EXHIBIT (d)(11)
TXU CORP.
SERIES K SENIOR NOTES DUE NOVEMBER 16, 2006
August 11, 2004
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This supplements a Remarketing
Agreement, dated October 16, 2001, by and among TXU Corp., a Texas corporation
("the Company"), The Bank of New York, not individually but solely as purchase
contract agent, trustee and attorney-in-fact of the holders of the Purchase
Contracts, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx, Sachs
& Co. (the "Remarketing Agreement"). On July 29, 2004, Xxxxxxx Xxxxx & Co. was
replaced as remarketing agent and Banc of America Securities LLC was appointed
by the Company as remarketing agent and reset agent ("Appointment Letter"). The
Remarketing Agreement, as hereby supplemented and as supplemented by the
Appointment Letter, is referred to as the "Agreement", and the terms hereof
together with the terms of the Remarketing Agreement and the Appointment Letter
constitute the entire agreement among the parties with respect to the
Remarketing of the Subject Senior Notes set forth in Schedule I hereto. Each of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Banc of America
Securities LLC (each, a "Remarketing Agent" and collectively, the "Remarketing
Agents") hereby agrees, subject to the terms and conditions set forth herein, to
use its reasonable efforts to remarket the Subject Senior Notes. All such
Subject Senior Notes have been tendered for remarketing by the holders thereof,
or are the pledged Subject Senior Notes of holders of Corporate Units.
1. Definitions. Terms defined in the Remarketing Agreement are used
herein with the meaning ascribed to them therein. Capitalized terms used and not
defined in this Agreement or the Remarketing Agreement shall have the meanings
assigned to them in the Purchase Contract Agreement, the Pledge Agreement, the
Underwriting Agreement and the Indenture, as applicable.
2. Representations and Warranties of the Company. The Company
represents and warrants to the Remarketing Agents that:
(a) The Company, TXU Capital III and TXU Capital IV have filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 on October 5, 2001 (Registration Nos. 333-71004,
000-00000-00 and 333-71004-02) for the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of
$800,000,000 aggregate amount of (i) the Company's Common Stock,
without par value, and related Preference Stock purchase rights, (ii)
the Company's Preference Stock, $25 par value, (iii) the Company's
unsecured debt securities ("Debt Securities"), (iv) contracts to
purchase shares of Common Stock ("Stock Purchase Contracts"), (v)
stock purchase units, each representing ownership of a Stock Purchase
Contract and Debt Securities or obligations of third parties ("Stock
Purchase Units") and (vi) the preferred trust securities (the "Trust
Securities") of TXU Capital III and TXU Capital IV, an equal principal
amount of the Company's junior subordinated debentures and guarantees
and other obligations of the Company in respect of such Trust
Securities. Such registration statement ("Registration Statement No.
333-71004") was declared effective by the Commission on October 5,
2001. In addition, the Company, TXU Capital III and TXU Capital IV
have filed with the Commission a registration statement on Form S-3 on
July 3, 2001 (Registration Nos. 333-64504, 000-00000-00 and
333-64504-02) for the registration of $1,200,000,000 aggregate amount
of (i) the Company's Common Stock, without par value, and related
Preference Stock purchase rights, (ii) the Company's Preference Stock,
$25 par value, (iii) the Company's Debt Securities, (iv) the Company's
Stock Purchase Contracts, (v) the Company's Stock Purchase Units and
(vi) Trust Securities of TXU Capital III and TXU Capital IV, an equal
principal amount of the Company's junior subordinated debentures and
guarantees and other obligations of the Company in respect of such
Trust Securities. Such registration statement ("Registration Statement
No. 333-64504") was declared effective by the Commission on September
21, 2001. References herein to the term "Registration Statement" as of
any date shall be deemed to refer to each of Registration Statement
No. 333-71004 and Registration Statement No. 333-64504, each 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"). On October 16, 2001, the
Company issued and sold 17,500,000 Equity Units, initially consisting
of 17,500,000 Corporate Units (the "Initial Equity Units Offering").
