FORM OF
FORM OF , dated as of ,
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1998 (the "") by and between Texas
Utilities Company, a Texas corporation (the "Company"), and
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not individually but solely as Purchase Contract Agent and as
attorney-in-fact of the holders of Purchase Contracts (each as
defined in the Purchase Contract Agreement (as defined herein)),
and ,
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(the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue an aggregate Stated
Amount $ of its Securities (the "Securities") under the
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Purchase Contract Agreement, dated as of , 1998, by and
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between the Purchase Contract Agent and the Company (the
"Purchase Contract Agreement"); and
WHEREAS, the Securities will initially consist of
units referred to as "Type A Securities," each such
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security consisting of a % Series D Senior Note due
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issued by the Company in the principal amount of $ (a "Debt
Security") and a Purchase Contract issued by the Company
("Purchase Contract") pursuant to the Purchase Contract Agreement
and units referred to as "Type B Securities," each such
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security consisting of certain U.S. Treasury Securities and a
Purchase Contract.
WHEREAS, the Debt Securities will be pledged pursuant
to the Pledge Agreement (the "Pledge Agreement"), dated as of
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, 1998, by and between the Company, , as
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Collateral Agent, Securities Intermediary and Custodial Agent
(the "Collateral Agent") and the Purchase Contract Agent, to
secure a Type A Security holder's obligations under the related
Purchase Contract on the Purchase Contract Settlement Date; and
WHEREAS, the Debt Securities of such holders electing
to have their Debt Securities that are not pledged pursuant to
the Pledge Agreement remarketed, or of such Type A Security
holders who have elected not to settle the Purchase Contracts
related to their Type A Security from the proceeds of a Cash
Settlement and who have not early settled their Purchase
Contracts, will be remarketed by the Remarketing Agent on the
third Business Day immediately preceding the Purchase Contract
Settlement Date; and
WHEREAS, the applicable interest rate on the Debt
Securities that remain outstanding on and after the Purchase
Contract Settlement Date will be reset on the third Business Day
immediately preceding the Purchase Contract Settlement Date, to
the Reset Rate to be determined by the Reset Agent as the rate
that such Debt Securities should bear in order to have an
approximate market value of 100.5% of the aggregate principal
amount of the Debt Securities on the third Business Day
immediately preceding the Purchase Contract Settlement Date,
provided that in the determination of such Reset Rate, the
Company may limit the Reset Spread (a component of the Reset
Rate) to be no higher than 200 basis points (2%); and
WHEREAS, the Company has requested
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(" ") to act as the Reset Agent and as the Remarketing
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Agent and as such to perform the services described herein; and
WHEREAS, is willing to act as Reset Agent
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and Remarketing Agent and as such to perform such duties on the
terms and conditions expressly set forth herein;
NOW, THEREFORE, for and in consideration of the
covenants herein made, and subject to the conditions herein set
forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not
defined in this Agreement shall have the meanings assigned to
them in the Purchase Contract Agreement or, if not therein
stated, the Pledge Agreement.
Section 2. Appointment and Obligations of Reset Agent
and Remarketing Agent. The Company hereby appoints
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and hereby accepts such appointment, (i) as the Reset
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Agent to determine, and in consultation with the Company and in
the manner provided for in the Indenture, the Reset Rate, that in
the opinion of the Reset Agent, will, when applied to the Debt
Securities, enable the Debt Securities, to have an approximate
market value of approximately 100.5% of the aggregate principal
amount of such Debt Securities, provided that the Company may
limit such Reset Rate to be no higher than the rate on the
Two-Year Benchmark Treasury plus 200 basis points (2%), and (ii)
as the exclusive Remarketing Agent to remarket the Debt
Securities (a) of Debt Securities holders electing to have their
Debt Securities remarketed, or (b) of Type A Security holders who
have not early settled the related Purchase Contracts and have
failed to notify the Purchase Contract Agent, on or prior to the
fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of their intention to settle the related
Purchase Contracts through Cash Settlement, for settlement on the
Purchase Contract Settlement Date, pursuant to the Remarketing
Underwriting Agreement attached hereto as Exhibit A, among the
Company, the Purchase Contract Agent and the Remarketing Agent
(with such changes as the Company, the Purchase Contract Agent
and the Remarketing Agent may agree upon, it being understood
that changes may be necessary in the representations, warranties,
covenants and other provisions of the Remarketing Underwriting
Agreement due to changes in law or facts and circumstances).
