TXU CORP.
Floating Rate Convertible Senior Notes due 2033
PURCHASE AGREEMENT
July 9, 2003
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as representative (the "Representative") of the several Initial Purchasers
named in Schedule I hereto (the "Initial Purchasers")
Ladies and Gentlemen:
1. Introduction; Description of Notes. TXU Corp., a Texas
corporation (the "Company"), proposes to issue and sell severally to the Initial
Purchasers $475,000,000 aggregate principal amount of its Floating Rate
Convertible Senior Notes due 2033 (the "Firm Notes"), subject to the terms and
conditions set forth herein. The Company also proposes to grant to the Initial
Purchasers an option to purchase up to an additional $65,000,000 aggregate
principal amount of such Floating Rate Convertible Senior Notes (the "Option
Notes," and collectively with the Firm Notes, the "Notes"), as described in
Section 4(b) hereof.
The Notes are convertible into shares of the Company's common
stock, without par value ("Common Stock"), along with the preference stock
purchase rights appurtenant thereto (the "Rights," and together with the Common
Stock, the "Shares"), at the initial conversion price set forth in an offering
memorandum dated July 9, 2003, subject to adjustment in accordance with the
Company's Indenture (For Unsecured Debt Securities), to be dated as of July 1,
2003, to The Bank of New York, as trustee thereunder (the "Trustee"), as
supplemented by an Officer's Certificate (the "Officer's Certificate"), to be
dated July 15, 2003, in substantially the form heretofore delivered to you (said
Indenture, as supplemented by said Officer's Certificate, being hereinafter
referred to as the "Indenture"), pursuant to which the Company intends to issue
the Notes.
2. Terms of Offering. The Notes will be offered and sold to the
Initial Purchasers pursuant to one or more exemptions from, or in transactions
not subject to, the registration requirements under the Securities Act of 1933,
as amended (the "Securities Act"). The Company has prepared and will deliver to
the Initial Purchasers copies of an offering memorandum, dated July 9, 2003, for
use by the Initial Purchasers in connection with their solicitation of purchases
of, or offerings of, the Notes. "Offering Memorandum" means, with respect to any
date or time referred to in this Agreement, the most recent offering memorandum
(including any amendment or supplement to such offering memorandum as of such
date), including exhibits thereto and any documents incorporated therein by
reference, that has been
prepared and delivered by the Company to the Initial Purchasers in connection
with the Initial Purchasers' solicitation of purchases of, or offerings of, the
Notes.
Each Initial Purchaser has advised the Company that if such
Initial Purchaser makes offers of the Notes purchased hereunder, the offers will
be made on the terms set forth in the Offering Memorandum solely to persons whom
such Initial Purchaser reasonably believes to be (i) "qualified institutional
buyers" ("QIBs") as defined in Rule 144A under the Securities Act ("Rule 144A")
or (ii) non-U.S. persons to whom offers and sales of the Notes may be made in
reliance upon the provisions of Regulation S under the Securities Act
("Regulation S") (such persons collectively being referred to herein as the
"Eligible Purchasers," and sales to Eligible Purchasers by Initial Purchasers
being referred to herein as "Exempt Resales"). If any Initial Purchaser offers
the Notes to Eligible Purchasers, such offers will initially be made at a price
equal to 99.5% of the principal amount thereof. Such price may be changed by any
Initial Purchaser at any time without notice to the Company.
Holders (including subsequent transferees) of the Notes will have
the registration rights set forth in a registration rights agreement (the
"Registration Rights Agreement"), to be dated the Firm Closing Date (as
hereinafter defined) in substantially the form of Exhibit A hereto, for so long
as such Notes constitute "Registrable Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company will agree to use its reasonable efforts (i) to file with the
Securities and Exchange Commission (the "SEC") under the circumstances set forth
in the Registration Rights Agreement, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement") relating
to the resale by certain holders of the Notes and (ii) to cause such Shelf
Registration Statement to be declared and remain effective and usable for the
periods specified with respect thereto in the Registration Rights Agreement.
Upon original issuance thereof, and until such time as the same is
no longer required pursuant to the Indenture with respect thereto, the Notes
shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF TXU CORP. (THE
"COMPANY") THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED OTHER THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION
ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904
OF REGULATION S UNDER THE SECURITIES ACT (AS
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INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (5) IN ACCORDANCE WITH
ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (B) IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR
THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A OR (2) A NON-U.S. PERSON OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF, OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER, REGULATION S UNDER
THE SECURITIES ACT."
3. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchasers that:
(a) At the date hereof, the Offering Memorandum does not, and at
the Firm Closing Date, as hereinafter defined, the Offering Memorandum
will not, contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided that the foregoing representations and warranties in this
paragraph (a) shall not apply to statements or omissions made in
reliance upon and in conformity with the information furnished to the
Company in writing by, or on behalf of, the Initial Purchasers
expressly for use in the Offering Memorandum.
(b) 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 Offering Memorandum, 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.
(c) 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 Offering
Memorandum; 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
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Company and its subsidiaries, considered as a whole. Except as
otherwise set forth in or contemplated by the Offering Memorandum, 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, Oncor Electric Delivery Company, TXU
Generation Holdings Company LLC, TXU Energy Retail Company LP, TXU
Portfolio Management Company LP, TXU Gas Company, TXU Fuel Company, TXU
Mining Company LP, TXU Business Services Company, TXU Electricity
Limited, TXU Networks (Gas) Pty. Ltd., TXU Pty. Ltd. and TXU Australia
Holdings (Partnership) Limited Partnership.
(d) 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 formation, limited
liability company agreement or other agreement or instrument to which
the Company is now a party.
(e) Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 7 hereof and, with
respect to sales to Eligible Purchasers, compliance by the Initial
Purchasers with the provisions of Rule 144A and Regulation S applicable
to the Initial Purchasers in connection with such sales, it is not
necessary in connection with the offer, sale and delivery of the Notes
by the Company to the Initial Purchasers and by the Initial Purchasers
to each Eligible Purchaser in the manner contemplated by this Agreement
and the Offering Memorandum to register the Notes under the Securities
Act.