On October 23, 2001, the Company issued and sold 2,500,000 Equity
Units, initially consisting of 2,500,000 Corporate Units, pursuant to
the exercise by the underwriters of their option in Section 4(b) of
the Underwriting Agreement (the "Option Equity Units Offering" and
together with the Initial Equity Units Offering, the "Equity Units
Offering."). Each Corporate Unit initially consisted of a unit
comprised of (a) a Purchase Contract, (b) beneficial ownership of a
Series K Senior Note due November 16, 2006, having a principal amount
of $25 and (c) beneficial ownership of a Series L Senior Note due
November 16, 2007, having a principal amount of $25. References herein
to the term "Prospectus" as of any given date shall be deemed to refer
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to the combined prospectus filed pursuant to Rule 424 of the General
Rules and Regulations of the Securities Act ("Rule 424") relating to
the Equity Units Offering, dated October 5, 2001, as supplemented by
the prospectus supplement, dated October 10, 2001 and as amended or
supplemented as of such date, including all Incorporated Documents as
of such date and including any prospectus supplement relating to the
Subject Senior Notes. References herein to the term "Effective Date"
shall be deemed to refer to the later of the time and date
Registration Statement No. 333-71004, any post-effective amendment to
Registration Statement No. 333-71004 was declared effective or the
time and date of the filing thereafter of the Company's most recent
Annual Report on Form 10-K if such filing is made prior to the
Remarketing Closing Date set forth in Schedule I hereto (the
"Remarketing Closing Date"). 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 Remarketing Closing
Date without prior notice to the Remarketing Agents, or to which Xxxxx
Xxxxxxxxxx LLP ("Counsel for the Remarketing Agents") 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 Remarketing Closing Date 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
included as part of the Registration Statement fully complied and at
the Remarketing Closing Date, the Registration Statement, the
Prospectus, the Indenture and the Purchase Contract Agreement will
fully comply in all material respects with the applicable provisions
of the Securities Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the applicable rules and regulations
of the Commission thereunder; on the Effective Date, the Registration
Statement did not, and at the Remarketing Closing Date, 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 Remarketing
Closing Date and on the date it is filed with the Commission pursuant
to 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 fully 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, in the light of
the circumstances under which they were made, 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,
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any Remarketing Agent for use in connection with the preparation of
the Registration Statement or the Prospectus or to any statements in
or omissions from the Statements of Eligibility on Form T-1 under the
Trust Indenture Act or amendments thereto filed as exhibits to the
Registration Statement or to any statements or omissions made in the
Registration Statement or the Prospectus relating to The Depository
Trust Company ("DTC") Book-Entry System that are based solely on
information contained in published reports of the DTC.
(c) The Company has been duly incorporated and is validly existing as a
corporation and is in good standing under the laws of the State of
Texas, has the corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and
as set forth in or contemplated by the Prospectus, and is qualified to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have
a material adverse effect on the business, property or financial
condition of the Company and its subsidiaries, considered as a whole.
(d) Each Material Subsidiary (as defined below): (i) has been
incorporated, organized or formed and is validly existing as a
corporation or other legal entity in good standing under the laws of
the jurisdiction of its incorporation, organization or formation; (ii)
has the corporate or other power and authority to own, lease and
operate its properties and to conduct its business as currently
conducted and as set forth in or contemplated by the Prospectus; and
(iii) is qualified as a foreign corporation or other legal entity to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have
a material adverse effect on the business, property or financial
condition of the Company and its subsidiaries, considered as a whole.
Except as otherwise set forth in or contemplated by the Registration
Statement or Prospectus, all of the issued and outstanding shares of
capital stock or other ownership interests of Material Subsidiaries
have been authorized and validly issued, are fully paid and (except
for any directors' qualifying shares) are owned by the Company,
directly or through its subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity except
as permitted by the Indenture. None of the outstanding shares of
capital stock or other ownership interests of Material Subsidiaries
were issued in violation of preemptive or other similar rights arising
by operation of law, under the charter or certificate of organization
or formation, or by-laws or limited liability company agreement or
agreement of limited partnership of any Material Subsidiary or under
any agreement to which the Company or any Material Subsidiary is a
party. "Material Subsidiary" shall mean each of the following
companies: TXU US Holdings Company, TXU Energy Company LLC, TXU
Electric Delivery Company, TXU Generation Company LP, TXU Energy
Retail Company LP, TXU Portfolio Management Company LP, TXU Mining
Company LP and TXU Business Services Company.
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(e) 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, certificate of incorporation,
by-laws or other agreement or instrument to which the Company is now a
party.
(f) This Agreement has been duly authorized, executed and delivered by the
Company which has the necessary power and authority to execute,
deliver and perform its obligations under this Agreement.
(g) The Company (i) is not in violation of its certificate of
incorporation or by-laws or other organizational documents, (ii) is
not in default and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any agreement, indenture or other instrument to which it is a party
or by which it is bound or to which any of its properties is subject,
except for any such defaults that would not, individually or in the
aggregate, have a material adverse effect on the business, property or
financial condition of the Company and its subsidiaries considered as
a whole, or (iii) is not in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property may be subject, except for any such violations that would
not, individually or in the aggregate, have a material adverse effect
on the business, property or financial condition of the Company and
its subsidiaries considered as a whole.
(h) The Indenture has been duly authorized, executed and delivered by the
Company and is a valid and binding instrument, enforceable against the
Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or
affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law). The Indenture (i) complies as to form
with the requirements of the Trust Indenture Act, and (ii) conforms to
the description thereof in the Prospectus.
(i) The Subject Senior Notes have been duly authorized and, when executed
by the Company and authenticated by the Trustee in accordance with the
Indenture, will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). On the Remarketing
Closing Date, the Subject Senior Notes will conform to the description
thereof in the Prospectus. The Company has all requisite corporate
power and authority to deliver the Subject Senior Notes in accordance
with and upon the terms and conditions set forth in this Agreement and
in the Prospectus.
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(j) No approval, authorization, consent or order of any public board or
body (except such as have been already obtained and other than in
connection or in compliance with the provisions of applicable blue-sky
laws or securities laws of any jurisdiction (other than the federal
securities laws of the United States of America), as to which the
Company makes no representations or warranties) is legally required
for the remarketing of the Subject Senior Notes pursuant to this
Agreement.
