EXHIBIT 3
AMENDMENT NO. 1 TO EXCHANGE AGREEMENT
AMENDMENT NO. 1 TO EXCHANGE AGREEMENT, dated as of July 1,
2003 (the "Amendment"), by and between TXU Corp., a Texas corporation (the
"Company"), TXU Energy Company LLC ("TXU Energy"), a Delaware limited liability
company and a wholly-owned subsidiary of the Company and each of the entities
listed on Schedule A attached hereto (each, a "Purchaser" and collectively, the
"Purchasers").
WHEREAS, on November 22, 2002, the Company and TXU Energy sold
to UXT Holdings LLC and UXT Intermediary LLC (together, the "Initial
Purchasers"), and the Initial Purchasers purchased from the Company and TXU
Energy, $750 million principal amount of TXU Energy's 9% Exchangeable
Subordinated Notes due 2012 (the "Notes");
WHEREAS, on December 19, 2002, the Initial Purchasers, with
the consent of the Company and TXU Energy, transferred an aggregate of $250
million principal amount of the Notes to the Purchasers other than the Initial
Purchasers;
WHEREAS, the Purchasers hold, in the aggregate, all of the
outstanding Notes;
WHEREAS, pursuant to Section 2.04 of the Notes, TXU Energy has
the right under certain circumstances to require the Purchasers to exchange
their Notes for a preferred equity interest in the Company ("Class B Preferred
Membership Interests") having substantially identical economic and other terms
as the Notes and otherwise in form and substance satisfactory to the Purchasers
(the "Exchange Right"); and
WHEREAS, TXU Energy desires to exercise its Exchange Right,
and in connection therewith, the Company, TXU Energy and the Purchasers agree to
amend the Agreement as set forth in this Amendment.
NOW, THERETOFORE, in consideration of the premises and the
covenants hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, it is agreed as follows:
1. Amended Definitions. The following definitions contained in
Section 1 of the Agreement are amended in their entirety to read as follows:
"Conversion Principal Amount" means, at a specified date, an
amount of the Current Invested Principal Amount set forth in an Exchange Notice
that represents the aggregate unpaid liquidation value of the Class B Preferred
Membership Interests that a Purchaser is requesting to be converted into Common
Stock pursuant to such Exchange Notice.
"Invested Principal Amount" means $750,000,000, excluding any
dividends added to the Invested Principal Amount pursuant to Section 2.01(a) of
the Class B Preferred
Membership Interest Certificates representing the Class B Preferred Membership
Interests exchanged.
"Majority in Interest" means, at any time, a majority of the
unpaid liquidation value of the Class B Preferred Membership Interests
outstanding at such time.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 22, 2002, among the Company, UXT Holdings LLC
and UXT Intermediary LLC, as amended by Amendment No. 1 to Registration Rights
Agreement, dated as of December 19, 2002 and as further amended by Amendment
No. 2 to Registration Rights Agreement, dated as of the date hereof, and as the
same may be further amended from time to time in accordance with the terms
thereof.
"Termination Date" means the earlier to occur of (i) the later
of (A) the tenth anniversary of November 22, 2002 and (B) the date no unpaid
liquidation value of the Class B Preferred Membership Interests remain
outstanding and (ii) the date on which the DLJ Entities or their Permitted
Transferees own Class B Preferred Membership Interests and Common Stock
aggregating less than thirty percent (30%) of the Invested Principal Amount
(determined, in the case of Common Stock, on the basis of the Class B Preferred
Membership Interest Exercise Price at the date the Exchange Rights are exercised
with respect to such Common Stock).
2. Added Definitions. The following definitions shall be added in
their entirety to Section 1 of the Agreement:
"Class B Preferred Membership Interests" shall have the
meaning set forth in the LLC Agreement.
"Class B Preferred Membership Interest Certificate(s)" shall
have the meaning set forth in the LLC Agreement.
"LLC Agreement" means the Company's Second Amended and
Restated Limited Liability Company Agreement dated as of July 1, 2003, as the
same may be amended from time to time in accordance with the terms thereof.
3. Replaced Definitions. The definition of "Purchaser" and
"Purchasers" in the Preamble of the Agreement shall be replaced by the
definition of "Purchaser" and "Purchasers" contained herein.
4. Amended Sections. (i) Section 2(a) shall be amended by
replacing in all instances (1) the term "Notes" with the term "Class B Preferred
Membership Interests," and (2) the term "Note Exercise Price" with the term
"Class B Preferred Membership Interest Exercise Price."
(ii) The heading of Section 2, the heading of Section 2(d),
Sections 2(b), 2(e), 4(f), 5(a), 7(a), 8, 10(a), 10(b), 10(d)(i) and 10(d)(ii)
shall be amended by replacing in all instances the term "Notes" with the term
"Class B Preferred Membership Interests."