Pursuant to the Remarketing Underwriting Agreement, the
Remarketing Agent, either as the sole remarketing underwriter or
as the representative of a syndicate including the Remarketing
Agent and one or more other remarketing underwriters designated
by the Remarketing Agent, will agree, subject to the terms and
conditions set forth therein, that the Remarketing Agent and any
such other remarketing underwriters will purchase, severally, the
Debt Securities to be sold by the holder or holders of Debt
Securities or Type A Securities on the third Business Day
immediately preceding the Purchase Contract Settlement Date and
will use their reasonable efforts to remarket such Debt
Securities (such purchase and remarketing being hereinafter
referred to as the "Remarketing"), at a price of approximately
100.5% of the aggregate principal amount of such Debt Securities
plus any accrued and unpaid interest (including any deferred
interest). Notwithstanding the preceding sentence, the
Remarketing Agent shall not remarket any Debt Securities for a
price less than 100% of the aggregate principal amount of such
Debt Securities, plus accrued and unpaid interest and shall not
be required to purchase any Debt Securities not remarketed. The
proceeds of such remarketing shall be paid to the Collateral
Agent in accordance with Section 4.6 of the Pledge Agreement and
Section 5.4 of the Purchase Contract Agreement (both of which
Sections are incorporated herein by reference).
Section 3. Fees. With respect to the Remarketing, the
Remarketing Agent shall retain as Remarketing Fee an amount not
exceeding 25 basis points (.25%), of the aggregate principal
amount of the remarketed securities from any amount received in
connection with such Remarketing in excess of aggregate principal
amount of such remarketed Debt Securities plus any accrued and
unpaid interest (including any deferred interest). In addition,
the Reset Agent shall receive from the Company a reasonable and
customary fee for acting as the Reset Agent (the "Reset Agent
Fee"); provided, however, that if the Remarketing Agent shall
also act as the Reset Agent, then the Reset Agent shall not be
entitled to receive any such Reset Agent Fee. Payment of such
Reset Agent Fee shall be made by the Company on the third
Business Day immediately preceding the Purchase Contract
Settlement Date in immediately available funds or, upon the
instructions of the Reset Agent, by certified or official bank
check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing
Agent and Reset Agent. (a) The Company may in its absolute
discretion replace as the Remarketing Agent and/or as
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the Reset Agent in its capacity hereunder by giving notice prior
to 3:00 p.m., New York City time, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. Any
such replacement shall become effective upon the Company's
appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and/or
the Reset Agent. Upon providing such notice, the Company shall
use all reasonable efforts to appoint such a successor and to
enter into a with such successor as soon as
reasonably practicable.
(b) may resign at any time and be
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discharged from its duties and obligations hereunder as the
Remarketing Agent and/or as the Reset Agent by giving notice
prior to 3:00 p.m., New York City time, on the eleventh Business
Day immediately prior to the Purchase Contract Settlement Date.
Any such resignation shall become effective upon the Company's
appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and/or
the Reset Agent. Upon receiving notice from the Remarketing Agent
and/or the Reset Agent that it wishes to resign hereunder, the
Company shall appoint such a successor and enter into a
with it as soon as reasonably practicable.
Section 5. Dealing in the Securities. The Remarketing
Agent, when acting hereunder or under the Remarketing
Underwriting Agreement or acting in its individual or any other
capacity, may, to the extent permitted by law, buy, sell, hold or
deal in any of the Debt Securities. With respect to any Debt
Securities owned by it, the Remarketing Agent may exercise any
vote or join in any action with like effect as if it did not act
in any capacity hereunder. The Remarketing Agent, in its
individual capacity, either as principal or agent, may also
engage in or have an interest in any financial or other
transaction with the Company as freely as if it did not act in
any capacity hereunder.
Section 6. Registration Statement and Prospectus. In
connection with the Remarketing, if and to the extent required
(in the opinion of counsel for either the Remarketing Agent or
the Company) by applicable law, regulations or interpretations in
effect at the time of such Remarketing, the Company shall use its
reasonable efforts to have a registration statement relating to
the Debt Securities effective under the Securities Act of 1933 by
the third Business Day immediately preceding the Purchase
Contract Settlement Date, shall furnish a current prospectus
and/or prospectus supplement to be used in such Remarketing by
the remarketing underwriter or underwriters under the Remarketing
Underwriting Agreement, and shall pay all expenses relating
thereto.
Section 7. Conditions to the Remarketing Agent's
Obligations. (a) The obligations of the Remarketing Agent and any
other remarketing underwriters to purchase and remarket the Debt
Securities, as the case may be, shall be subject to the terms and
conditions of the Remarketing Underwriting Agreement.
(b) If at any time during the term of this Agreement,
any Event of Default (as defined therein) under the Indenture, or
event that with the passage of time or the giving of notice or
both would become an Event of Default under the Indenture, has
occurred and is continuing, then the obligations and duties of
the Remarketing Agent under this Agreement shall be suspended
until such default or event has been cured. The Company will
cause the Trustee to give the Remarketing Agent notice of all
such defaults and events of which the Trustee is aware.