(k) The financial statements included or incorporated by reference in the
Prospectus, together with the related schedules and notes, present
fairly, in all material respects, the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; except as set forth in the Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
incorporated by reference in the Prospectus present fairly, in all
material respects, in accordance with GAAP the information required to
be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly, in
all material respects, the information shown therein and, except as
set forth in the Prospectus, have been compiled on a basis consistent
with that of the audited financial statements incorporated by
reference in the Prospectus and the assumptions used in preparing the
pro forma financial statements incorporated by reference in the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statements amounts.
(l) Other than as set forth or contemplated in the Prospectus, there is no
litigation or governmental proceeding to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject or which is pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries that could reasonably be expected to, individually or in
the aggregate, result in a material adverse effect on the Company and
its subsidiaries taken as a whole.
(m) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
3. Purchase and Sale; Remarketing Fee. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth or incorporated herein, the Remarketing Agents agree to use their
reasonable efforts to remarket and have remarketed the Subject Senior Notes at a
price of 100.5% of the 3-Year Treasury Portfolio Purchase Price, plus any
accrued and unpaid interest thereon. In connection therewith, under the terms of
the Subject Senior Notes, the registered holder or holders thereof have agreed,
in the manner specified in Section 4 hereof, that the Remarketing Agents shall
6
retain as a Remarketing Fee, 0.25% of the 3-Year Treasury Portfolio Purchase
Price, plus any accrued and unpaid interest.
The Obligations of the Remarketing Agents to use their reasonable
efforts hereunder are joint and not several and neither Remarketing Agent agrees
to purchase or underwrite any Debt Securities not remarketed by it. If fewer
than all of the Subject Senior Notes are remarketed in accordance with the terms
hereof, the Remarketing shall be deemed to have failed as to all Subject Senior
Notes.
4. Delivery and Payment. Delivery of payment for the remarketed
Subject Senior Notes and payment of the Remarketing Fee shall be made on the
Remarketing Closing Date at the location and time specified in Schedule I hereto
(or such later date not later than five business days after such date as the
Remarketing Agents shall designate), which date and time may be postponed by
agreement among the Remarketing Agents, the Company, and the registered holder
or holders of the remarketed Subject Senior Notes. Delivery of the Subject
Senior Notes to be remarketed was made by the Collateral Agent to the
Remarketing Agents on August 10, 2004. Upon a successful Remarketing, the
Remarketing Agents may deduct the Remarketing Fee from the amount of such
Remarketing proceeds in excess of the 3-Year Treasury Portfolio Purchase Price,
plus accrued and unpaid interest, if any, or, if the remarketed Subject Senior
Notes are represented by a Global Security, payment of the Remarketing Fee may
be made by any method of transfer agreed upon by the Remarketing Agents and the
Depositary for the Subject Senior Notes under the Indenture.
5. Covenants of the Company. The Company agrees that:
(a) It will promptly deliver to the Remarketing Agents a signed copy of
the 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.
(b) It will deliver to the Remarketing Agents, as soon as practicable
after the date hereof, as many copies of the Prospectus as of such
date as the Remarketing Agents may reasonably request.
(c) It will cause the Prospectus to be filed with the Commission pursuant
to Rule 424 as soon as practicable and advise the Remarketing Agents
of the issuance of any stop order suspending the effectiveness of the
Registration Statement or the institution of any proceeding 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,
if issued, to obtain the prompt withdrawal or lifting of such order.
(d) If, during such period of time (not exceeding nine months) after the
Prospectus has been filed with the Commission pursuant to Rule 424 as
in the opinion of Counsel for the Remarketing Agents a prospectus
covering the Subject Senior Notes is required by law to be delivered
in connection with sales by any Remarketing Agent or a dealer, any
7
event relating to or affecting the Company or of which the Company
shall be advised in writing by the Remarketing Agents shall occur that
in the Company's reasonable opinion after consultation with Counsel
for the Remarketing Agents should be set forth in a supplement to, or
an amendment of, the Prospectus in order to make the Prospectus not
misleading in 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 the Remarketing
Agents 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 so 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 Remarketing Agents, then such Remarketing
Agent shall assume the expense of preparing and furnishing any such
amendment or supplement. In case any Remarketing Agent is required to
deliver a prospectus after the expiration of nine months from the date
the Prospectus is filed with the Commission pursuant to Rule 424, the
Company, upon such Remarketing Agent's request, will furnish to such
Remarketing Agent, at such Remarketing Agents' expense, 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 Subject Senior Notes for
offer and sale under the blue-sky laws of such jurisdictions as the
Remarketing Agents 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) During the period from the date of this Agreement to the Remarketing
Closing Date, the Company will not, without the prior written consent
of the Remarketing Agents, directly or indirectly, publicly issue,
sell, offer or contract to sell, in the market in which the Subject
Senior Notes are being offered and sold, any securities of the Company
or any of its subsidiaries which are of the same class as the Subject
Senior Notes.
