Contract
FIRST
SUPPLEMENTAL INDENTURE, dated as of October 5, 2007, to the Indenture dated
as
of November 1, 2004 (as amended and supplemented to the date hereof, the
“Indenture”), by and between TXU Corp., a Texas corporation (the “Company”) and
The Bank of New York, as trustee (the “Trustee”).
W
I T N E S S E T H:
WHEREAS,
the Company and the Trustee have heretofore executed and delivered the
Indenture, and the Company has issued pursuant to the Indenture its 4.80% Series
O Senior Notes due 2009 (the “Notes”);
WHEREAS,
Section 1202 of the Indenture provides that the Company and the Trustee may,
with the consents of the holders of at least a majority in aggregate principal
amount of the Securities (as defined in the Indenture) of all series Outstanding
(as defined in the Indenture) under the Indenture, considered as one class,
enter into this Supplemental Indenture;
WHEREAS,
the Notes are the only Securities Outstanding under the Indenture;
WHEREAS,
the Company has offered to purchase for cash, among other securities, any and
all of the outstanding Notes upon the terms and subject to the conditions set
forth in the Offer to Purchase and Consent Solicitation Statement, dated
September 25, 2007 (as the same may be amended or supplemented from time to
time, the “Statement”), and in the related Consent and Letter of Transmittal (as
the same may be amended or supplemented from time to time, and, together with
the Statement, the “Offer”), from each Holder of such Notes;
WHEREAS,
the Offer is conditioned upon, among other things, certain amendments to the
Indenture, to the Officer’s Certificate dated November 26, 2004 relating to the
Notes (the “2004 Officer’s Certificate”) and to the Notes set forth in Article
Two, Article Three, Article Four and Article Five of this Supplemental Indenture
(the “Amendments”) having been approved by Holders of not less than a majority
of the outstanding principal amount of the Notes and a supplemental indenture
in
respect thereof having been executed and delivered by the Company and the
Trustee;
WHEREAS,
the Company has received the consents from Holders of not less than a majority
of the outstanding aggregate principal amount of the Notes to effect the
Amendments;
WHEREAS,
the Company has delivered to the Trustee an Officer’s Certificate (as defined in
the Indenture) as well as an Opinion of Counsel (as defined in the Indenture)
to
the effect that the execution and delivery of this Supplemental Indenture by
the
Company is authorized or permitted under the Indenture and that all conditions
precedent provided for in the Indenture to the execution and delivery of this
Supplemental Indenture to be complied with by the Company have been complied
with;
WHEREAS,
the Company has been authorized by resolution to enter into this Supplemental
Indenture;
WHEREAS,
all other acts and proceedings required by law, by the Indenture and by the
charter documents of the Company to make this Supplemental Indenture a valid
and
binding agreement for the purposes expressed herein, in accordance with its
terms, have been duly done and performed; and
WHEREAS,
the Company hereby requests that the Trustee execute and deliver this
Supplemental Indenture;
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, and for other good and valuable consideration the receipt
of
which is hereby acknowledged, the Company and the Trustee hereby agree as
follows:
ARTICLE
ONE
SECTION
1.01. Definitions
.
Capitalized
terms used in this Supplemental Indenture and not otherwise defined herein
shall
have the meanings assigned to such terms in the Indenture.
ARTICLE
TWO
SECTION
2.01. Amendments to Table of Contents
.
(a) The
Table of Contents of the Indenture is amended by deleting the titles to Sections
602, 605, 606, 608 and 815 and inserting in lieu thereof the phrase
“[intentionally omitted]”.
(b) The
Table of Contents of the Indenture is further amended by deleting the title
to
Section 1002 and replacing it with the following: “REPORTS BY
TRUSTEE”.
ARTICLE
THREE
SECTION
3.01. Elimination of Certain Provisions in Article
Six
.
(a) Section
602 of the Indenture is amended by deleting it in its entirety and inserting
in
lieu thereof the phrase “[intentionally omitted]”.
(b) Section
605 of the Indenture is amended by deleting it in its entirety and inserting
in
lieu thereof the phrase “[intentionally omitted]”.
(c) Section
606 of the Indenture is amended by deleting it in its entirety and inserting
in
lieu thereof the phrase “[intentionally omitted]”.
(d) Section
608 of the Indenture is amended by deleting it in its entirety and inserting
in
lieu thereof the phrase “[intentionally omitted]”.