Section 8. Termination of . This
Agreement shall terminate as to the Remarketing Agent on the
effective date of its replacement pursuant to Section 4(a) hereof
or pursuant to Section 4(b) hereof. Notwithstanding any such
termination, the obligations set forth in Section 3 hereof shall
survive and remain in full force and effect until all amounts
payable under said Section 3 shall have been paid in full.
Section 9. Remarketing Agent's Performance; Duty of
Care. The duties and obligations of the Remarketing Agent
hereunder shall be determined solely by the express provisions of
this Agreement and the Remarketing Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
Section 11. Term of Agreement. Unless otherwise
terminated in accordance with the provisions hereof and except as
otherwise provided herein, this Agreement shall remain in full
force and effect from the date hereof until the first day
thereafter on which no Debt Securities are outstanding.
Section 12. Successors and Assigns. The rights and
obligations of the Company hereunder may not be assigned or
delegated to any other person without the prior written consent
of as the Remarketing Agent and the Purchase
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Contract Agent. The rights and obligations of as the
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Remarketing Agent and/or as the Reset Agent hereunder may not be
assigned or delegated to any other person without the prior
written consent of the Company. This Agreement shall inure to the
benefit of and be binding upon the Company and as the
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Remarketing Agent and/or as the Reset Agent and their respective
successors and assigns. The terms "successors" and "assigns"
shall not include any purchaser of Securities merely because of
such purchase.
Section 13. Headings. Section headings have been
inserted in this Agreement as a matter of convenience of
reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
Section 14. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public
policy or for any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid,
inoperative or unenforceable in any other case, circumstances or
jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
Section 15. Counterparts. This Agreement may be
executed in counterparts, each of which shall be regarded as an
original and all of which shall constitute one and the same
document.
Section 16. Amendments. This Agreement may be amended
by any instrument in writing signed by the parties hereto.
Section 17. Notices. Unless otherwise specified, any
notices, requests, consents or other communications given or made
hereunder or pursuant hereto shall be made in writing or
transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All
written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered
or mailed, registered or certified mail, return receipt requested
and postage prepaid. All such notices, requests, consents or
other communications shall be addressed as follows: if to the
Company, to Texas Utilities Company, 0000 Xxxxx Xxxxxx, Xxxxxx,
Xxxxx 00000, Attention: Treasurer; if to the Remarketing Agent or
Reset Agent, ; and if to the
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Purchase Contract Agent, , or to such other
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address as any of the above shall specify to the other in writing.
IN WITNESS WHEREOF, each of the Company, the
Remarketing Agent and the Purchase Contract Agent has caused this
Agreement to be executed in its name and on its behalf by one of
its duly authorized officers as of the date first above written.
TEXAS UTILITIES COMPANY
By:
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Name:
Title:
CONFIRMED AND ACCEPTED:
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By:
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Authorized Signatory
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not individually but solely as
Purchase Contract Agent and as
attorney-in-fact for the holders
of the Purchase Contracts
By:
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Name:
Title:
Exhibit A to
FORM OF REMARKETING UNDERWRITING AGREEMENT
------------------------------------------------------ (the
"Remarketing Underwriter") hereby agrees, subject to the terms
and conditions herein set forth or incorporated herein, to
purchase the Debt Securities as set forth in Schedule I hereto,
that have been tendered by the holders of the Type A Securities
for sale on .
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1. Definitions. Capitalized terms used and not defined in
this Agreement shall have the meanings assigned to them in the
purchase contract agreement (the "Purchase Contract Agreement"),
the pledge agreement (the "Pledge Agreement"), the underwriting
agreement, dated , between the Company and
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, as underwriters with respect to the issuance and
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sale of the Securities (the "Underwriting Agreement"), and the
Indenture (For Unsecured Debt Securities Series D), dated
, between and the Company (the
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"Indenture").
2. Registration Statement and Prospectus. If required (in
the opinion of counsel to either the Remarketing Underwriter or
the Company) by applicable law, the Company has filed with the
Securities and Exchange Commission, and there has become
effective, a registration statement on Form S-3 (No. 333- ),
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including a prospectus, relating to the Debt Securities. Such
registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the "Registration
Statement", the prospectus included in the Registration Statement
is hereinafter referred to as the "Basic Prospectus" and the
Basic Prospectus, as amended or supplemented to the date of
this Agreement to relate to the Debt Securities and to the
remarketing of the Debt Securities, is hereinafter referred
to as the "Final Prospectus" (including in each case all
documents incorporated by reference).