(h) It will, except as provided herein or in any other agreement between
the Company and the Remarketing Agents, pay all expenses and taxes
(except transfer taxes) in connection with (i) the remarketing and
8
delivery of the Subject Senior Notes as provided in Section 5 hereof
(including, without limitation, all trustee and rating agency fees),
(ii) the qualification of the Subject Senior Notes under blue-sky laws
(including counsel fees not to exceed $7,500 and reasonable
disbursements of counsel), and (iii) the printing and delivery to the
Remarketing Agents of reasonable quantities of the Registration
Statement and, except as provided in Section 5(d) hereof, of the
Prospectus. The Company shall not, however, be required to pay any
amount for any expenses of the Remarketing Agents, except that, if
this Agreement shall be terminated in accordance with the provisions
of Section 6 or 8 hereof, the Company will reimburse the Remarketing
Agents (i) for the fees and disbursements of Xxxxx Xxxxxxxxxx LLP,
Counsel for the Remarketing Agents, whose fees and disbursements,
together with fees and disbursements of any other counsel retained by
the Remarketing Agents, the Remarketing Agents agree to pay in any
other event, and (ii) for its 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 the Remarketing Agents for damages on account of loss of
anticipated profits.
6. Conditions of Remarketing Agents' Obligations. The obligations of
the Remarketing Agents to purchase and pay for the Subject Senior Notes shall be
subject to the accuracy of the representations 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 Remarketing Closing Date, and to the following
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) prior to 5:30 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 Remarketing Agents.
(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
Remarketing Closing Date; and the Remarketing Agents shall have
received a certificate, dated the Remarketing 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 Remarketing Closing Date, the Remarketing Agents shall have
received from Xxxxx X. Xxxxx, Senior Vice President and Associate
General Counsel of TXU Business Services Company, Xxxxxx Xxxx & Priest
LLP, Counsel for the Company, and Xxxxx Xxxxxxxxxx LLP, Counsel for
the Remarketing Agents, opinions in substantially the form and
substance prescribed in Schedules II, III and IV hereto (i) with such
changes therein as may be agreed upon by the Company and the
Remarketing Agents, with the approval of Counsel for the Remarketing
Agents, and (ii) if the Prospectus relating to the Subject Senior
Notes shall be supplemented or amended after the Prospectus shall have
9
been filed with the Commission pursuant to Rule 424, with any changes
therein necessary to reflect such supplementation or amendment.
(d) On and as of the Remarketing Closing Date, the Remarketing Agents
shall have received from Deloitte & Touche LLP a letter to the effect
that (i) they are the independent registered public accounting firm
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 consolidated 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 related 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 consolidated financial
statements from which these amounts were derived, the latest available
unaudited consolidated financial statements of the Company and the
minute books of the Company and inquiries of officers of the Company
and of certain direct and indirect subsidiaries 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 standards of the Public Company Accounting
Oversight Board (United States) 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
Remarketing Agents' purposes), nothing has come to their attention
which caused them to believe that (A) any material modifications
should be made to unaudited condensed consolidated financial
statements of the Company included in the quarterly reports,
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles, (B) the
unaudited condensed consolidated financial statements included in the
quarterly reports do not conform in all material respects with the
applicable accounting requirements of the Exchange Act and the related
rules and regulations thereunder adopted by the Commission, and (C) at
a specified date not more than five 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, long term debt or long term
debt due currently of the Company or decrease in its net assets
(excluding changes due to Other Comprehensive Income), in each case as
compared with amounts shown in the most recent consolidated balance
sheets of the Company included or 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, (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
the Remarketing Agents (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 and its consolidated
subsidiaries subject to the internal controls of the accounting system
10
of such companies 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 information 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 its subsidiaries, considered as a whole,
whether or not in the ordinary course of business, and, since such
dates, there shall not have been any material transaction entered into
by any of the Company and the Material Subsidiaries, in each case
other than transactions in the ordinary course of business and
transactions contemplated by the Registration Statement or Prospectus,
and at the Remarketing Closing Date the Remarketing Agents shall have
received a certificate to such effect dated the Remarketing Closing
Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection with the Remarketing
of the Subject Senior Notes as described in the Prospectus shall have
been satisfactory in form and substance to Counsel for the Remarketing
Agents.
(g) At the Remarketing Closing Date, (i) the Subject Senior Notes shall be
rated at least "Ba1" by Xxxxx'x Investors Service, Inc. ("Moody's"),
"BBB-" by Standard & Poor's, a division of the McGraw Hill Companies,
Inc. ("S&P"), and "BBB-" by Fitch Ratings ("Fitch"), and the Company
shall have delivered to the Remarketing Agents a letter from each such
rating agency, or other evidence satisfactory to the Remarketing
Agents, confirming that the Subject Senior Notes have such ratings,
and (ii) neither Moody's, S&P nor Fitch shall have, since the date of
this , downgraded or publicly
announced that it has under surveillance or review, with possible
negative implications, its ratings of the Subject Senior Notes or any
securities of the Company which are of the same class as the Subject
Senior Notes, or of the financial condition of the Company.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the Remarketing Agents 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 5(h) and 7 hereof.
7. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each Remarketing
Agent, each Remarketing Agent's officers and members, or directors,
and each person who controls any Remarketing Agent within the meaning
11
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 Remarketing
Agent and controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel
fees) as and when 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 any
amendment or supplement thereto), or the omission or alleged omission
to state therein a material fact 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 7 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 and in conformity with information furnished
in writing to the Company by any Remarketing Agent, or on behalf of
any Remarketing Agent by Counsel for the Remarketing Agents, expressly
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 that shall constitute the
Statements of Eligibility and under the Trust Indenture Act of any
trustee with respect to any indenture qualified pursuant to the
Registration Statement; and provided further, that the indemnity
agreement contained in this Section 7 shall not inure to the benefit
of any Remarketing Agent (or any officer or director of such
Remarketing Agent or of any person controlling such Remarketing Agent)
on account of any such losses, claims, damages, liabilities, expenses
or actions arising from the sale of the Subject Senior Notes to any
person if a copy of the Prospectus (including any amendment or
supplement thereto if any amendments or supplements thereto shall have
been furnished to the Remarketing Agents at or prior to the time of
written confirmation of the Remarketing involved) (exclusive of the
Incorporated Documents) shall not have been given or sent to such
person by or on behalf of such Remarketing Agent with or prior to the
written confirmation of the Remarketing involved unless the alleged
omission or alleged untrue statement was not corrected in the
Prospectus at the time of such written confirmation. The indemnity
agreement of the Company contained in this Section 7 and the
representations and warranties of the Company contained in Section 2
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 the Remarketing Agents, the Remarketing Agents'
officers or directors or any such controlling person, and shall
survive the remarketing of the Subject Senior Notes.
(b) Each Remarketing Agent shall, severally and not jointly, indemnify,
defend and hold harmless the Company, the Company's officers and
directors, and each person who controls the Company within the meaning
12
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) as and when 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 (including any Incorporated Document deemed to be an
amendment or supplement thereto), 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, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by the Remarketing
Agent, or on behalf of the Remarketing Agent by Counsel for the
Remarketing Agent, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof. The Remarketing Agents hereby furnish to
the Company in writing expressly for use in the Prospectus the Price
to the Public on the front cover page and the fourth and fifth
paragraphs in the "Remarketing" section of the pricing supplement,
dated August 11, 2004. Each of the Remarketing Agents and the Company
acknowledges that the statements in the Prospectus referenced in the
prior sentence constitute the only information furnished in writing by
or on behalf of the Remarketing Agents expressly for use in the
Prospectus. The indemnity agreement of the Remarketing Agents
contained in this Section 7 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 Remarketing Agent, or any such controlling person,
and shall survive the delivery of the Subject Senior Notes.
(c) The Company and the relevant Remarketing Agent 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
failure to notify such indemnifying party or parties of any such
action shall not relieve such indemnifying party or parties from any
liability hereunder to the extent such indemnifying party or parties
is/are not materially prejudiced as a result of such failure to notify
and in any event shall not relieve such indemnifying party or parties
from any liability that 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
13
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 (including
impleaded parties) 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 a single 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, whose reasonable fees and expenses shall be paid
by such 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 fees and expenses of more than one separate counsel (in
addition to local counsel) representing the indemnified parties who
are parties to such action). Each of the Company and the Remarketing
Agents agrees that without the other party's prior written consent,
which consent shall not be unreasonably withheld, it will not settle,
compromise or consent to the entry of any judgment in any claim in
respect of which indemnification may be sought under the
indemnification provisions of this Agreement, unless such settlement,
compromise or consent (i) includes an unconditional release of such
other party from all liability arising out of such claim and (ii) does
not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of such other party.
(d) If the indemnification provided for in subparagraph (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 (i) the relative
benefits received by the Company on the one hand and the Remarketing
Agents on the other hand from the remarketing of the Subject Senior
Notes to purchasers by the Remarketing Agents pursuant to this
Agreement, (ii) if an allocation solely on the basis provided by
clause (i) is not permitted by applicable law or is inequitable or
against public policy, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but
also the relative fault of each indemnifying party on the one hand and
the indemnified party on the other hand in connection with the
statements or omissions which have resulted in such losses, claims,
damages, liabilities and expenses, and (iii) 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,
14
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Remarketing
Agents each agree that it would not be just and equitable if
contributions pursuant to this subparagraph (d) were to be determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7, no Remarketing Agent
shall be required to contribute in excess of the amount equal to the
excess of (i) the total price at which the Subject Senior Notes
remarketed by it were offered, over (ii) the amount of any damages
which such Remarketing Agent has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or
alleged omission.
(e) The indemnification and contribution provisions contained in Section 7
of this shall supersede and replace
any indemnification or contribution provisions contained in the
Remarketing Agreement; provided, however, that this Section 7 shall
neither supersede nor replace any obligations of the Company to
indemnify for or contribute to any claims, losses, damages or
liabilities of any Indemnified Party (as defined in the Remarketing
Agreement) relating to or arising out of any acts or omissions by the
Indemnified Party in connection with its functions specified in or
contemplated by the Remarketing Agreement other than the offering of
the Subject Senior Notes to subsequent purchasers by the Indemnified
Party as Remarketing Agent.
