Exhibit 1(c)
TEXAS UTILITIES ELECTRIC COMPANY
Unsecured Debt Securities
UNDERWRITING AGREEMENT
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[DATE]
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Electric Company, a
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Texas corporation (the "Company"), proposes to issue and sell
severally to you (the "Underwriters"), the Company's unsecured
debt securities of the series designation, with the terms and in
the principal amount specified in Schedule I hereto (the "Debt
Securities").
2. Description of Debt Securities. The Company
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proposes to issue the Debt Securities under its Indenture (For
Unsecured Debt Securities), dated as of _________ __, 1997, to
The Bank of New York, Trustee (the "Indenture Trustee"), said
Indenture, together with any amendments or supplements thereto,
being hereinafter referred to as the "Indenture".
3. Representations and Warranties of the Company. The
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Company represents and warrants to the several Underwriters that:
(a) It has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the
"Original Registration Statement") on Form S-3, including a
prospectus, on September 15, 1994 (Registration No. 33-
83976) for the registration of $500,000,000 principal amount
of the Company's First Mortgage Bonds under the Securities
Act of 1933, as amended (the "Securities Act"). Such regis-
tration statement was declared effective by the Commission
on September 26, 1994. The Company also filed with the
Commission post-effective amendment no. 1 (the "Post-
Effective Amendment") to the Original Registration Statement
on July ___, 1997 to include the Debt Securities in the
securities registered with the Commission pursuant to the
Original Registration Statement. The Post-Effective
Amendment was declared effective by the Commission on [
]. References herein to the term "Registration
Statement" as of any date shall be deemed to refer to the
Original Registration Statement, as amended or supplemented
to such date, including all documents incorporated by
reference therein as of such date pursuant to Item 12 of
Form S-3 ("Incorporated Documents"). References herein to
the term "Prospectus" as of any given date shall be deemed
to refer to the prospectus forming a part of the Post-
Effective Amendment, as amended or supplemented as of such
date, including all Incorporated Documents as of such date.
References herein to the term "Effective Date" shall be
deemed to refer to the time and date the Post Effective
Amendment was declared effective. The Company will not file
any amendment to the Registration Statement or supplement to
the Prospectus on or after the date of this Agreement and
prior to the Closing Date, as hereinafter defined, without
prior notice to the Underwriters, or to which Counsel for
the Underwriters shall reasonably object in writing. For the
purposes of this Agreement, any Incorporated Document filed
with the Commission on or after the date of this agreement
and prior to the Closing Date, as hereinafter defined,
shall be deemed an amendment or supplement to the
Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus and the Indenture will fully comply in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and the applicable rules and regu-
lations of the Commission thereunder; on the Effective Date
the Registration Statement did not, and at the Closing Date,
as hereinafter defined, the Registration Statement will not,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; on
the Effective Date the Prospectus did not, and at the
Closing Date, as hereinafter defined, and on the date it is
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 of the General Rules and Regulations of
the Securities Act ("Rule 424"), the Prospectus will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and on said dates the
Incorporated Documents, taken together as a whole, fully
complied or will comply in all material respects with the
applicable provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the applicable
rules and regulations of the Commission thereunder, and,
when read together with the Prospectus on said dates did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information
furnished in writing to the Company by, or on behalf of, any
Underwriter for use in connection with the preparation of
the Registration Statement or the Prospectus or to any
statements in or omissions from the Statement of Eligibility
and Qualification under the Trust Indenture Act, or
amendments thereto, of the Indenture Trustee under the
Indenture.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
4. Purchase and Sale. On the basis of the
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representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall sell
to each of the Underwriters, and each Underwriter shall purchase
from the Company, at the time and place herein specified,
severally and not jointly, the respective principal amount of the
Debt Securities set forth opposite the name of such Underwriter
in Schedule II attached hereto, at the purchase price or prices
set forth in Schedule I hereto.