(f) The Company has not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to
any United States citizen or resident, any security which is or would
be integrated with the sale of the Notes in a manner that would require
the offer and sale of the Notes to be registered under the Securities
Act.
(g) The Notes are eligible for resale pursuant to Rule 144A and
will not be, at the Firm Closing Date (as hereinafter defined), of the
same class as securities of the Company listed on a national securities
exchange registered under Section 6 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or quoted in a U.S. automated
interdealer quotation system.
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(h) None of the Company, its affiliates, as such term is defined
in Rule 501(b) under the Securities Act ("Affiliates"), or any person
acting on its or any of their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged
or will engage, in connection with the offering of the Notes, in any
form of general solicitation or general advertising within the meaning
of Rule 502(c) under the Securities Act.
(i) With respect to those Notes sold in reliance on Regulation S,
(i) none of the Company, its Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (ii) each of the
Company, its Affiliates and any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation) has complied and will comply with the offering
restrictions of Regulation S.
(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 representation or warranty) is legally required
for the issuance and sale by the Company of the Notes.
(k) The financial statements included or incorporated by reference
in the Offering Memorandum, 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 Offering Memorandum, 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 Offering Memorandum 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 Offering Memorandum present
fairly, in all material respects, the information shown therein and ,
except as set forth in the Offering Memorandum, have been compiled on a
basis consistent with that of the audited financial statements
incorporated by reference in the Offering Memorandum.
The Company acknowledges that the Initial Purchasers, and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 hereof, counsel to the Company and counsel to the Initial Purchasers,
will rely upon the accuracy and truth of the foregoing representations and
warranties and the Company hereby consents to such reliance.
4. Purchase and Sale.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
the Company agrees to sell to each
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Initial Purchaser, and each Initial Purchaser agrees to purchase from
the Company, severally and not jointly, at the time and place herein
specified, the principal amount of the Firm Notes set forth opposite
the name of each such Initial Purchaser in Schedule I attached hereto,
at a purchase price equal to 97.15% of the principal amount thereof
(the "Purchase Price").
(b) In addition, on the basis of the representations and
warranties herein contained, and subject to the terms and conditions
herein set forth, the Company grants to the Initial Purchasers the
right to purchase, at their election, at the Purchase Price, the Option
Notes. The option hereby granted will expire automatically at the close
of business on the 13th calendar day after the date hereof (the
"Expiration Date"), and may be exercised in whole or in part from time
to time, as provided herein, only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Notes upon written notice from the
Representative received by the Company on or prior to the Expiration
Date setting forth the aggregate principal amount of Option Notes to be
purchased and the time and date of delivery for such Option Notes. Each
such time and date of delivery (each an "Option Closing Date") shall be
determined by the Representative but shall not be later than three full
business days after the exercise of such option, nor in any event
before the Firm Closing Date, unless otherwise agreed upon by the
Representative and the Company. Each Initial Purchaser shall be
permitted to purchase that principal amount of Option Notes that bears
the same relation to total Option Notes as the principal amount of Firm
Notes purchased by such Underwriter bears to the total Firm Notes.
(c) If settlement for any Option Notes occurs after the Firm
Closing Date, the Company will deliver to the Initial Purchasers on the
applicable Option Closing Date, pursuant to Section 8(g) hereof, and
the obligations of the Initial Purchasers to purchase the Option Notes
shall be conditioned upon the receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions,
certificates and letters delivered at the Firm Closing Date.
5. Time and Place of Closing. Delivery of the Firm Notes against
payment of the aggregate purchase price, plus accrued interest thereon, if any,
from the date of original issuance to the date of payment for and delivery of
the Notes, by wire transfer in federal funds shall be made at the office of
Xxxxxx Xxxx & Priest LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00
A.M., New York time, on July 15, 2003, or at such other place, time and date as
shall be agreed upon in writing by the Company and the Representative. The hour
and date of such delivery and payment are herein called the "Firm Closing Date."
In addition, if the Initial Purchasers purchase any of the Option
Notes, delivery of the Option Notes against payment of the aggregate purchase
price therefor by wire transfer in federal funds by the Initial Purchasers or on
their behalf shall be made at the offices of Xxxxxx Xxxx & Priest LLP set forth
above, or at such other place as shall be agreed upon by the Company and the
Representative, on the applicable Option Closing Date as specified in the
relevant notice from the Representative to the Company.
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The Notes will be issued in the form of one or more global notes
in fully registered form (the "Global Notes"). The Global Notes shall be
delivered on the Firm Closing Date or any Option Closing Date, as the case may
be, or in either case such other date and time as agreed by The Depository Trust
Company ("DTC") or The Bank of New York, to DTC or to The Bank of New York, as
custodian for DTC, in fully registered global form registered in the name of
CEDE & CO. for the account of the Initial Purchasers, or as otherwise directed
by the Representative in writing not later than the close of business on the
second business day prior to such Firm Closing Date or Option Closing Date.
The Company agrees to make the Firm Notes or Option Notes, as the
case may be, available upon request to the Representative for checking purposes
not later than 2:00 P.M., New York time, on the business day preceding the Firm
Closing Date or any Option Closing Date, as the case may be, at the offices of
Xxxxxx Xxxx & Priest LLP set forth above, or at such other place in New York
City as the Company may specify.
