TXU Funding and TXU Holdings will provide
such Paying Agent with all documentation with
respect to the Exchange Offer, and
(C) TXU Funding and TXU Holdings will cause the
publication of a notice in a leading
newspaper having general circulation in
Luxembourg (i) prior to the Exchange Offer,
indicating the procedures to be followed
pursuant to the Exchange Offer, (ii)
subsequent to the Exchange Offer, indicating
the results thereof, (iii) of the payment of
any Additional Interest and (iv) noting any
increase in the interest rate on the Exchange
Notes.
(k) Counterparts. This Agreement may be executed in
------------
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(l) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(m) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
-------------
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(n) Severability. In the event that any one or more
------------
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(o) Securities Held by TXU Funding, TXU Holdings or
-----------------------------------------------
their Affiliates. Whenever the consent or approval of Holders of
----------------
a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by TXU Funding, TXU
Holdings or any of their affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first written above.
TXU EASTERN FUNDING COMPANY
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Attorney
TXU EASTERN HOLDINGS LIMITED
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Attorney
Accepted and delivered as of
the date first above written
XXXXXX BROTHERS INC.
on behalf of the Initial Purchasers
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