8. Termination. This Agreement may be terminated, at any time prior to
the Remarketing Closing Date, by the Remarketing Agents by written notice to the
Company if after the date hereof and at or prior to the Remarketing Closing
Date, (a) there shall have occurred any general suspension of trading in
securities on the New York Stock Exchange, Inc. ("NYSE"), the American Stock
Exchange LLC ("AMEX") or the NASDAQ Stock Market, Inc. ("NASDAQ") or there shall
have been established by the NYSE, AMEX or NASDAQ or by the Commission or by any
federal or state agency or by the decision 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 a material disruption in commercial banking or securities
settlement or clearance services in the United States, or (b) there shall have
occurred any (i) new material outbreak of hostilities (including, without
limitation, an act of terrorism) or (ii) new material other national or
international calamity or crisis, or any material adverse change in the
financial, political or economic conditions affecting the United States,
including, but not limited to, an escalation of hostilities that existed prior
to the date of this Agreement, or (iii) material adverse change in the financial
markets in the United States, 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 or inadvisable, in the reasonable judgment of
the Remarketing Agent, for the Remarketing Agents to proceed with the
remarketing of the Subject Senior Notes on the terms and in the manner
contemplated by the Prospectus. This Agreement may also be terminated with
respect to the Subject Senior Notes at any time prior to the Remarketing Closing
Date by the Remarketing Agents if, in their 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
15
activity or activities of any Remarketing Agent or Remarketing Agents) 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 and its subsidiaries, considered as a whole, whether or
not in the ordinary course of business, that has materially impaired the
marketability of the Subject Senior Notes. Any termination hereof pursuant to
this Section 8 shall be without liability of any party to any other party except
as otherwise provided in Sections 5(h) and 7 hereof.
9. Miscellaneous.
(a) 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 Remarketing Agents and, with
respect to the provisions of Section 7 hereof, each director, officer
and controlling person referred to in said Section 7, 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 Subject
Senior Notes from the Remarketing Agents.
(b) The Company acknowledges that the Remarketing Agents have not
provided and will not provide advice on any accounting or tax issues
in connection with the Remarketing. The Company will consult its own
advisors with respect to such tax and accounting issues. Each of the
Remarketing Agents and the Company has consulted their own legal
advisors with respect to legal issues with respect to the Remarketing.
10. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid or
transmitted by facsimile. All such notices, requests, consents or other
communications shall be addressed as follows: if to the Company, to TXU Corp.,
Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Treasurer; if
to the Remarketing Agents or Reset Agents, to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, 4 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxx and to Banc of America Securities LLC, 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx, and if to the Purchase
Contract Agent, to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Administration, or to such other address as
any of the above shall specify to the other in writing.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Remarketing Agents.
Very truly yours,
TXU CORP.
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK not
individually but solely as Purchase
Contract Agent, trustee and as
attorney-in-fact for the holders of
the Purchase Contracts
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
-----------------------------------
Name:
Title:
17
SCHEDULE I
Title of Subject Senior Notes: Series K Senior Notes due November 16, 2006
Reset Spread: 1.8% (180 basis points)
Applicable Benchmark Treasury: CUSIP 000000XX0 (maturity November 15, 2006)
Coupon : 4.446%
Underwriting Agreement, dated as of October 10, 2001, among the Company, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx, Sachs & Co.
Minimum % to be remarketed by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated: 50%
Minimum % to be remarketed by Banc of America Securities LLC: 50%
Remarketing Closing Date, Time and Location: 10:00 A.M., New York time, on
August 16, 2004 at the offices of Xxxxxx Xxxx & Priest LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx
I-1
SCHEDULE II
[Letterhead of Xxxxx X. Xxxxx]
August 16, 2004
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Remarketing Agents named in the
, dated August 11, 2004,
among TXU Corp., The Bank of New York, as Purchase
Contract Agent, and the Remarketing Agents
Ladies and Gentlemen:
I am Senior Vice President and Associate General Counsel of TXU Business
Services Company. As such, I have acted as counsel to TXU Corp. (the "Company")
in connection with the remarketing of its Subject Senior Notes (the
"Securities") pursuant to the Remarketing Agreement, dated October 16, 2001, by
and among the Company, The Bank of New York, as Purchase Contract Agent, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Xxxxxxx, Xxxxx
& Co., as remarketing agents, as supplemented by the Appointment Letter and by
the , dated August 11, 2004 (the ""), among the Company, The Bank of New York, as Purchase
Contract Agent, Xxxxxxx Xxxxx and Banc of America Securities LLC, as Remarketing
Agents.
Terms not otherwise defined herein are used with the meanings ascribed to
them in the .
In so acting I (or attorneys in the Legal Department with whom I have
consulted) have participated in or reviewed the corporate proceedings in
connection with the authorization, execution and delivery of the Remarketing
Agreement, the , the Indenture and the Subject
Senior Notes. I (or attorneys in the Legal Department with whom I have
consulted) have also examined such other documents and satisfied myself as to
such other matters as I have deemed necessary as a basis for the conclusions of
law contained in the opinions enumerated below. I have relied as to various
questions of fact upon the representations and warranties of the Company
contained in the and, where I deemed
appropriate, on certificates of public officials. I have relied upon a
certificate of the trustee under the Indenture as to the authentication of the
Subject Senior Notes. In my examination I have assumed the genuineness of all
II-1
signatures and the authenticity of all documents submitted to me as originals
and the conformity to original documents of all documents submitted to me as
photostatic or certified copies.
Upon the basis of my familiarity with these transactions and with the
affairs and properties of the Company generally, and subject to the
qualifications and limitations set forth herein, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Texas, and has the corporate power
and authority: (a) to execute, deliver and perform its obligations under the
Remarketing Agreement, the Supplemental Remarketing Agreement and the Indenture
and (b) to own its property and assets and to conduct the business which it is
now conducting.
2. The Remarketing Agreement and the Supplemental Remarketing Agreement
have been duly authorized, executed and delivered by the Company.