If any Initial Purchaser 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 Firm Notes or Option Notes, as the case may be,
that such Initial Purchaser has agreed to purchase and pay for hereunder, the
Company shall immediately give notice to the non-defaulting Initial Purchasers
of the default of such defaulting Initial Purchaser, and the non-defaulting
Initial Purchasers shall have the right within 24 hours after the receipt of
such notice to determine to purchase, or, in the case of the Firm Notes, to
procure one or more other initial purchasers, 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 Conduct Rules) and are satisfactory to the Company, to
purchase, upon the terms herein set forth, the principal amount of the Firm
Notes or Option Notes, as the case may be, that the defaulting Initial Purchaser
had agreed but failed or refused to purchase. If any non-defaulting Initial
Purchaser or Initial Purchasers shall give written notice to the Company of such
determination within 24 hours after receipt of notice of any such default, the
Firm Closing Date or any Option Closing Date, as the case may be, shall be
postponed for such period, not exceeding three business days, as the Company
shall determine. If in the event of such default, no non-defaulting Initial
Purchaser shall give such notice, or the non-defaulting Initial Purchasers shall
within such 24-hour period give written notice to the Company that they shall
not exercise such right, then this Agreement may be terminated by the Company,
upon like notice given to the non-defaulting Initial Purchasers, 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 each non-defaulting Initial Purchaser to purchase
and pay for the principal amount of the Firm Notes or Option Notes, as
the case may be, that it had agreed to purchase hereunder as
hereinabove provided and, in addition, all or part of the principal
amount of the Firm Notes or Option Notes, as the case may be, that the
defaulting Initial Purchaser shall have so failed or refused to
purchase up to an amount thereof equal to one-ninth (1/9) of the
principal amount of Firm Notes or Option Notes,
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as the case may be, that such non-defaulting Initial Purchaser has
otherwise agreed to purchase hereunder, and/or
(b) in the case of the Firm Notes, 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 Conduct Rules) and are
reasonably satisfactory to the Representative, to purchase, upon the
terms herein set forth, either all or a part of the principal amount of
the Firm Notes of such defaulted series that such defaulting Initial
Purchaser had agreed but failed or refused to purchase or that portion
thereof, if any, that the remaining Initial Purchasers 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 Initial Purchasers within such further period of 24 hours, and
thereupon the Firm Closing Date or any Option Closing Date, as the case may be,
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 that would otherwise be included in such
period of time.
Any action taken by the Company under this Section 5 shall not
relieve the defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement. Termination by the
Company under this Section 5 shall be without any liability on the part of the
Company or the non-defaulting Initial Purchasers, except as otherwise provided
in Sections 6(f) and 9 hereof.
6. Covenants of the Company. The Company agrees with the Initial
Purchasers as follows:
(a) To advise the Initial Purchasers (i) of the issuance by any
state securities commission of any stop order suspending the
qualification or exemption from qualification of any of the Notes for
offering or sale, or the initiation of any proceeding by any state
securities commission or any other federal or state regulatory
authority for such purpose and (ii) of the happening of any event
during the period referred to in Section 6(c) below that makes any
statement of a material fact made in the Offering Memorandum untrue or
that requires any additions to or changes in the Offering Memorandum in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company shall use its
best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any of the Notes under any
state securities or blue-sky laws and, if at any time any state
securities commission or other federal or state regulatory authority
shall issue an order suspending the qualification or exemption of any
of the Notes under any state securities
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or blue-sky laws, the Company shall use its best efforts to obtain the
prompt withdrawal or lifting of such order.
(b) To furnish the Initial Purchasers as many copies of the
Offering Memorandum, and any amendments or supplements thereto, as the
Initial Purchasers may reasonably request. Subject to the Initial
Purchasers' compliance with their representations and warranties and
agreements set forth in Section 7 hereof, the Company consents to the
use of the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in
connection with Exempt Resales.
(c) If, during the nine-month period following the date of this
Agreement any event relating to or affecting the Company or of which
the Company shall be advised in writing by the Representative shall
occur that, in the Company's reasonable opinion after consultation with
counsel for the Initial Purchasers, should be set forth in a supplement
to, or an amendment of, the Offering Memorandum in order to make the
Offering Memorandum not misleading in the light of the circumstances
when such Offering Memorandum is delivered to an Eligible Purchaser,
the Company will, at its own expense, prepare an appropriate amendment
or supplement to such Offering Memorandum so that the Offering
Memorandum, as so amended or supplemented, 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 light of the
circumstances when the Offering Memorandum is delivered to an Eligible
Purchaser, not misleading; provided that should such event relate
solely to the activities of an Initial Purchaser, then such Initial
Purchaser shall assume the expense of preparing and furnishing any such
amendment or supplement. In case any Initial Purchaser is required to
deliver an Offering Memorandum after the expiration of nine months from
the date of this Agreement, the Company, upon the Representative's
request, will furnish to said Initial Purchaser, at such Initial
Purchaser's own expense, a reasonable quantity of any such amendment or
supplement referred to in this Section 6(c).
(d) To furnish such proper information as may be lawfully required
and otherwise cooperate in qualifying the Notes for offer and sale to
the Initial Purchasers and pursuant to Exempt Resales (or obtaining any
necessary exemption from such qualification) under the blue-sky laws of
such jurisdictions in the United States as the Representative may
designate, provided that the Company shall not be required to register
or 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.
(e) So long as any of the Notes remain outstanding, to make
available to any QIB holder of Notes in connection with any sale
thereof, and any QIB prospective purchaser of such Notes from such
holder, the information ("Rule 144A Information") required by Rule
144A(d)(4) under the Securities Act.
(f) Except as herein provided, to pay all expenses and taxes
(except transfer taxes) in connection with (i) the preparation of the
Offering Memorandum, including any
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electronic preliminary offering memorandum relating to the Notes, (ii)
the issuance and delivery of the Notes as provided in Section 5 hereof,
(iii) the qualification of the Notes under blue-sky laws (including
counsel fees not to exceed $7,500) and (iv) the printing and delivery
to the Initial Purchasers of reasonable quantities of the Offering
Memorandum and, except as provided in Section 6(c) hereof, of any
amendments or supplements thereto. The Company shall not, however, be
required to pay any amount for any expenses of the Initial Purchasers,
except that, if this Agreement shall be terminated in accordance with
the provisions of Section 8 or 10 hereof, the Company will reimburse
the Initial Purchasers for the fees and disbursements of counsel for
the Initial Purchasers, whose fees and disbursements the Initial
Purchasers agree to pay in any other event, and will reimburse the
Initial Purchasers 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 the Initial Purchasers for damages on account of loss of
anticipated profits.
(g) To obtain the approval of DTC for "book-entry" transfer of the
Notes, and to comply with all of its agreements set forth in the
representation letter of the Company to DTC relating to the approval of
such Notes by DTC for "book-entry" transfer.
(h) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of the Notes to
the Initial Purchasers or pursuant to Exempt Resales in a manner that
would require the registration of any such sale of the Notes under the
Securities Act.
