TRUST AGREEMENT
OF TXU GAS CAPITAL III
This TRUST AGREEMENT of TXU Gas Capital III (the
"Trust"), dated as of August 18, 1999, among (i) TXU Gas Company,
a Texas corporation (the "Depositor"), (ii) The Bank of New York,
a New York banking corporation (the "Property Trustee"), as
trustee of the Trust, (iii) The Bank of New York (Delaware), a
Delaware banking corporation (the "Delaware Trustee"), as trustee
of the Trust, and (iv) Xxxxx Xxxxxxxx, an individual employed by
the Depositor or one of its affiliates, as trustee of the Trust
(the "Administrative Trustee")(the Administrative Trustee,
together with any administrative trustees appointed by the
Depositor after the date hereof, the "Administrative Trust-
ees")(each of such trustees in (ii), (iii) and (iv) a "Trustee"
and collectively, the "Trustees"). The Depositor and the Trust-
ees hereby agree as follows:
1. The trust created hereby shall be known as "TXU
Gas 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 xxx 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
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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,
Xxxxxx X. Xxxxx, Xx., 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 Xxxxxx X. Xxxxxxxxxx, Xxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxx, Xx., and each of them, as its or his 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).
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
TXU GAS COMPANY,
as Depositor
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
(DELAWARE), as Trustee
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
Xxxxx Xxxxxxxx, as Trustee
By: /s/ Xxxxx Xxxxxxxx
----------------------------
CERTIFICATE OF TRUST
OF
TXU GAS CAPITAL III
THIS CERTIFICATE OF TRUST of TXU Gas Capital III (the
"Trust"), dated as of August 18, 1999, is being duly executed
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and filed by the undersigned, as trustees, to form a business
trust under the Delaware Business Trust Act (12 Del.C. S. 3801 et
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seq.).
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1. Name. The name of the business trust formed
hereby is TXU Gas 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), Xxxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
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, XXXXX XXXXXXXX
not in its individual capacity not in here individual capacity
but solely as trustee but solely as trustee
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxx
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Name: XXXXXX X. XXXXXX
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as trustee
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: XXXXXX X. XXXXXX
Title: Authorized Signatory