3. The Subject Senior Notes and the Indenture have been duly authorized,
executed and delivered by the Company.
4. 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 or any of its subsidiaries is a party or of
which property of the Company or any of its subsidiaries is the subject, and, to
my knowledge, no such proceedings are contemplated.
5. No other approval, authorization, consent or order of any public board
or body of the State of Texas (other than in connection or in compliance with
the provisions of applicable blue-sky laws or securities laws of any
jurisdiction, as to which I do not express any opinion) is legally required to
be obtained by the Company for the remarketing of the Subject Senior Notes
pursuant to the Remarketing Agreement and the Supplemental Remarketing
Agreement.
6. Each Material Subsidiary of the Company has been incorporated, organized
or formed and is validly existing and subsisting as a corporation or other legal
entity under the laws of the jurisdiction of its incorporation, organization or
formation; each Material Subsidiary has the corporate, limited liability company
or limited partnership power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as set forth
in or contemplated by the Prospectus, and to my knowledge, is qualified as a
foreign corporation or other entity to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as a whole; and
except as set forth in or contemplated by the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock or other common
ownership interests of each Material Subsidiary has been authorized and, to my
knowledge, all such shares or interests are validly issued and fully paid and
(except for directors' qualifying shares) are owned by the Company, directly or
through its subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity or as otherwise permitted by the
terms of the Indenture.
II-2
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), I (or attorneys in the Legal
Department with whom I have consulted) had discussions with certain of its
officers and representatives and certain officers and representatives of certain
of its subsidiaries, with other legal counsel to the Company, with Deloitte &
Touche LLP, the Company's independent registered public accounting firm who
audited certain of the financial statements incorporated by reference in the
Registration Statement and the Prospectus, and with certain of your officers and
employees and your counsel, but, except as any such information relates to me, I
(and the attorneys in the Legal Department with whom I have consulted) made no
independent verification of the accuracy or completeness of the representations
and statements made to me (or to the attorneys in the Legal Department with whom
I have consulted) by the Company or the information included by the Company in
the Registration Statement and the Prospectus and take no responsibility
therefore except as set forth in paragraph 5 above. However, my examination of
the information relating to the Company contained in the Registration Statement
and the Prospectus and my discussions did not disclose to me anything which
gives me reason to believe that (except as to the financial statements and
schedules and other financial and statistical data contained therein and except
as to those parts of the Registration Statement that constitute the Forms T-1,
as to which I do not express any opinion or belief) (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 the Commission pursuant to Rule 424(b) 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.
This opinion is limited to the laws of the State of Texas.
Very truly yours,
II-3
SCHEDULE III
[Letterhead of Xxxxxx Xxxx & Priest LLP]
August 16, 2004
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Remarketing Agents named in the
Supplemental Remarketing Agreement, dated August 11, 2004,
among TXU Corp., The Bank of New York, as Purchase
Contract Agent, and the Remarketing Agents
Ladies and Gentlemen:
We have acted as counsel to TXU Corp. (the "Company") in connection with
the remarketing of its Subject Senior Notes (the "Securities") pursuant to the
Remarketing Agreement, dated October 16, 2001, by and among the Company, The
Bank of New York, as Purchase Contract Agent, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Xxxxxxx, Xxxxx & Co., as remarketing
agents, as supplemented by the Appointment Letter and by the Supplemental
Remarketing Agreement, dated August 11, 2004 (the "Supplemental Remarketing
Agreement"), among the Company, The Bank of New York, as Purchase Contract
Agent, Xxxxxxx Xxxxx and Banc of America Securities LLC, as Remarketing Agents.
Terms not otherwise defined herein are used with the meanings ascribed to
them in the Supplemental Remarketing Agreement.
In so acting we have participated in or reviewed the corporate proceedings
in connection with the authorization, execution and delivery of the Remarketing
Agreement, the Supplemental Remarketing Agreement, the Indenture and the Subject
Senior Notes. 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 Supplemental Remarketing Agreement and, where we deemed
appropriate, on certificates of public officials. We have relied upon a
certificate of the trustee under the Indenture as to the authentication of the
Subject Senior Notes. In our examination we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
III-1
and the conformity to original documents of all documents submitted to us as
photostatic or certified copies.
Based on the foregoing, and subject to the qualifications and limitations
set forth herein, we are of the opinion that:
1. The Remarketing Agreement and the Supplemental Remarketing Agreement
have been duly authorized, executed and delivered by the Company.
2. The Subject Senior Notes and the Indenture have been duly authorized,
executed and delivered by the Company; the Subject Senior Notes are entitled to
the benefits of the Indenture; and the Subject Senior Notes and the Indenture
are legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective 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.
3. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
4. The statements made in the Prospectus under the captions "Specific Terms
of the Remarketed Series K Notes", "Specific Terms of the Senior Notes" and
"Description of Debt Securities", insofar as they purport to constitute a
summary of the terms of the documents and instruments referred to therein,
constitute an accurate summary of the terms of such documents in all material
respects.
5. The Company is not an investment company within the meaning of the
Investment Company Act of 1940, as amended.