(i) None of the Company, its Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers) will engage in
any directed selling efforts (as that term is defined in Regulation S)
with respect to the Notes sold pursuant to Regulation S, and the
Company and its Affiliates and each person acting on its or their
behalf (other than the Initial Purchasers) will comply with the
offering restrictions of Regulation S with respect to those Notes sold
pursuant thereto.
(j) Until the expiration of two years after the original issuance
of the Notes, the Company will not, and will cause its Affiliates not
to, purchase or agree to purchase or otherwise acquire any Notes which
are "restricted securities" (as such term is defined in Rule 144(a)(3)
under the Securities Act), whether as beneficial owner or otherwise
(except as agent acting as a securities broker on behalf of and for the
account of customers in the ordinary course of business in unsolicited
broker's transactions) unless, promptly upon any such purchase, the
Company or any Affiliate shall submit such Notes to the Trustee for
cancellation.
(k) During a period of 90 days from the date hereof, it will not,
without the prior written consent of the Representative, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, or enter into any agreement to sell, any Shares
or any security convertible into or exchangeable or exercisable for
Shares other than the Option Notes or Shares or options for Shares
issued pursuant to or offered, sold or granted in connection with (i)
any employee benefit, dividend reinvestment, stock option and stock
purchase plans of the Company and its subsidiaries; (ii) the conversion
10
of any of the Notes; (iii) the Exchange Agreement, dated as of November
22, 2002, among the Company, TXU Energy Company LLC, UXT Holdings LLC
("UXT") and certain affiliates of UXT; or (iv) the Company's corporate
units ("Corporate Units"), treasury units ("Treasury Units") or other
similar securities issued upon substitution of pledged securities that
are components of Corporate Units, Treasury Units or similar
securities; or (v) any sale or remarketing of Shares or mandatorily
convertible preference stock required pursuant to contractual
arrangements existing at the date hereof.
7. Initial Purchasers' Representations and Warranties. Each
Initial Purchaser, severally and not jointly, represents and warrants to and
agrees with the Company, that:
(a) It is a QIB, with such knowledge and experience in financial
and business matters as is necessary in order to evaluate the merits
and risks of an investment in the Notes and the Shares.
(b) It is not acquiring the Notes with a view to any distribution
(as such term is used under the Securities Act) of the Notes or the
Shares issuable upon conversion thereof or with any present intention
of offering or selling any of the Notes or the Shares issuable upon
conversion thereof in a transaction that would violate the Securities
Act or the securities laws of any state of the United States or any
other applicable jurisdiction.
(c) No form of general solicitation or general advertising (within
the meaning of Regulation D) under the Securities Act has been or will
be used by it or any of its representatives in connection with the
offer and sale of the Notes pursuant hereto, including, but not limited
to, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising.
(d) In connection with Exempt Resales, it will solicit offers to
buy the Notes only from, and will offer to sell Notes only to, an
Eligible Purchaser that, by accepting Notes, will be deemed to have
represented and agreed that (x) the Notes purchased by it may be
resold, pledged or otherwise transferred only (I) to the Company, (II)
to a person whom the seller reasonably believes is a QIB purchasing for
its own account or for the account of a QIB in a transaction meeting
the requirements of Rule 144A, (III) in an offshore transaction (as
defined in Rule 902 under the Securities Act) meeting the requirements
of Rule 904 of the Securities Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (V) in accordance
with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel acceptable to the
Company) or (VI) pursuant to an effective registration statement and,
in each case, in accordance with the applicable securities laws of any
state of the United States or any other applicable jurisdiction and (y)
it will deliver to each person to whom any of the Notes or any interest
therein is transferred a notice substantially to the effect of the
foregoing.
11
(e) It agrees that it will not offer, sell or deliver any of the
Notes or any of the Shares issuable upon conversion of the Notes in any
jurisdiction outside the United States, except pursuant to Regulation
S.
Each Initial Purchaser acknowledges that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 hereof, counsel to the Company and counsel to the Initial Purchasers,
will rely upon the accuracy and truth of the foregoing representations and
warranties and each Initial Purchaser hereby consents to such reliance.
8. Conditions of the Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Firm 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 Firm Closing Date, and to the
following conditions:
(a) On the Firm Closing Date, the Initial Purchasers shall have
received from Xxxx X. Xxxxxxxx, Executive Vice President and General
Counsel of TXU Corp., Hunton & Xxxxxxxx LLP, counsel for the Company,
Xxxxxx Xxxx & Priest LLP, counsel for the Company, and Pillsbury
Winthrop LLP, counsel for the Initial Purchasers, opinions in
substantially the form and substance prescribed in Schedules II, III,
IV and V hereto with such changes therein as may be agreed upon by the
Company and the Representative on behalf of the Initial Purchasers,
with the approval of counsel for the Initial Purchasers.
(b) On and as of the Firm Closing Date, the Initial Purchasers
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, except as stated in the Offering Memorandum, the consolidated
financial statements audited by them and included or incorporated by
reference in the Offering Memorandum comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related rules and regulations by the SEC 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
Offering Memorandum 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
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
Initial Purchasers' purposes), nothing has come to their attention
which caused them to believe that (A) any material modifications should
be made to the unaudited condensed consolidated financial statements of
the Company included in the quarterly report, incorporated by reference
in the Offering Memorandum, for them to be in conformity with generally
accepted accounting
12
principles, (B) the unaudited condensed consolidated financial
statements included in the quarterly report do not conform in all
material respects with the applicable accounting requirements of the
Exchange Act and the related rules and regulations adopted by the SEC
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 (which
includes common stock and preference 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 incorporated by reference in the Offering Memorandum,
except in all instances for changes or decreases that the Offering
Memorandum discloses have occurred or may occur or which are occasioned
by 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 Offering Memorandum as reasonably requested by the
Initial Purchasers (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
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.
(c) Since the most recent dates as of which information is given
in the Offering Memorandum, 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
Offering Memorandum, and at the Firm Closing Date the Initial
Purchasers shall have received a certificate to such effect dated the
Firm Closing Date and signed by an officer of the Company.
