___________, 1998
EXCHANGE AGENT AGREEMENT
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The Bank of New York
Corporate Trust Trustee Administration
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Ladies and Gentlemen:
Texas Utilities Company (the "Company") proposes to
make an offer (the "Exchange Offer") to exchange equal principal
amounts of up to $200,000,000, principal amount of its 6.375%
Series C Senior Notes due 2008 (the "Old Securities") for equal
principal amounts of its 6.375% Series C Exchange Senior Notes
due 2008 (the "New Securities"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a
prospectus, dated ___________, 1998 (the "Prospectus"), proposed
to be distributed to all holders of the Old Securities. The Old
Securities and the New Securities are collectively referred to
herein as the "Securities". Capitalized terms used herein and
not defined shall have the meanings ascribed to them in the
Prospectus or the Letter of Transmittal to be delivered with the
Prospectus to record holders of the Old Securities ("Letter of
Transmittal").
The Company hereby appoints The Bank of New York to act
as exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" shall refer to
The Bank of New York.
The Exchange Offer is expected to be commenced by the
Company on or about _____________, 1998. The Letter of
Transmittal accompanying the Prospectus (or in the case of book-
entry securities, the ATOP system) is to be used by the holders
of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old
Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York
City time, on _____________, 1998 or on such later date or time
to which the Company may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the
Exchange Offer by giving oral (confirmed in writing) or written
notice to you before 9:00 A.M., New York City time, on the
business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend, in
any way not inconsistent with the Registration Rights Agreement,
or terminate the Exchange Offer, and not to accept for exchange
any Old Securities not theretofore accepted for exchange, upon
the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption "The Exchange Offer
-Conditions." The Company will give oral (confirmed in writing)
or written notice of any amendment, termination or nonacceptance
to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are
to act in accordance with the following instructions:
1. You will perform such duties and only such duties
as are specifically set forth in the section of the Prospectus
captioned "The Exchange Offer" and in the Letter of Transmittal
or as specifically set forth herein; provided, however, that in
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no way will your general duty to act in good faith and without
gross negligence be discharged by the foregoing.
2. You will establish an account with respect to the
Old Securities at The Depository Trust Company (the "Book-Entry
Transfer Facility") for purposes of the Exchange Offer within two
business days after the date of the Prospectus, and any financial
institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Old
Securities by causing the Book-Entry Transfer Facility to
transfer such Old Securities into your account in accordance with
the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of
Transmittal and certificates for Old Securities (or confirmation
of book-entry transfer into your account at the Book-Entry
Transfer Facility) and any other documents delivered or mailed to
you by or for holders of the Old Securities to ascertain whether:
(i) the Letters of Transmittal and any such other documents are
duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Old Securities have
otherwise been properly tendered. In each case where the Letter
of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old
Securities are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other
action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President, Senior Vice
President, Executive Vice President, any Vice President or the
Treasurer of the Company (such approval, if given orally, to be
confirmed in writing) or any other party designated by such an
officer in writing, you are authorized to waive any
irregularities in connection with any tender of Old Securities
pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set
forth in the Letter of Transmittal and in the section of the
Prospectus captioned "The Exchange Offer -Procedures for
Tendering", and Old Securities shall be considered properly
tendered to you only when tendered in accordance with the
procedures set forth therein. Notwithstanding the provisions of
this paragraph 5, Old Securities which the President, Senior Vice
President, Executive Vice President, any Vice President or the
Treasurer of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any
Old Securities received subsequent to the Expiration Date and
accept its instructions with respect to disposition of such Old
Securities.
7. You shall accept tenders:
a. in cases where the Old Securities are
registered in two or more names only if signed by all named
holders;
b. in cases where the signing person (as
indicated on the Letter of Transmittal) is acting in a
fiduciary or a representative capacity only when proper
evidence of his or her authority so to act is submitted; and
c. from persons other than the registered holder
of Old Securities provided that customary transfer
requirements, including any applicable transfer taxes, are
fulfilled.
You shall accept partial tenders of Old Securities when so
indicated and as permitted in the Letter of Transmittal and
deliver certificates for Old Securities to the transfer agent for
split-up and return any untendered Old Securities to the holder
(or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the
conditions to the Exchange Offer, the Company will notify you
(such notice if given orally, to be confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old
Securities properly tendered and you, on behalf of the Company,
will exchange such Old Securities for New Securities and cause
such Old Securities to be cancelled. Delivery of New Securities
will be made on behalf of the Company by you at the rate of
$1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities
tendered promptly after notice (such notice if given orally, to
be confirmed in writing) of acceptance of said Old Securities by
the Company; provided, however, that in all cases, Old Securities
tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Old
Securities (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees and any other
required documents. You shall issue New Securities only in
denominations of $5,000 or any integral multiple of $1,000 in
excess thereof.
9. Tenders pursuant to the Exchange Offer are
irrevocable, except that, subject to the terms and upon the
conditions set forth in the Prospectus and the Letter of
Transmittal, Old Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any
Old Securities tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the
Company not to exchange any Old Securities tendered shall be
given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company
does not accept for exchange all or part of the Old Securities
tendered because of an invalid tender, the occurrence of certain
other events set forth in the Prospectus under the caption "The
Exchange Offer -Conditions" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Old Securities (or
effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who
deposited them (or effected such book-entry transfer).
12. All certificates for reissued Old Securities,
unaccepted Old Securities or for New Securities shall be
forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any person
to solicit tenders.
