EXHIBIT 1(a)
TEXAS UTILITIES COMPANY, doing business as
TXU CORP
[Name of Security]
UNDERWRITING AGREEMENT
[Date]
as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
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corporation doing business as TXU Corp (the "Company"), proposes
to issue and sell severally to the underwriters named in Schedule
II hereto (the "Underwriters") the [Name of Security] of the
[<1>series,] designation, with the terms and in the [<1>number]
[<2>aggregate principal amount] specified in Schedule I hereto
(the "Securities").
2. Description of Securities.
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[1 The Securities shall have the preferences,
designations, rights, privileges, powers, restrictions,
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1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
limitations and qualifications set forth in the
Company's Restated Articles of Incorporation, as
amended, with respect to preference stock and the
proposed resolutions of the Company's Board of
Directors establishing and setting forth the terms of
the Securities, copies of which have been furnished to
Winthrop, Stimson, Xxxxxx & Xxxxxxx ("Counsel for the
Underwriters").]
[2 The Securities are to be issued pursuant to the
provisions of an Indenture (For Unsecured Debt
Securities), dated as of , between the
Company and The Bank of New York, as trustee (the
"Indenture Trustee"), said Indenture, together with any
amendments or supplements thereto, being hereinafter
referred to as the "Indenture".]
3. Representations and Warranties of the Company.
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The Company represents and warrants to the several Underwriters
that:
(a) The Company and three of its financing
subsidiaries (the "Trusts") have filed with the Securities
and Exchange Commission (the "Commission") a registration
statement on Form S-3 on , 1999 (Registration
Nos. 333- , 333- -01, 333- -02 and 333- -03)
for the registration under the Securities Act of 1933, as
amended (the "Securities Act") of $510,000,000 aggregate
amount of (i) the Company's Preference Stock, $25 par value,
(ii) the Company's unsecured debt securities ("Debt
Securities") and (iii) the preferred trust securities of the
Trusts, an equal principal amount of the Company's junior
subordinated debentures and guarantees and other obligations
of the Company in respect of such preferred trust
securities. Such registration statement ("Registration
Statement No. 333- ") became effective on ,
1999. The Company has also filed with the Commission under
the Securities Act, a registration statement on Form S-3 on
June 4, 1998 (Registration No. 333-56055) for the
registration of $2,070,000,000 aggregate amount of the
Company's (i) Debt Securities, (ii) Common Stock, without
par value, to be issued in settlement of Stock Purchase
Contracts, (iii) Stock Purchase Contracts and (iv) Stock
Purchase Units, of which all but $170,000,000 aggregate
amount of such securities have been previously issued. Such
registration statement, as amended by Amendment No. 1
thereto, was declared effective by the Commission on June
29, 1998. Such registration statement ("Registration
Statement No. 333-56055") was further amended by Post-
Effective Amendment No. 1, which was filed and became
effective on July 13, 1998. In addition, the Company and
TXU Capital I have filed with the Commission under the
Securities Act, a registration statement on Form S-3 on
December 10, 1998 (Registration Nos. 333-68663 and 333-
68663-01) for the registration of $400,000,000 aggregate
amount of (i) the Company's Debt Securities and (ii) certain
trust securities of TXU Capital I and related securities of
the Company, of which all but $170,000,000 aggregate
principal amount of the Company's Debt Securities have been
previously issued. Such registration statement
("Registration Statement No. 333-68663") became effective on
December 18, 1998. References herein to the term
"Registration Statement" as of any date shall be deemed to
refer to each of Registration Statement Nos. 333- ,
Registration Statement No. 333-56055 and Registration
Statement No. 333-68663, each as amended or supplemented to
such date, including all documents incorporated by reference
therein as of such date pursuant to Item 12 of Form S-3
("Incorporated Documents"). References herein to the term
"Prospectus" as of any given date shall be deemed to refer
to the combined prospectus relating to the securities
registered under Registration Statement 333- and the
securities registered and remaining unissued under
Registration Statement 333-56055 and 333-68663 that forms a
part of Registration Statement No. 333- , as amended or
supplemented as of such date (other than by amendments or
supplements relating to securities other than the
Securities), including all Incorporated Documents as of such
date and including any prospectus supplement relating to the
Securities; provided that if the Company files a
registration statement with the Commission pursuant to
Section 462(b) of the Securities Act Regulations (the "Rule
462(b) Registration Statement"), then after such filing, all
references to "Registration Statement" shall be deemed to
include the Rule 462(b) Registration Statement. References