(d) All opinions, certificates, letters and documents to be
provided in connection with the issuance and sale of the Firm Notes as
provided herein, including the Registration Rights Agreement, shall be
satisfactory in form and substance to counsel for the Initial
Purchasers.
(e) At the Firm Closing Date, (i) the Notes shall be rated at
least Ba1 by Xxxxx'x Investors Service, Inc. ("Moody's") and BBB- by
Standard & Poor's, a division of the McGraw Hill Companies, Inc.
("S&P"), and the Company shall have delivered to the Initial Purchasers
a letter from each such rating agency, or other evidence satisfactory
to the Representative on behalf of the Initial Purchasers, confirming
that the Notes have such ratings, and (ii) neither Moody's nor S&P
shall have, since the date of this Agreement, downgraded or publicly
announced that it has under surveillance or review, with possible
negative implications, its ratings of the Notes or any securities of
the
13
Company which are of the same class as the Notes, or of the financial
condition of the Company.
(f) At the Firm Closing Date, the Shares issuable upon conversion
of the Notes shall have been approved for listing on the New York,
Chicago and Pacific stock exchanges upon notice of issuance.
(g) In the event that the Underwriters exercise the option
provided in Section 3(b) hereof to purchase all or any portion of the
Option Notes, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of, and as if made
on, the applicable Option Closing Date, and at the applicable Option
Closing Date:
(i) the Underwriters shall have received a certificate, dated
such Option Closing Date, of an officer of the Company confirming
that the certificate delivered at the Firm Closing Date pursuant
to Section 8(c) hereof is true and correct as of, and as if made
on, such Option Closing Date;
(ii) the Underwriters shall have received the favorable
opinions of Xxxx X. Xxxxxxxx, Hunton & Xxxxxxxx LLP and Xxxxxx
Xxxx & Priest LLP, each in form and substance satisfactory to
Counsel for the Initial Purchasers, and of Pillsbury Winthrop LLP,
each dated such Option Closing Date, each relating to the Option
Notes and otherwise to the same effect as the opinions required by
Section 8(a) hereof;
(iii) the Underwriters shall have received a letter from
Deloitte & Touche LLP, in form and substance satisfactory to the
Initial Purchasers and dated such Option Closing Date,
substantially the same in form and substance as the letter
furnished to the Initial Purchasers pursuant to Section 8(b)
hereof, except that the "specified date" in the letter furnished
pursuant to this Section 8(g)(iii) shall be a date not more than
five days prior to such Option Closing Date; and
(iv) (A) the Notes shall be rated at least Ba1 by Moody's and
BBB- by S&P, and the Company shall have delivered to the Initial
Purchasers a letter from each such rating agency, or other
evidence satisfactory to the Representative on behalf of the
Initial Purchasers, confirming that the Notes have such ratings,
and (B) neither Moody's nor S&P shall have, since the date of this
Agreement, downgraded or publicly announced that it has under
surveillance or review, with possible negative implications, its
ratings of the Notes or any securities of the Company which are of
the same class as the Notes, or of the financial condition of the
Company.
The failure of one or more conditions, specified in this Section
8, shall permit the termination of this Agreement by the Representative on
behalf of the Initial Purchasers 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(f) and 9 hereof.
14
9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each
Initial Purchaser, each Initial Purchaser's officers and members, or
directors, and each person who controls any Initial Purchaser 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 Initial
Purchaser 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 Offering Memorandum (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 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 and in conformity
with information furnished in writing to the Company by any Initial
Purchaser through the Representative, expressly for use in connection
with the preparation of the Offering Memorandum (or any amendment or
supplement thereto); and provided further that the indemnity agreement
contained in this Section 9 shall not inure to the benefit of any
Initial Purchaser (or any officer or director of such Initial Purchaser
or of any person controlling such Initial Purchaser) on account of any
such losses, claims, damages, liabilities, expenses or actions arising
from the sale of the Notes to any subsequent purchaser in the United
States if a copy of the Offering Memorandum (including any amendment or
supplement thereto if any amendments or supplements thereto shall have
been furnished to the Initial Purchasers at or prior to the time of
written confirmation of the sale involved) shall not have been given or
sent to such subsequent purchaser by or on behalf of such Initial
Purchaser with or prior to the written confirmation of the sale
involved unless the alleged omission or alleged untrue statement was
not corrected in the Offering Memorandum 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 the Initial Purchasers, the
Initial Purchasers' officers or directors or any such controlling
person, and shall survive the delivery of the Notes.
(b) Each Initial Purchaser 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 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,
15
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 Offering
Memorandum, 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, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such Initial
Purchaser through the Representative expressly for use in connection
with the preparation of the Offering Memorandum (or of any amendment or
supplement thereto). The Initial Purchasers hereby furnish to the
Company in writing expressly for use in the Offering Memorandum (i) the
statements relating to the offering price on the front cover of the
Offering Memorandum, (ii) the fourth paragraph in the "Notice to
Investors" section of the Offering Memorandum, (iii) the third and
fourth sentences of the second paragraph under - "Risks Related to the
Notes - TXU Corp. cannot assure holders that an active trading market
will develop for the notes" in the "Risk Factors" section of the
Offering Memorandum, and (iv) the first, second and fourth sentences of
the second paragraph, the third and fourth sentences of the fifth
paragraph, and the first and second sentences of the sixth paragraph of
the "Plan of Distribution" section of the Offering Memorandum. The
Company acknowledges that the statements set forth in the preceding
sentence constitute the only information furnished in writing by or on
behalf of the Initial Purchasers expressly for use in connection with
the preparation of the Offering Memorandum. The indemnity agreement of
the Initial Purchasers 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 Initial Purchaser, or any
such controlling person, and shall survive the delivery of the Notes.
(c) The Company and the relevant Initial Purchaser 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 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
16
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 Initial Purchasers 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 Initial Purchasers on
the other hand from the offering of the Notes 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, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Initial Purchasers 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 9, the Initial Purchasers shall not be required to
contribute in
17
excess of the amount equal to the excess of (i) the total price at
which the Notes purchased by it were offered to Eligible Purchasers,
over (ii) the amount of any damages which the Initial Purchasers have
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
10. Termination. This Agreement may be terminated, at any time
prior to the Firm Closing Date, with respect to the Firm Notes, or any Option
Closing Date, with respect to the Option Notes, as the case may be, by the
Representative by written notice to the Company if after the date hereof and at
or prior to the Firm Closing Date or any Option Closing Date, as the case may
be, (a) there shall have occurred any suspension or material limitation of
trading of any of the Company's securities on the New York Stock Exchange, Inc.