SECTION
3.02. Elimination of Certain Provisions in Article
Eight
.
(a) Section
801 of the Indenture is amended by deleting the text of subsection (c) in its
entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(b) Section
815 of the Indenture is amended by deleting it in its entirety and inserting
in
lieu thereof the phrase “[intentionally omitted]”.
.
SECTION 3.03. Amendment and Elimination of Certain
Provisions in Article Ten
(a) Section
1002 of the Indenture is amended by deleting the final two sentences of the
first paragraph and the entire second paragraph of this section.
(b) Section
1002 of the Indenture is further amended by retitling such section as “Section
1002. REPORTS BY TRUSTEE”.
.
SECTION 3.04. Amendment and Elimination of Certain
Provisions in Article Eleven
(a) Section
1101 of the Indenture is amended by deleting subsections (b) and (c) and
inserting in lieu thereof the phrase “[intentionally omitted]”.
ARTICLE
FOUR
.
SECTION 4.01. Amendment of a Provision in the 2004
Officer’s Certificate
The
2004 Officer’s Certificate is amended by deleting Section 13 in its entirety and
inserting in lieu thereof the phrase “[intentionally omitted]”.
ARTICLE
FIVE
SECTION
5.01. Amendment of Certain Provisions in the
Notes
.
The
Notes are amended by inserting the following text on the reverse of each
Note:
“Notwithstanding
anything to the contrary contained herein, the terms of the Indenture, the
related Officer’s Certificate and this Security have been amended and the
following provisions of the Indenture and the related Officer’s Certificate, and
the corresponding provisions of this Security, are no longer applicable to
this
Security: Section 602, Section 605, Section 606, Section 608,
subsection (c) of Section 801, Section 815 and subsections (b) and (c) of
Section 1101; and Section 13 of the Officer’s Certificate. In
addition, Section 1002 of the Indenture has been amended.”
ARTICLE
SIX
SECTION
6.01. Effectiveness of Amendments
.
This
Supplemental Indenture shall be effective upon its execution and delivery by
the
parties hereto. The Amendments set forth in Articles Two through Five hereof
will only become operative immediately prior to the acceptance for payment
of
Notes validly tendered and not withdrawn at or prior to the Consent Payment
Deadline (as defined in the Statement) pursuant to the Offer
therefor.
SECTION
6.02. Continuing Effect of Indenture
.
Except
as expressly provided herein, all of the terms, provisions and conditions of
the
Indenture, the Notes and the 2004 Officer’s Certificate shall remain in full
force and effect.
SECTION
6.03. Construction of Supplemental
Indenture
.
This
Supplemental Indenture is executed as and shall constitute an indenture
supplemental to the Indenture and shall be construed in connection with and
as
part of the Indenture. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION
6.04. Trust
Indenture Act Controls
.
If
any provision of this Supplemental Indenture limits, qualifies or conflicts
with
another provision of this Supplemental Indenture or the Indenture that is
required to be included by the Trust Indenture Act of 1939 as in force at the
date as of which this Supplemental Indenture is executed, the provision required
by said Act shall control.
SECTION
6.05. Trustee Disclaimer
.
The
recitals and statements contained in this Supplemental Indenture shall be taken
as the recitals and statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture. All rights, protections, privileges, indemnities and
benefits granted or afforded to the Trustee under the Indenture shall be deemed
incorporated herein by this reference and shall be deemed applicable to all
actions taken, suffered or omitted by the Trustee under this Supplemental
Indenture.
SECTION
6.06. Counterparts
.
This
Supplemental Indenture may be executed in any number of counterparts, each
of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION
6.07. Supplemental Indenture Forms Part of
Indenture
.
This
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Indenture and, as provided in the Indenture, this
Supplemental Indenture forms a part of the Indenture for all
purposes. The Indenture, as amended and supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed.
SECTION
6.08. Headings
.
The
section headings herein are for convenience only and shall not affect the
construction hereof.
SECTION
6.09. Severability
.
In
case any provision in this Supplemental Indenture, the 2004 Officer’s
Certificate or the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the day and year first above written.
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TXU
CORP.
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By:
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Name:
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Title:
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THE
BANK OF NEW YORK,
as
Trustee
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By:
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Name:
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Title:
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TXU
CORP.
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By:
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Name:
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Title:
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THE
BANK OF NEW YORK,
as
Trustee
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By:
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Name:
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Title:
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