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(iii) Section 2(c)(ii) shall be amended in its entirety to
read as follows: the unpaid liquidation value of the Class B Preferred
Membership Interests to be exchanged expressed as a Conversion Principal Amount.
(iv) Section 2(d)(i), 4(a), 4(b), 4(e) and 4(h) shall be
amended by replacing in all instances the term "Note Exercise Price" with the
term "Class B Preferred Membership Interest Exercise Price."
(v) Section 2(d)(ii) shall be amended in its entirety to read
as follows: Any accrued and unpaid dividends (including accrued and unpaid
dividends added to the Invested Principal Amount pursuant to Section 2.01(a) of
the Class B Preferred Membership Interest Certificates) in respect of any Class
B Preferred Membership Interests to be exchanged into shares of Common Stock
pursuant to an Exchange Notice shall be paid in cash at the time such Class B
Preferred Membership Interests are exchanged.
(vi) Section 2(f)(i)(B) shall be amended in its entirety to
read as follows: an amount in cash equal to any accrued and unpaid dividends
(including accrued and unpaid dividends added to the Invested Principal Amount
pursuant to Section 2.01(a) of the Class B Preferred Membership Interest
Certificates) in respect of the Class B Preferred Membership Interests exchanged
into Common Stock pursuant to the Exchange Notice delivered to the Company under
Section 2(d) above.
(vii) Section 2(f)(ii) shall be amended in its entirety to
read as follows: At the Closing or any Subsequent Closing, as the case may be,
each applicable Purchaser shall deliver to the Company such number of Class B
Preferred Membership Interest Certificates owned by such Purchaser with an
aggregate unpaid liquidation value equal to the Conversion Principal Amount as
set forth in the Exchange Notice to which the Closing or such Subsequent Closing
relates, together with an instrument of transfer reasonably satisfactory to the
Company duly executed by such Purchaser.
(viii) Section 3(b)(i) shall be amended in its entirety to
read as follows: Each Initial Purchaser is a corporation, limited liability
company or partnership, as the case may be, duly organized and validly existing
under the laws of its jurisdiction of incorporation. Each Purchaser (other than
the Initial Purchasers) is duly organized and validly existing under the laws of
its jurisdiction of organization.
(ix) Section 10(c)(i) shall be amended in its entirety to read
as follows:
(i) If to any Initial Purchaser, at
UXT Holdings LLC
Eleven Madison Avenue
New York, NY 10010-3629
Attention: Xxx Xxxxx
Facsimile: 000-000-0000
with a copy to:
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Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Xxxx Xxxxxx
Facsimile: 212-848-7179
If to any Holder (other than the Initial Purchasers)
at the address provided to the Company by such Holder
5. Other Amendments. All references to "Agreement" in the
Agreement shall, from and after the date hereof, be deemed to refer to the
Agreement as amended by this Amendment.
6. Provisions of Agreement Not Otherwise Modified. Except as
specifically amended by this Amendment, the Agreement is hereby ratified,
approved and confirmed and remains in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
TXU CORP.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
TXU ENERGY COMPANY LLC
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
UXT HOLDINGS LLC
By: DLJ Merchant Banking III, Inc.,
as Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
UXT INTERMEDIARY LLC
By: UXT AIV, L.P., its Managing Member
By: DLJ Merchant Banking III, Inc.,
as Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
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XXXXXXXX XXXXX PENSION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
THE BUFFALO NEWS OFFICE PENSION PLAN
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
THE BUFFALO NEWS EDITORIAL PENSION
PLAN
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
CORNHUSKER CASUALTY COMPANY
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
FLIGHTSAFETY INTERNATIONAL INC.
RETIREMENT INCOME PLAN
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
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FRUIT OF THE LOOM PENSION TRUST
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
GEICO CORPORATION PENSION PLAN
TRUST
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
GOVERNMENT EMPLOYEES INSURANCE
COMPANY
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXX XXXXXXXX CORPORATION MASTER
PENSION TRUST
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXX BRANDS, INC. UNION PENSION PLAN
AND XXXXXX BRANDS, INC. PENSION PLAN &
TRUST
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
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ACME BRICK COMPANY PENSION TRUST
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXX XXXXXX COMPANY COLLECTIVE
INVESTMENT TRUST
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Signatory
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Schedule A
List of Entities
----------------
UXT Intermediary LLC
UXT Holdings LLC
Xxxxxxxx Xxxxx Pension
Buffalo News Office Pension Plan
Buffalo News Editorial Pension Plan
Cornhusker Casualty Company
FlightSafety International Inc. Retirement Income Plan
Fruit of the Loom Pension Trust
GEICO Corporation Pension Plan Trust
Government Employees Insurance Company
Xxxxx Xxxxxxxx Corporation Master Pension Trust
Xxxxxx Brands, Inc. Union Pension Plan and Xxxxxx Brands, Inc. Pension Plan and
Trust
Acme Brick Company Pension Trust
Xxxxx Xxxxxx Company Collective Investment Trust
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