("NYSE") or any general suspension of trading in securities on the 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 SEC
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 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 Representative,
to proceed with the offering or the delivery of the Firm Notes or the Option
Notes, as the case may be, on the terms and in the manner contemplated by the
Offering Memorandum. This Agreement may also be terminated at any time prior to
the Firm Closing Date, with respect to the Firm Notes, or any Option Closing
Date, with respect to the Option Notes, as the case may be, by the
Representative if, in the Representative's reasonable judgment, the subject
matter of any amendment or supplement to the Offering Memorandum (other than an
amendment or supplement relating solely to the activity of the Initial
Purchasers) 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 Notes. 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(f) 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, each Initial Purchaser 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
Notes from the Initial Purchasers.
18
12. Notices. All communications hereunder shall be in writing,
and, if to the Initial Purchasers, shall be mailed or delivered to the
Representative at the address set forth above, or, if to the Company, shall be
mailed or delivered to the Company at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000,
Attention: Treasurer.
19
By signature below in the space provided below for that purpose,
the Initial Purchasers indicate acceptance hereof, whereupon this letter and
acceptance shall constitute a binding agreement between the Company and the
Initial Purchasers in accordance with its terms.
Very truly yours,
TXU CORP.
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Authorized Representative
Accepted and delivered as of
the date first above written:
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
as Representative of the Initial Purchasers
20
SCHEDULE I
TXU CORP.
$475,000,000 Floating Rate Convertible Senior Notes due 2033
Principal
Amount of
Initial Purchasers Firm Notes
------------------ ----------
Credit Suisse First Boston LLC ........................ $142,500,000
X.X. Xxxxxx Securities Inc. ........................... 142,500,000
Citigroup Global Markets Inc. ......................... 118,750,000
Banc of America Securities LLC ........................ 71,250,000
------------
Total ............................................ $475,000,000
============
I-1
SCHEDULE II
[LETTERHEAD OF TXU CORP.]
[Date]
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as representative of the Initial Purchasers
named in Schedule I of the Purchase Agreement
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of TXU Corp.
(the "Company").
I have reviewed the Purchase Agreement dated July 9, 2003 between
the Company and the Initial Purchasers ("Purchase Agreement") and the Offering
Memorandum (as such term is defined in the Purchase Agreement). I have also
examined such other documents, made inquiries of other counsel engaged by the
Company and otherwise satisfied myself as to such matters as I have deemed
necessary as a basis for the legal conclusions expressed below; however, I have
not undertaken any independent search of judicial or governmental dockets or
records in any jurisdiction.
Upon the basis of the foregoing review and my familiarity with the
affairs and properties of the Company generally, and subject to the limitations
noted, other than as stated or referred to in the Offering Memorandum, 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.
Very truly yours,
II-1
SCHEDULE III
[LETTERHEAD OF HUNTON & XXXXXXXX LLP]
[Date]
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the Initial Purchasers
Ladies and Gentlemen:
We have acted as counsel to TXU Corp., a Corporation (the
"Company"), in connection with the issuance and sale by the Company of
$475,000,000 aggregate principal amount of its Floating Rate Convertible Senior
Notes due 2033 (the "Notes"), pursuant to the Purchase Agreement dated July 9,
2003 between the Company and the Initial Purchasers (the "Purchase Agreement").
Terms not otherwise defined herein are used with the meanings
ascribed to them in the Purchase Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Purchase Agreement, the Registration Rights Agreement, the Indenture and the
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 expressed below.
We have not examined the Notes, except specimens thereof, and have
relied upon a certificate of the Trustee under the Indenture as to the due
authentication and delivery of the Notes by the Trustee and as to the due
authorization, execution and delivery of the Indenture by the Trustee.
For purposes of the opinions expressed below, we have assumed (i)
the authenticity of all documents submitted to us as originals, (ii) the
conformity to the originals of all documents submitted as certified or
photostatic copies and the authenticity of the originals thereof, (iii) the
legal capacity of natural persons, (iv) the genuineness of signatures not
witnessed by us and (v) the due authorization, execution and delivery of all
documents by all parties and the validity, binding effect and enforceability
thereof (other than the authorization, execution and delivery of documents by
the Company and the validity, binding effect and enforceability thereof upon the
Company).
As to factual matters, we have relied upon representations and
warranties contained in the Purchase Agreement, upon certificates of officers of
the Company, and upon certificates of public officials. Whenever the phrase "to
our knowledge," "of which we are aware" or words of similar import are used
herein, they refer to the actual knowledge of the
III-1
attorneys of this firm involved in the representation of the Company in this
transaction without independent investigation.
Upon the basis of our familiarity with these transactions and with
the affairs and properties of the Company generally, and subject to the
qualifications and limitations set forth herein, we are 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 Purchase Agreement, the Registration Rights Agreement and
the Indenture, (b) to issue the Notes and the Shares and to incur the
indebtedness to be evidenced by the Notes and (c) to own its property and assets
and to conduct the business which it is now conducting.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
3. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, fraudulent transfer, moratorium and other laws affecting
the rights and remedies of creditors generally and general principles of equity
(whether considered in a proceeding in equity or at law) and subject to any
principles of public policy limiting the right to enforce the indemnification
and contribution provisions contained therein.
4. The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance,
fraudulent transfer, moratorium and other laws affecting the rights and remedies
of creditors generally and general principles of equity (whether considered in a
proceeding in equity or at law).
5. The Notes will, when issued and paid for as contemplated in the
Purchase Agreement, be 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, fraudulent conveyance,
fraudulent transfer, moratorium and other laws affecting the rights and remedies
of creditors generally and general principles of equity (whether considered in a
proceeding in equity or at law), and will be entitled to the benefits afforded
by the Indenture.