6. The Registration Statement, as of the Effective Date, and the
Prospectus, at the time it was filed with the Commission pursuant to Rule 424(b)
under the Securities Act, (except as to financial statements and schedules and
other financial and statistical data contained therein, as to which we do not
express any opinion, and except for those parts of the Registration Statement
that constitute the Forms T-1, as to which we do not express any opinion)
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 opinion or 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 knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
7. No other approval, authorization, consent or order of any public board
or body of the United States of America or the States of New York or Texas
(other than in connection or in compliance with the provisions of applicable
blue-sky laws or securities laws of any jurisdiction (other than the federal
III-2
securities laws of the United States of America), as to which we do not express
any opinion) is legally required to be obtained by the Company for the
remarketing of the Subject Senior Notes pursuant to the Remarketing Agreement
and the Supplemental Remarketing Agreement.
We hereby confirm as our opinion the statements under the caption "Material
Federal Income Tax Consequences" in the Prospectus.
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 and certain officers and representatives of
certain of its subsidiaries, with other counsel for the Company, with Deloitte &
Touche LLP, the independent registered public accounting firm who audited
certain of the financial statements incorporated by reference 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 therefore 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 as to the financial statements and schedules and other financial
and statistical data contained therein and except for those parts of the
Registration Statement that constitute the Forms T-1, as to which we do not
express any opinion or belief) (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 the Commission pursuant to Rule 424(b) 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.
This opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and, to the extent set forth herein, the
laws of the State of Texas. We 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 Xxxxx X. Xxxxx, Senior Vice President and
Associate General Counsel of TXU Business Services Company. We believe that you
and we are justified in relying on such opinion.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
III-3
SCHEDULE IV
[Letterhead of Xxxxx Xxxxxxxxxx LLP]
August 16, 2004
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Remarketing Agents named in the
Supplemental Remarketing Agreement, dated August 11, 2004,
among TXU Corp., The Bank of New York, as Purchase
Contract Agent, and the Remarketing Agents
Ladies and Gentlemen:
We have acted as counsel to the you in connection with your remarketing of
the Subject Senior Notes pursuant to the Remarketing Agreement, dated October
16, 2001, by and among the Company, The Bank of New York, as Purchase Contract
Agent, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx")
and Xxxxxxx, Xxxxx & Co., as remarketing agents, as supplemented by the
Supplemental Remarketing Agreement, dated August 11, 2004 (the "Supplemental
Remarketing Agreement"), among the Company, The Bank of New York, as Purchase
Contract Agent, Xxxxxxx Xxxxx and Banc of America Securities LLC, as Remarketing
Agents.
Terms not otherwise defined herein are used with the meanings ascribed to
them in the Supplemental Remarketing Agreement.
This opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and, to the extent set forth herein, the
laws of the State of Texas. We 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 Xxxxx X. Xxxxx, Senior Vice President and
Associate General Counsel of TXU Business Services 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 Xxxxxx Xxxx & Priest LLP, Counsel
to the Company, required by paragraph (c) of Section 6 of the Supplemental
Remarketing Agreement, and we believe such opinion to be satisfactory.
IV-1
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 Subject Senior Notes, except specimens thereof, and have relied upon a
certificate of the trustee under the Indenture as to the authentication of the
Subject Senior Notes. 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.
Based on the foregoing, we are of the opinion that:
1. The Remarketing Agreement and the Supplemental Remarketing Agreement
have been duly authorized, executed and delivered by the Company;
2. The Subject Senior Notes and the Indenture have been duly authorized,
executed and delivered by the Company; the Subject Senior Notes are entitled to
the benefits of the Indenture; and the Subject Senior Notes and the Indenture
are legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective 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;
3. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended;
4. The statements made in the Prospectus under the caption "Specific Terms
of the Remarketed Series K Notes", "Specific Terms of the Senior Notes "and
"Description of Debt Securities", insofar as they purport to constitute a
summary of the terms of the documents and instruments referred to therein,
constitute an accurate summary of the terms of such documents and instruments in
all material respects;
5. No other approval, authorization, consent or order of any public board
or body of the United States of America or the States of New York or Texas
(other than in connection or in compliance with the blue-sky laws of the States
of New York or Texas, as to which we express no opinion) is legally required to
be obtained by the Company for the remarketing of the Subject Senior Notes
pursuant to the Remarketing Agreement and the Supplemental Remarketing
Agreement; and
6. The Registration Statement, at the Effective Date, and the Prospectus at
the time it was filed with the Commission pursuant to Rule 424 (except in each
case as to the 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 Statements of
Eligibility on Form T-1, as to which we do not express any opinion) complied as
to form in all material respects with the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder.
IV-2
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 the Company's officers and
representatives, and officers and representatives of certain of its
subsidiaries, with counsel for the Company, with Deloitte & Touche LLP, the
independent registered public accounting firm 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 the Commission pursuant to Rule 424(b), 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 those parts
of the Registration Statement that constitute the Forms T-1.
This opinion is given to you solely for your use in connection with the
Supplemental Remarketing Agreement and the transactions contemplated thereunder
and may not be relied upon by any other person or for any other purpose without
our express written consent. This opinion is expressed as of the date hereof,
and we do not assume any obligation to update or supplement it to reflect any
fact or circumstance that hereafter comes to our attention, or any change in law
that hereafter occurs.
Very truly yours,
XXXXX XXXXXXXXXX LLP