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of Sections
and of the Underwriting Agreement shall be incorporated,
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as applicable into this Agreement and made applicable to the
obligations of the Remarketing Underwriter, except as explicitly
amended hereby.
(b) With respect to the provisions of the Underwriting
Agreement incorporated herein, for the purposes hereof, (i) all
references therein to the "Underwriter" or "Underwriters" or the
"Representative" or "Representatives", as the case may be, shall
be deemed to refer to the Remarketing Underwriter; (ii) all
references therein to the "Securities" which are the subject
thereof shall be deemed to refer to the Debt Securities as
defined herein; (iii) all references therein to the "Closing
Date" shall be deemed to refer to the Remarketing Closing Date
specified in Schedule I hereto (the "Remarketing Closing Date");
(iv) all references therein to the "Registration Statement", the
"Basic Prospectus" and the "Final Prospectus" shall be deemed to
refer to the Registration Statement, the Basic Prospectus and the
Final Prospectus, respectively, as defined herein.
4. Purchase and Sale; Remarketing Underwriting Fee.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth or incorporated
herein, the Remarketing Underwriter agrees to purchase from the
registered holder or holders thereof in the manner specified in
Section 5 hereof, the principal amount of remarketed Debt
Securities set forth in Schedule I hereto at a purchase price not
less than 100% of the aggregate principal amount of such Debt
Securities, plus any accrued and unpaid interest thereon. In
connection therewith, the registered holder or holders thereof
agree, in the manner specified in Section 5 hereof, to pay to the
Remarketing Underwriter a Remarketing Underwriting Fee equal to
an amount not exceeding 25 basis points (.25%) of the aggregate
principal amount of the remarketed Debt Securities, from any amount
received from such Remarketing in excess of the aggregate
principal amount of such remarketed Debt Securities, plus any
accrued and unpaid interest.
5. Delivery and Payment. Delivery of payment for the
remarketed Debt Securities and payment of the Remarketing
Underwriting Fee shall be made on the Remarketing Closing Date at
the location and time specified in Schedule I hereto (or such
later date not later than five business days after such date as
the Remarketing representatives shall designate), which date and
time may be postponed by agreement between the Remarketing
Underwriter, the Company, and the registered holder or holders
thereof. Delivery of the remarketed Debt Securities and payment
of the Remarketing Underwriting Fee shall be made to the
Remarketing Underwriter [to or upon the order of the [registered
holder or holders of the remarketed Debt Securities] by certified
or official bank check or checks drawn on or by a New York Clearing
House bank and payable in immediately available funds] [in
immediately available funds by wire transfer to an account or
accounts designated by the [Company] [registered holder or
holders of the remarketed Debt Securities]] or, if the remarketed
Debt Securities are represented by a Global Security, by any
method of transfer agreed upon by the Remarketing Underwriter and
the Depositary for the Debt Securities under the Indenture.
[It is understood that any registered holder or, if the Debt
Securities are represented by a Global Security, any beneficial
owner, that has an account at the Remarketing Underwriter and
tenders its Debt Securities through such account will not be
required to pay any fee or commission to the Remarketing
Underwriter.]
If the Debt Securities are not represented by a Global
Security, certificates for the Debt Securities shall be
registered in such names and denominations as the Remarketing
Underwriter may request not less than three full business days in
advance of the Remarketing Closing Date, and the Company, and the
[registered holder or holders thereof] agree to have such
certificates available for inspection, packaging and checking by
the Remarketing Underwriter in New York, New York not later than
1:00 p.m. on the Business Day prior to the Remarketing Closing
Date.
6. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made
hereunder or pursuant hereto shall be made in writing or
transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All
written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered
or mailed, registered or certified mail, return receipt requested
and postage prepaid. All such notices, requests, consents or
other communications shall be addressed as follows: if to the
Company, to Texas Utilities Company, 0000 Xxxxx Xxxxxx, Xxxxxx,
Xxxxx 00000, Attention: Treasurer; if to the Remarketing Agent or
Reset Agent, to ; and if to the Purchase Contract
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Agent, to , or to such other address as
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any of the above shall specify to the other in writing.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company
and the several Remarketing Underwriters.
Very truly yours,
TEXAS UTILITIES COMPANY
By:
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Name:
Title:
CONFIRMED AND ACCEPTED:
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By:
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Authorized Signatory
not individually but solely as
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Purchase Contract Agent and as attorney-in-fact for the holders
of the Purchase Contracts
By:
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Name:
Title:
SCHEDULE I
Title of Securities: % Series D Senior Notes due
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Principal Amount of Securities: $
Underwriting Agreement, dated as of , 1998, between the
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Company and
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Remarketing [Underwriting] Fee: % ($ )
Remarketing Closing Date, Time and Location:
