EXHIBIT 4(M)
TRUST AGREEMENT
OF TXU ELECTRIC CAPITAL VII
This TRUST AGREEMENT of TXU Electric Capital VII (the "Trust"), dated
as of January 4, 2001, among (i) TXU Electric Company, a Texas corporation (the
"Depositor"), (ii) The Bank of New York, a New York banking corporation (the
"Property Trustee"), not in its individual capacity but solely as trustee of the
Trust, (iii) The Bank of New York (Delaware), a Delaware banking corporation
(the "Delaware Trustee"), not in its individual capacity but solely as trustee
of the Trust, and (iv) Xxxxx Xxxx, an individual employed by the Depositor or
one of its affiliates, not in her individual capacity but solely 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 Electric Capital
VII", 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. ss.3801 et seq. (the "Business 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")
1
(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 her 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.
2
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 ELECTRIC COMPANY
as Depositor
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary and Assistant Treasurer
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Trustee
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx, SVP
Title:
XXXXX XXXX,
not in her individual capacity
but solely as Trustee
By: /s/ Xxxxx Xxxx
----------------------------------------
3
CERTIFICATE OF TRUST
OF
TXU ELECTRIC CAPITAL VII
THIS CERTIFICATE OF TRUST of TXU Electric Capital VII (the "Trust"), dated
as of January 4, 2001, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del.C. ss. 3801 et seq.).
1. Name. The name of the business trust formed hereby is TXU Electric
Capital VII.
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 XXXX,
not in its individual capacity not in her individual capacity
but solely as Trustee but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxx Xxxx
------------------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx, SVP
Title:
2