14. As Exchange Agent hereunder you:
a. shall have no duties or obligations other
than as provided in paragraph 1, those specifically set
forth herein or as may be subsequently agreed to in writing
by you and the Company;
b. will be regarded as making no representations
and having no responsibilities as to the validity,
sufficiency, value or genuineness of any of the certificates
or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to
and will make no representation as to the validity, value or
genuineness of the Exchange Offer;
c. shall not be obligated to take any legal
action hereunder which might in your reasonable judgment
involve any expense or liability, unless you shall have been
furnished with reasonable indemnity;
d. may reasonably rely on and shall be protected
in acting in reliance upon any certificate, instrument,
opinion, notice, letter, telegram or other document or
security delivered to you and reasonably believed by you to
be genuine and to have been signed by the proper party or
parties;
e. may reasonably act upon any tender,
statement, request, comment, agreement or other instrument
whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which you
shall in good faith believe to be genuine or to have been
signed or represented by a proper person or persons;
f. may rely on and shall be protected in acting
upon written or oral instructions from any officer of the
Company;
g. may consult with your counsel with respect to
any questions relating to your duties and responsibilities
and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or
opinion of such counsel; and
h. shall not advise any person tendering Old
Securities pursuant to the Exchange Offer as to whether to
tender or refrain from tendering any portion of Old
Securities or as to the market value or decline or
appreciation in market value of any Old Securities.
15. You shall take such action as may from time to
time be requested by the Company or its counsel (and such other
action as you may reasonably deem appropriate) to furnish copies
of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery (as described in the Prospectus) or such
other forms as may be approved from time to time by the Company,
to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange
Offer, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such
documents at your request. All other requests for information
relating to the Exchange Offer shall be directed to the Company,
Attention: Treasurer.
16. You shall advise by facsimile transmission or
telephone, and promptly thereafter confirm in writing to the
Treasurer of the Company and such other person or persons as it
may request, daily (and more frequently during the week
immediately preceding the Expiration Date and if otherwise
requested) up to and including the Expiration Date, as to the
principal amount of Old Securities which have been tendered
pursuant to the Exchange Offer and the items received by you
pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and
cooperate in making available to, the Company or any such other
person or persons upon oral request made from time to time prior
to the Expiration Date of such other information as it or he or
she reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company and such person as
the Company may request of access to those persons on your staff
who are responsible for receiving tenders, in order to ensure
that immediately prior to the Expiration Date the Company shall
have received information in sufficient detail to enable it to
decide whether to extend the Exchange Offer. You shall prepare a
final list of all persons whose tenders were accepted, the
aggregate principal amount of Old Securities tendered and the
aggregate principal amount of Old Securities accepted and deliver
said list to the Company.
17. Letters of Transmittal, book-entry confirmations
and Notices of Guaranteed Delivery shall be stamped by you as to
the date and the time of receipt thereof and shall be preserved
by you for a period of time at least equal to the period of time
you preserve other records pertaining to the transfer of
securities. You shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company.
18. You hereby expressly waive any lien, encumbrance
or right of set-off whatsoever that you may have with respect to
funds deposited with you for the payment of transfer taxes by
reasons of amounts, if any, borrowed by the Company, or any of
its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder,
you shall be entitled to such compensation as set forth on
Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus
and the Letter of Transmittal and further acknowledge that you
have examined each of them. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
21. The Company covenants and agrees to indemnify and
hold you harmless in your capacity as Exchange Agent hereunder
against any loss, liability, cost or expense, including
attorneys' fees and expenses, arising out of or in connection
with any act, omission, delay or refusal made by you in reliance
upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document
reasonably believed by you to be valid, genuine and sufficient
and in accepting any tender or effecting any transfer of Old
Securities reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept
any tenders or effect any transfer of Old Securities; provided,
however, that the Company shall not be liable for indemnification
or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful
misconduct. In no case shall the Company be liable under this
indemnity with respect to any claim against you unless the
Company shall be notified by you, by letter or by facsimile
confirmed by letter, of the written assertion of a claim against
you or of any other action commenced against you, promptly after
you shall have received any such written assertion or notice of
commencement of action. The Company shall be entitled to
participate at its own expense in the defense of any such claim
or other action, and, if the Company so elects, the Company shall
assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any
such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so
long as the Company shall retain counsel satisfactory to you to
defend such suit, and so long as you shall have not determined,
in your reasonable judgment, that a conflict of interest exists
between you and the Company.
22. You shall arrange to comply with all requirements
under the tax laws of the United States, including those relating
to missing Tax Identification Numbers, and shall file any
appropriate reports with the Internal Revenue Service. The
Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer
Identification Number or required certification. Such funds will
be turned over to the Internal Revenue Service in accordance with
applicable regulations.
23. You shall deliver or cause to be delivered, in a
timely manner to each governmental authority to which any
transfer taxes are payable in respect of the exchange of Old
Securities, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of
any and all transfer taxes payable in respect of the exchange of
Old Securities; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received
by you.
24. This Agreement and your appointment as Exchange
Agent hereunder shall be construed and enforced in accordance
with the laws of the State of New York applicable to agreements
made and to be performed entirely within such state, and without
regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
26. In case any provision of this Agreement 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.
27. This Agreement shall not be deemed or construed to
be modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. This
Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices,
requests and other communications to any party hereunder shall be
in writing (including facsimile or similar writing) and shall be
given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company:
Texas Utilities Company
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Treasurer
If to the Exchange Agent:
The Bank of New York
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto,
this Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Paragraphs 19, 21 and 23
shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the
Company any certificates for Securities, funds or property then
held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as
of the date hereof.
Please acknowledge receipt of this Agreement and
confirm the arrangements herein provided by signing and returning
the enclosed copy.
TEXAS UTILITIES COMPANY
By:______________________
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________
Name:
Title:
SCHEDULE I
FEES