6. The Shares issuable upon conversion of the Notes have been
validly authorized and reserved for issuance and, when issued and delivered by
the Company in accordance with the terms of the Indenture, will be fully paid
and non-assessable, and the Rights, when issued in accordance with the
provisions of the Company's Rights Agreement dated as of February 19, 1999 (the
"Rights Agreement"), will be validly issued subject to the terms of the Rights
Agreement; the issuance of the Shares and the Notes is not subject to preemptive
or other similar rights arising by law, or to our knowledge, otherwise.
III-2
7. The statements made in the Offering Memorandum under the
captions "Description of the Notes," "Registration Rights" and "Description of
Common Stock," insofar as they purport to constitute summaries of the terms of
the Notes, the Indenture and the Registration Rights Agreement, constitute
accurate summaries of the terms thereof in all material respects.
8. Other than as stated or referred to in the Offering Memorandum,
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 of which we are aware; and, to our knowledge, no
such proceedings are contemplated.
9. It is not necessary in connection with (i) the offer, sale and
delivery of the Notes to the Initial Purchasers by the Company and (ii) the
offer, initial resales and delivery of the Notes by the Initial Purchasers
(assuming such offer, initial resales and delivery by the Initial Purchasers are
made in compliance with the provisions of the Purchase Agreement and in the
manner contemplated by the Offering Memorandum) to register the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended, it being understood that we do not express any opinion
concerning any sale of the Notes subsequent to the initial resales thereof by
the Initial Purchasers.
10. No 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
securities laws of the United States of America), as to which we do not express
any opinion) is legally required for the authorization of the issue and sale by
the Company of the Notes or the Shares issuable upon conversion of the Notes, as
contemplated by the Purchase Agreement.
11. Each Material Subsidiary 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 or other 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 Offering
Memorandum, and to our 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 Offering Memorandum, all of the issued and outstanding
common stock or other common ownership interests of each Material Subsidiary has
been authorized and, to our 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 except
as permitted by the Indenture.
12. Each document filed by the Company with the SEC pursuant to
the Exchange Act, and incorporated by reference in the Offering Memorandum
(except as to the
III-3
financial statements and schedules and other financial and statistical data
contained therein, as to which we do not express any belief), at the time it was
filed with the SEC, complied as to form in all material respects with the
Exchange Act and the applicable instructions, rules and regulations of the SEC
thereunder.
13. The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
In the course of the preparation of the information relating to
the Company contained in the Offering Memorandum, 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 Company's independent certified public
accountants who audited certain of the financial statements contained in the
Offering Memorandum, 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 Offering Memorandum and take no
responsibility therefor except as set forth in paragraph 7 above. However, our
examination of the information relating to the Company contained in the Offering
Memorandum 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, as to which we do not
express any belief), the Offering Memorandum, as of its date or on the date
hereof, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or 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, the
federal laws of the United States of America and, to the extent set forth
herein, 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 Xxxxxx Xxxx & Priest LLP,
New York, New York, of counsel to the Company.
Very truly yours,
III-4
SCHEDULE IV
[LETTERHEAD OF XXXXXX XXXX & PRIEST LLP]
[Date]
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the Initial Purchasers
Ladies and Gentlemen:
We have acted as counsel to TXU Corp., a Corporation (the
"Company"), in connection with the issuance and sale by the Company of
$475,000,000 aggregate principal amount of its Floating Rate Convertible Senior
Notes due 2033 (the "Notes"), pursuant to the Purchase Agreement dated July 9,
2003 between the Company and the Initial Purchasers (the "Purchase Agreement").
Terms not otherwise defined herein are used with the meanings ascribed to them
in the Purchase Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Purchase Agreement, the Registration Rights Agreement, the Indenture and the
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 expressed below. We have relied as to various
questions of fact upon the representations and warranties contained in the
Purchase Agreement, upon certificates of officers of the Company and upon
certificates of public officials.
We have not examined the Notes except specimens thereof, and have
relied upon a certificate of the Trustee under the Indenture as to the due
authentication and delivery of the Notes by the Trustee and as to due
authorization, execution and delivery of the Indenture by the Trustee. 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.
Based on the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that:
1. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
2. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, fraudulent transfer, moratorium and other laws affecting
the rights and remedies of creditors generally and general
IV-1
principles of equity (whether considered in a proceeding in equity or at law)
and subject to any principles of public policy limiting the right to enforce the
indemnification and contribution provisions contained therein.
3. The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance,
fraudulent transfer, moratorium and other laws affecting the rights and remedies
of creditors generally and general principles of equity (whether considered in a
proceeding in equity or at law).
4. The Notes will, when issued and paid for as contemplated in the
Purchase Agreement, be 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, fraudulent conveyance,
fraudulent transfer, moratorium and other laws affecting the rights and remedies
of creditors generally and general principles of equity (whether considered in a
proceeding in equity or at law), and will be entitled to the benefits afforded
by the Indenture.
5. The Shares issuable upon conversion of the Notes have been
validly authorized and reserved for issuance and, when issued and delivered by
the Company in accordance with the terms of the Indenture, will be fully paid
and non-assessable, and the Rights, when issued in accordance with the
provisions of the Company's Rights Agreement dated as of February 19, 1999 (the
"Rights Agreement"), will be validly issued subject to the terms of the Rights
Agreement; the issuance of the Shares and the Notes is not subject to preemptive
or other similar rights arising by law, or to our knowledge, otherwise.
6. The statements made in the Offering Memorandum under the
captions "Description of the Notes," "Registration Rights" and "Description of
Common Stock," insofar as they purport to constitute summaries of the terms of
the Notes, the Indenture and the Registration Rights Agreement, constitute
accurate summaries of the terms thereof in all material respects.
7. It is not necessary in connection with (i) the offer, sale and
delivery of the Notes to the Initial Purchasers by the Company and (ii) the
offer, initial resales and delivery of the Notes by the Initial Purchasers
(assuming such offer, initial resales and delivery by the Initial Purchasers are
made in compliance with the provisions of the Purchase Agreement and in the
manner contemplated by the Offering Memorandum) to register the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended, it being understood that we do not express any opinion
concerning any sale of the Notes subsequent to the initial resales thereof by
the Initial Purchasers.