5. Time and Place of Closing. Delivery of the Debt
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Securities against payment therefor by certified or official bank
check or checks payable to the Company or its order in
funds shall be made at the office of Xxxx & Priest
LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New
York Time, on , or at such other place, time and date
as shall be agreed upon in writing by the Company and you or
established in accordance with the following paragraph. The hour
and date of such delivery and payment are herein called the
"Closing Date". The Debt Securities shall be delivered to you
for the respective accounts of the Underwriters in fully
registered form in such denominations of $1,000 or any multiple
thereof and registered in such names as you shall reasonably
request in writing not later than the close of business on the
second business day prior to the Closing Date, or, to the extent
not so requested, registered in the names of the respective
Underwriters in such authorized denominations as the Company
shall determine. The Company agrees to make the Debt Securities
available to you for checking purposes not later than 10:00 A.M.,
New York Time, on the last business day preceding the Closing
Date at the office of .
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the principal amount of the
Debt Securities which such Underwriter has agreed to purchase and
pay for hereunder, the Company shall immediately give notice to
the other Underwriters of the default of such Underwriter, and
the other Underwriters shall have the right within 24 hours after
the receipt of such notice to determine to purchase, or to
procure one or more others, who are members of the National
Association of Securities Dealers, Inc. ("NASD") (or, if not
members of the NASD, who are not eligible for membership in the
NASD and who agree (i) to make no sales within the United States,
its territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply
with the NASD's Rules of Fair Practice) and satisfactory to the
Company, to purchase, upon the terms herein set forth, the
principal amount of the Debt Securities which the defaulting
Underwriter had agreed to purchase. If any non-defaulting
Underwriter or Underwriters shall determine to exercise such
right, such Underwriter or Underwriters shall give written notice
to the Company of the determination in that regard within 24
hours after receipt of notice of any such default, and thereupon
the Closing Date shall be postponed for such period, not
exceeding three business days, as the Company shall determine.
If in the event of such a default no non-defaulting Underwriter
shall give such notice then this Agreement may be terminated by
the Company, upon like notice given to the non-defaulting
Underwriters, within a further period of 24 hours. If in such
case the Company shall not elect to terminate this Agreement it
shall have the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to
purchase and pay for the respective principal amounts of
Debt Securities which they had severally agreed to purchase
hereunder as hereinabove provided and, in addition, the
principal amounts of Debt Securities which the defaulting
Underwriter shall have so failed to purchase up to a
principal amount thereof equal to one-ninth (1/9) of the
respective principal amounts of the Debt Securities which
such non-defaulting Underwriters have otherwise agreed to
purchase hereunder, and/or
(b) to procure one or more persons, who are members of
the NASD (or, if not members of the NASD, who are not
eligible for membership in the NASD and who agree (i) to
make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the princi-
pal amount of the Debt Securities which such defaulting
Underwriter had agreed to purchase or that portion thereof
which the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday which
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees that:
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(a) It will promptly deliver to each of you a signed
copy of the Original Registration Statement as originally
filed or, to the extent a signed copy is not available, a
conformed copy, certified by an officer of the Company to be
in the form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto,
including the Post Effective Amendment.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as soon as practicable and advise you of the issuance of
any stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings
therefor of which the Company shall have received notice.
The Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as in the opinion of Counsel for the Underwriters a
prospectus covering the Debt Securities is required by law
to be delivered in connection with sales by an Underwriter
or dealer, any event relating to or affecting the Company or
of which the Company shall be advised in writing by you
shall occur which in the Company's reasonable opinion should
be set forth in a supplement to, or an amendment of, the
Prospectus in order to make the Prospectus not misleading in
the light of the circumstances when it is delivered to a
purchaser, the Company will, at its expense, amend or
supplement the Prospectus by either (i) preparing and
furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an
appropriate filing pursuant to Section 13 of the Exchange
Act, which will supplement or amend the Prospectus so that,
as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the
expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver
a prospectus after the expiration of nine months from the
date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424, the Company, upon
your request, will furnish to you, at the expense of such
Underwriter, a reasonable quantity of a supplemental
prospectus or supplements to the Prospectus complying with
Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Debt Securities for offer and sale under the blue-sky laws
of such jurisdictions as you may designate, provided that
the Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be
unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Debt Securities as provided in Section 5 hereof, (iii)
the qualification of the Debt Securities under blue-sky laws
(including counsel fees not to exceed $7,500), and (iv) the
printing and delivery to the Underwriters of reasonable
quantities of the Registration Statement and, except as
provided in Section 6(d) hereof, of the Prospectus. The
Company shall not, however, be required to pay any amount
for any expenses of yours or any of the Underwriters, except
that, if this Agreement shall be terminated in accordance
with the provisions of Section 7, 8 or 10 hereof, the
Company will reimburse you for the fees and disbursements of
Counsel for the Underwriters, whose fees and disbursements
the Underwriters agree to pay in any other event, and will
reimburse the Underwriters for their reasonable out-of-
pocket expenses, in an aggregate amount not exceeding
$5,000, incurred in contemplation of the performance of this
Agreement. The Company shall not in any event be liable to
any of the several Underwriters for damages on account of
loss of anticipated profits.
7. Conditions of Underwriters' Obligations. The
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obligations of the Underwriters to purchase and pay for the Debt
Securities shall be subject to the accuracy of the rep-
resentations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to
be performed hereunder prior to the Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 6:00 P.M., New York Time, on the second
business day after the date of this Agreement, or such other
time and date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P., General Counsel for
the Company, Xxxx & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, Xxxxxx & Xxxxxxx, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV and V hereto (i)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Debt Securities shall be supplemented or amended after the
Prospectus shall have been filed with, or transmitted for
filing to, the Commission pursuant to Rule 424, with any
changes therein necessary to reflect such supplementation or
amendment.
(d) On and as of the date of this Agreement and on and
as of the Closing Date you shall have received from Deloitte
& Touche LLP a letter to the effect that (i) they are
independent certified public accountants with respect to the
Company, within the meaning of the Securities Act and the
applicable published rules and regulations thereunder, (ii)
in their opinion, the financial statements audited by them
and included or incorporated by reference in the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and
the published rules and regulations thereunder, (iii) on the
basis of a reading of the unaudited amounts of operating
revenues and net income included or incorporated by
reference in the Prospectus and the related financial
statements from which these amounts were derived, the latest
available unaudited financial statements of the Company and
the minute books of the Company and inquiries of officers of
the Company who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance
with generally accepted auditing standards and would not
necessarily reveal matters of significance with respect to
the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention which caused
them to believe that (A) the unaudited financial statements
incorporated by reference in the Prospectus were not
determined in accordance with generally accepted accounting
principles applied on a basis substantially consistent with
that of the corresponding amounts in the latest available
audited financial statements, (B) the unaudited amounts of
operating revenues and net income of the Company included or
incorporated by reference in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of
income incorporated by reference in the Prospectus, (C) for
the twelve months ended as of the date of the latest
available financial statements of the Company, there were
any decreases in operating revenues or net income as
compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior
to the date of such letter, there was any change in the
capital stock of the Company, short-term bank loans,
commercial paper, notes payable to Texas Utilities Company
or long-term debt of the Company or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
that the Prospectus discloses have occurred or may occur or
which are occasioned by the declaration of a regular
quarterly dividend or the acquisition of long-term debt for
sinking fund purposes, or which are described in such
letter, and (iv) they have compared the dollar amounts (or
percentages or ratios derived from such dollar amounts) and
other financial information included or incorporated by
reference in the Registration Statement and the Prospectus
as reasonably requested by you (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company subject to the internal controls of the
Company's accounting system or are derived indirectly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter, and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(e) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and, since such dates, there shall not have been
any material transaction entered into by the Company, in
each case other than transactions in the ordinary course of
business and transactions contemplated by the Registration
Statement or Prospectus and at the Closing Date you shall
have received a certificate to such effect dated the Closing
Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Debt Securities shall have
been satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated with the consent of Underwriters which have agreed to
purchase in the aggregate 50% or more of the principal amount of
Debt Securities upon notice thereof to the Company. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
8. Conditions of Company's Obligations. The obligation
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of the Company to deliver the Debt Securities shall be subject to
the conditions that the Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 6:00 P.M., New York Time, on the second business day
