TRUST AGREEMENT
OF TXU GAS CAPITAL II
This TRUST AGREEMENT of TXU Gas Capital II (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
Trustees")(each of such trustees in (ii), (iii) and (iv) a "Trustee" and
collectively, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "TXU Gas Capital
II", in which name the Trustees, or the Depositor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and 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
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Trust Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Secretary of State of the State of Delaware in
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form to be included as an exhibit to the 1933 Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Trust Securities and Common
Trust Securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustees shall not have any duty
or obligation hereunder 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 approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
each of the Administrative Trustees, and the Depositor, 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 Commission (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 Registration 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
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Trust Securities under the
securities or blue sky laws of such jurisdictions as the Depositor or the
Administrative Trustee, on behalf of the Trust, may deem 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 Securities in such form
as the Depositor shall approve. In the event that any filing referred to above
is required by the rules and regulations of the Commission, the Exchange or
state securities or blue sky laws, to be executed on behalf of the Trust by one
or more of the Trustees, each of the Trustees, in its or her capacity as
Trustee of the Trust, is hereby authorized and, to the extent so required,
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the Property Trustee and the
Delaware Trustee, in their capacities as Trustees of the Trust, respectively,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws. In connection
with the filings referred to above, the Depositor and each Trustee, solely in
its or her capacity as trustee of the Trust, hereby constitutes and appoints
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 substitution and resubstitution, for the Depositor or such Trustee or
in the Depositor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all filings and amendments (including
post-effective amendments) to any of such filings (including the 1933 Act
Registration Statement and the 1934 Act Registration Statement) and to file
the same, with all exhibits thereto and other documents in connection therewith,
with the Commission, the Exchange and securities or blue sky administrators,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Depositor or
such Trustee might or could do in person, hereby ratifying and confirming 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 Cancellation 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
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Name: Xxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
(DELAWARE), as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
Xxxxx Xxxxxxxx, as Trustee
By: /s/ Xxxxx Xxxxxxxx
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CERTIFICATE OF TRUST
OF
TXU GAS CAPITAL II
THIS CERTIFICATE OF TRUST of TXU Gas Capital II (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 II.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), 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
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Name: XXXXXX X. XXXXXX
Title: Authorized Signatory