8. No 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
securities laws of the United States of America), as to which we do not express
any opinion) is legally required for the authorization of the issue and sale by
IV-2
the Company of the Notes or the Shares issuable upon conversion of the Notes, as
contemplated by the Purchase Agreement.
9. Each document filed by the Company with the SEC pursuant to the
Exchange Act, and incorporated by reference in the Offering Memorandum (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
it was filed with the SEC, complied as to form in all material respects with the
Exchange Act and the applicable instructions, rules and regulations of the SEC
thereunder.
10. The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
We hereby confirm as our opinion the statements under the caption
"Material US Federal Income Tax Considerations" in the Offering Memorandum.
In the course of the preparation of the information relating to
the Company contained in the Offering Memorandum 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 Company's independent certified public accountants who audited
certain of the financial statements contained in the Offering Memorandum, 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 Offering Memorandum and take no responsibility therefor except as
set forth in paragraph 6 above. However, our examination of the information
relating to the Company contained in the Offering Memorandum and our discussions
did not disclose to us anything which gives us reason to believe that (except as
to financial statements and schedules and other financial and statistical data
contained therein, as to which we do not express any belief) the Offering
Memorandum, as of its date or on the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The opinion set forth in paragraph 5 hereof with respect to the
Rights is limited to the valid issuance of the Rights under the terms of the
Rights Agreement and the corporation laws of the State of Texas. In this
connection, we have not been asked to express, and accordingly do not express,
any opinion herein with respect to any other aspect of the Rights, the effect of
any equitable principles or fiduciary considerations relating to the adoption of
the Rights Agreement or the issuance of the Rights or the enforceability of any
particular provisions of the Rights 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
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 Hunton & Xxxxxxxx LLP,
IV-3
Dallas, Texas, counsel for the Company. We believe that you and we are justified
in relying on such opinion.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
IV-4
SCHEDULE V
[LETTERHEAD OF PILLSBURY WINTHROP LLP]
[Date]
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the Initial Purchasers
Ladies and Gentlemen:
We have acted as counsel to the Initial Purchasers in connection
with their several purchases from TXU Corp., a Texas limited liability company
(the "Company"), of $475,000,000 aggregate principal amount of its Floating Rate
Convertible Senior Notes due 2033 (the "Notes"), pursuant to the Purchase
Agreement dated July 9, 2003 between the Company and the Initial Purchasers (the
"Purchase Agreement"). Terms not otherwise defined herein are used with the
meanings ascribed to them in the Purchase 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 Hunton & Xxxxxxxx LLP, Dallas,
Texas, 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 Xxxxxx Xxxx & Priest LLP required by Section 8(a) of the
Purchase 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 Notes, except a specimen thereof, and have relied upon a certificate of the
Trustee under the Indenture as to the due authentication and delivery of the
Notes and as to the authorization execution and delivery by the Trustee of the
Indenture. As to various questions of fact material to this opinion, we have
relied upon the representations and warranties of the Initial Purchasers and
those of the Company and statements in the Offering Memorandum. In such review
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.
V-1
Based upon the foregoing, and subject to the further exceptions
and qualifications set forth below; we are of the opinion that:
1. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
2. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, fraudulent transfer, moratorium and other laws affecting
the rights and remedies of creditors generally and general principles of equity
(whether considered in a proceeding in equity or at law) and subject to any
principles of public policy limiting the right to enforce the indemnification
and contribution provisions contained therein.
3. The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance,
fraudulent transfer, moratorium and other laws affecting the rights and remedies
of creditors generally and general principles of equity (whether considered in a
proceeding in equity or at law).
4. The Notes will, when issued and paid for as contemplated in the
Purchase Agreement, be 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, fraudulent conveyance,
fraudulent transfer, moratorium and other laws affecting the rights and remedies
of creditors generally and general principles of equity (whether considered in a
proceeding in equity or at law), and will be entitled to the benefits afforded
by the Indenture.
5. The Shares issuable upon conversion of the Notes have been
validly authorized and reserved for issuance and, when issued and delivered by
the Company in accordance with the terms of the Indenture, will be fully paid
and non-assessable; the issuance of the Shares and the Notes is not subject to
preemptive or other similar rights arising by law, or to our knowledge,
otherwise.
6. The statements made in the Offering Memorandum under the
captions "Description of the Notes," Description of Common Stock," and
"Registration Rights," insofar as they purport to constitute summaries of the
terms of the Notes, the Indenture and the Registration Rights Agreement,
constitute accurate summaries of the terms thereof in all material respects.
7. It is not necessary in connection with (i) the offer, sale and
delivery of the Notes to the Initial Purchasers by the Company and (ii) the
offer, initial resales and delivery of the Notes by the Initial Purchasers
(assuming such offer, initial resales and delivery by the Initial Purchasers are
made in compliance with the provisions of the Purchase Agreement and in the
manner contemplated by the Offering Memorandum) to register the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended, it being
V-2
understood that we do not express any opinion concerning any sale of the Notes
subsequent to the initial resales thereof by the Initial Purchasers.
8. No 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 applicable blue sky laws or
securities laws of any jurisdiction (other than the federal laws of the United
States of America), as to which we do not herein express any opinion) is legally
required for the issuance and sale by the Company of the Notes or the Shares
issuable upon conversion of the Notes, as contemplated by the Purchase
Agreement.
While we have examined the Offering Memorandum, we have not
independently verified the accuracy, completeness or fairness of the statements
contained therein and take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph 6 above. In the course of
the preparation by the Company of the Offering Memorandum, we had discussions
with certain officers and representatives of, and counsel for, the Company, with
representatives of Deloitte & Touche LLP, the Company's independent accountants,
and with certain of your representatives. Our review of the information
contained in the Offering Memorandum and our discussions did not disclose to us
any information which gives us reason to believe that the Offering Memorandum,
as of its date or on the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in 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 in the Offering Memorandum.
This opinion is given to you solely for the use of the Initial
Purchasers in connection with the Purchase 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.
Very truly yours,
PILLSBURY WINTHROP LLP
V-3
Exhibit A
---------
[Form of Registration Rights Agreement]
A-1