after the date of this Agreement or such other time and date as
may be approved by the Company, and no stop order suspending the
effectiveness of the Registration Statement shall be in effect at
the Closing Date and no proceedings for that purpose shall be
pending before, or threatened by, the Commission at the Closing
Date. In case these conditions shall not have been fulfilled,
this Agreement may be terminated by the Company upon notice
thereof to you. Any such termination shall be without liability
of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
9. Indemnification.
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(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or
prospectus prior to the Effective Date, or in the
Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading; provided, however, that the
indemnity agreement contained in this Section 9 shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished in writing
to the Company by any Underwriter, through you or otherwise,
for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from that part of the
Registration Statement which shall constitute the Statement
of Eligibility and Qualification under the Trust Indenture
Act of the Indenture Trustee under the Indenture; and
provided further, that the indemnity agreement contained in
this Section 9 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Debt
Securities to any person if a copy of the Prospectus
(exclusive of the Incorporated Documents) shall not have
been given or sent to such person by or on behalf of such
Underwriter with or prior to the written confirmation of the
sale involved unless, with respect to the delivery of any
amendment or supplement to the Prospectus, the alleged
omission or alleged untrue statement was not corrected in
such amendment or supplement at the time of such written
confirmation. The indemnity agreement of the Company
contained in this Section 9 and the representations and
warranties of the Company contained in Section 3 hereof
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of
the Debt Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its officers and directors, and each
person who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished in writing to the Company by or on
behalf of such Underwriter, through you or otherwise, for
use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Company in writing expressly for use in the Prospectus (i)
the statements relating to offerings by the Underwriters on
the cover page, (ii) the statements in the first paragraph
on page S-2 concerning stabilization and over allotment by
the Underwriters, and, (iii) under "Underwriting," the list
of underwriters and statements in the
paragraphs. The indemnity agreement of the respective
Underwriters contained in this Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made
by or on behalf of the Company, its directors or its
officers, any such Underwriter, or any such controlling
person, and shall survive the delivery of the Debt
Securities.
(c) The Company and the several Underwriters each
shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder,
but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel
chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall
be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of
such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them; provided, however,
if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for
the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in
the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the
indemnifying party shall not be liable for the expenses of
more than one separate counsel representing the indemnified
parties who are parties to such action).
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect the
relative fault of each indemnifying party on the one hand
and the indemnified party on the other in connection with
the statements or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, as well
as any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
above.
10. Termination. This Agreement may be terminated, at
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any time prior to the Closing Date, by you with the consent of
the Underwriters which have agreed to purchase in the aggregate
50% or more of the aggregate principal amount of the Debt
Securities if (a) after the date hereof and at or prior to the
Closing Date there shall have occurred any general suspension of
trading in securities on the New York Stock Exchange or there
shall have been established by the New York Stock Exchange or by
the Commission or by any federal or state agency or by the deci-
sion of any court, any general limitation on prices for such
trading or any general restrictions on the distribution of
securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any new
material (i) outbreak of hostilities or (ii) other national or
international calamity or crisis, including, but not limited to,
an escalation of hostilities which existed prior to the date of
this Agreement, and the effect of any such event specified in
clause (a) or (b) above on the financial markets of the United
States shall be such as to make it impracticable, in the
reasonable judgment of the Underwriters, for the Underwriters to
enforce contracts for the sale of the Debt Securities. This
Agreement may also be terminated at any time prior to the Closing
Date by you with the consent of the Underwriters which have
agreed to purchase in the aggregate 50% or more of the principal
amount of the Debt Securities, if, in your reasonable judgment,
the subject matter of any amendment or supplement to the
Registration Statement or the Prospectus (other than an amendment
or supplement relating solely to the activity of any Underwriter
or Underwriters) prepared and issued by the Company after the
effectiveness of this Agreement shall have disclosed a material
adverse change in the business, property or financial condition
of the Company which has materially impaired the marketability of
the Debt Securities. Any termination hereof pursuant to this
Section 10 shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
-------------
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement shall inure to the benefit of the Company,
the several Underwriters and, with respect to the provisions of
Section 9 hereof, each director, officer and controlling person
referred to in said Section 9, and their respective successors.
Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this
Agreement. The term "successor" as used herein shall not include
any purchaser, as such purchaser, of any of the Debt Securities
from any of the several Underwriters.
12. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: Treasurer.
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
TEXAS UTILITIES ELECTRIC COMPANY
By _____________________________
Accepted and delivered as of
the date first above written
BY
By _______________________
SCHEDULE I
----------
Underwriting Agreement dated:
Underwriters:
Securities:
Designation:
Principal Amount:
Indenture dated as of:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
SCHEDULE II
-----------
TEXAS UTILITIES ELECTRIC COMPANY
UNSECURED DEBT SECURITIES
Name Principal Amount
---- ----------------
SCHEDULE III
[Letterhead of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.]
[Date]
c/o
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Electric Company (the "Company") in connection with the issuance
and sale of its in an aggregate principal amount
of $ (the "Debt Securities") pursuant to the
Underwriting Agreement dated among the Company
and you (the "Underwriting Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Debt Securities. We have also examined such
other documents and satisfied ourselves as to such other matters
as we have deemed necessary as a basis for the conclusions of law
contained in the opinions enumerated below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
deemed appropriate, on certificates of public officials. We have
relied upon a certificate of the Indenture Trustee as to the
authentication of the Debt Securities. In our examination we
have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a public utility corporation duly
authorized by its articles of incorporation, as amended, to
conduct the business which it is now conducting, is subject, as
to rates and services, to the jurisdiction of certain
authorities, as set forth in the Prospectus, and holds valid and
subsisting franchises, licenses and permits authorizing it to
carry on the utility business in which it is engaged.
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
3. The Indenture has been duly qualified under the
Trust Indenture Act.
4. The Debt Securities and the Indenture have been
duly authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and the
Debt Securities and the Indenture are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity.
5. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Certain Terms of
the Offered Securities", insofar as they purport to constitute
summaries of the terms of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
6. Other than as stated, referred to or incorporated
by reference in the Registration Statement and the Prospectus,
there are no material pending legal proceedings to which the
Company is a party or of which property of the Company is the
subject which depart from the ordinary routine litigation
incident to the kind of business conducted by the Company, and to
our best knowledge no such proceedings are contemplated.
7. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with (or
transmitted for filing to) the Commission pursuant to Rule 424
under the Securities Act, (except for financial statements and
schedules and financial and statistical data as to which we do
not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1) complied as
to form in all material respects with the applicable requirements
of the Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act.
8. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debt Securities.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference), we had discussions with certain of its officers
and representatives, with other counsel for the Company, with
Deloitte & Touche LLP. the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 5 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for that part of
the Registration Statement that constitutes the Form T-1) (i) the
Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus, at
the time it was filed with (or transmitted for filing to) the
Commission pursuant to Rule 424 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of Xxxx & Priest LLP, New York,
New York, of Counsel to the Company.
Very truly yours,
XXXXXXX, XXXXXXXX &
XXXXXXXXXX, L.L.P.
By:_________________________
A Partner
SCHEDULE IV
[Letterhead of Xxxx & Priest LLP]
[Date]
c/o
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Electric
Company (the "Company") in connection with the issuance and sale
of its in an aggregate principal amount of
$ (the "Debt Securities") pursuant to the Underwriting
Agreement dated among the Company and you (the
"Underwriting Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Debt Securities. We have also examined such
other documents and satisfied ourselves as to such other matters
as we have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials. We
have relied upon a certificate of the Indenture Trustee as to the
authentication of the Debt Securities. In our examination we
have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these transactions
and with the affairs and properties of the Company generally, we
are of the opinion that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
2. The Indenture has been duly qualified under the Trust
Indenture Act;
3. The Debt Securities and the Indenture have been duly
authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and the
Debt Securities and the Indenture are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity;
4. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Certain Terms of
the Offered Securities", insofar as they purport to constitute
summaries of the terms of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects;
5. The Registration Statement, as of the Effective Date,
and the Prospectus, at the time it was filed with (or transmitted
for filing to) the Commission pursuant to Rule 424 under the
Securities Act, (except as to the financial statements and
schedules and other financial and statistical data contained
therein as to which we do not express any belief and except for
that part of the Registration Statement that constitutes the Form
T-1) complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder;
the Incorporated Documents (except as to the financial statements
and schedules and other financial and statistical data contained
therein, as to which we do not express any belief), at the time
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and
the applicable instructions, rules and regulations of the
Commission thereunder; and the Registration Statement has become
and is effective under the Securities Act and, to our best
knowledge, no proceedings for a stop order with respect thereto
are pending or threatened under Section 8 of the Securities Act;
and
6. No other approval, authorization, consent or order of
any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debt Securities.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference) we had discussions with certain of its officers and
representatives, with other counsel for the Company, with
Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 4 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for that part of
the Registration Statement that constitutes the Form T-1) (i) the
Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus, at
the time it was filed with (or transmitted for filing to) the
Commission pursuant to Rule 424 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
XXXX & PRIEST LLP
SCHEDULE V
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Date]
c/o
Ladies and Gentlemen:
We have acted as counsel to you in connection with your
several purchases from Texas Utilities Electric Company (the
"Company") of its , in an aggregate
principal amount of $ (the "Debt Securities"), pursuant
to the Underwriting Agreement, dated , between you
and the Company (the "Underwriting Agreement").
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx,
L.L.P., of Dallas, Texas, General Counsel for the Company, as to
the matters covered in such opinion relating to Texas law. We
have reviewed such opinion and believe that it is satisfactory
and that you and we are justified in relying thereon. We have
also reviewed the opinion of Xxxx & Priest LLP required by
paragraph (c) of Section 7 of the Underwriting Agreement, and we
believe such opinion to be satisfactory.
We have, in addition, examined the documents described in
the list of closing papers as having been delivered to you at the
closing and such other documents and satisfied ourselves as to
such other matters as we have deemed necessary in order to enable
us to express this opinion. We have not examined the Debt
Securities, except specimens thereof, and have relied upon a
certificate of the Trustee as to the authentication thereof. As
to various questions of fact material to this opinion, we have
relied upon representations of the Company and statements in the
Registration Statement hereinafter mentioned. In such
examination we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us and the
genuineness and conformity to original documents of documents
submitted to us as certified or photostatic copies.
"Registration Statement", "Prospectus" and "Effective Date" as
used herein have the same meanings as the same words in the
Underwriting Agreement.
Based on the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
2. The Indenture is duly qualified under the 1939 Act.
3. The Debt Securities and the Indenture have been duly
authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and
the Debt Securities and the Indenture are legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the effect
of bankruptcy, insolvency, reorganization, fraudulent
conveyance, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity.
4. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Certain Terms
of the Offered Securities", insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents
in all material respects.
5. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the blue-sky laws of any jurisdiction) is
legally required for the authorization of the issue and sale
by the Company of the Debt Securities as contemplated in the
Underwriting Agreement.
6. The Registration Statement, at the Effective Date
thereof, and the Prospectus, at the time it was filed with or
transmitted for filing to the Commission pursuant to Rule 424
(except in each case as to financial statements and schedules
and other financial and statistical data contained or
incorporated by reference therein and except for that part of
the Registration Statement that constitutes the Form T-1, upon
which we express no opinion), complied as to form in all
material respects with the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 4 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of its officers and representatives,
with counsel for the Company, with Deloitte & Touche LLP, the
independent public accountants who audited certain of the
financial statements incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your representatives. Our examination of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that at
the Effective Date the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time it was
filed with or transmitted for filing to the Commission pursuant
to Rule 424, or at the date hereof, included or includes any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data contained or incorporated by reference in the Registration
Statement or the Prospectus or as to that part of the
Registration Statement that constitutes the Form T-1.
This opinion is given to you solely for your use in
connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon by any other
person or for any other purpose.
Very truly yours,
WINTHROP, STIMSON, XXXXXX
& XXXXXXX