herein to the term "Effective Date" shall be deemed to refer
to the time and date Registration Statement No. 333- ,
as the case may be, was declared effective. The Company
will not file any amendment to the Registration Statement or
supplement to the Prospectus on or after the date of this
Agreement and prior to the Closing Date, as hereinafter
defined, without prior notice to the Underwriters, or to
which Counsel for the Underwriters shall reasonably object
in writing. For the purposes of this Agreement, any
Incorporated Document filed with the Commission on or after
the date of this Agreement and prior to the Closing Date, as
hereinafter defined, shall be deemed an amendment or
supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus and the Indenture will fully comply in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and the applicable rules and
regulations of the Commission thereunder; on the Effective
Date the Registration Statement did not, and at the Closing
Date, as hereinafter defined, the Registration Statement
will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
on the Effective Date the Prospectus did not, and at the
Closing Date, as hereinafter defined, and on the date it is
filed with the Commission pursuant to Rule 424 of the
General Rules and Regulations of the Securities Act ("Rule
424"), the Prospectus will not, contain an untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and on said dates the Incorporated Documents,
taken together as a whole, fully complied or will fully
comply in all material respects with the applicable
provisions of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the applicable rules and
regulations of the Commission thereunder, and, when read
together with the Prospectus on said dates did not and will
not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information
furnished in writing to the Company by, or on behalf of, any
Underwriter for use in connection with the preparation of
the Registration Statement or the Prospectus or to any
statements in or omissions from the Statements of
Eligibility and Qualification under the Trust Indenture Act,
or amendments thereto, filed as exhibits to the Registration
Statement.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
(d) Each direct and indirect material subsidiary of
the Company has been incorporated and is validly existing as
a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and
to conduct its business as currently conducted and as set
forth in or contemplated by the Prospectus, and is qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify or be in good standing would not have
a material adverse effect on the business, property or
financial condition of the Company and its subsidiaries,
considered as a whole. Except as otherwise set forth in or
contemplated by the Registration Statement and the
Prospectus, all of the issued and outstanding shares of
capital stock of direct and indirect material subsidiaries
of the Company have been authorized and validly issued, are
fully paid and non-assessable 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. None of the outstanding shares of capital stock of
such material subsidiaries was issued in violation of
preemptive or other similar rights arising by operation of
law, under the charter or by-laws of any subsidiary or under
any agreement to which the Company or any subsidiary is a
party.
4. Purchase and Sale.
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(a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions
herein set forth, the Company shall sell to each of the
Underwriters, and each Underwriter shall purchase from the
Company, at the time and place herein specified, severally
and not jointly, the respective number or aggregate amount
of the Securities set forth opposite the name of such
Underwriter in Schedule II attached hereto, at the purchase
price or prices set forth in Schedule I hereto.
(b) The Company shall pay to the Underwriters a
commission equal to $ per Security.
5. Time and Place of Closing. Delivery of the
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Securities, against payment of the aggregate purchase price
therefor, plus accumulated dividends or interest, as the case may
be, thereon, if any, from the date of original issuance to the
date of payment for and delivery of the Securities by wire
transfer in federal funds shall be made at the offices of Xxxxxx
Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at
10:00 A.M., New York Time, on , or at such other
place, time and date as shall be agreed upon in writing by the
Company and you or established in accordance with the following
paragraph. The hour and date of such delivery and payment are
herein called the "Closing Date". The Securities shall be
delivered [to The Depository Trust Company or to The Bank of New
York, as custodian for The Depository Trust Company, in fully
registered global form registered in the name of Cede & Co. for
the respective accounts specified by you not later than the close
of business on the business day preceding the Closing Date] [to
you for the respective accounts of the several Underwriters of
certificates for the Securities registered in such names and in
such denominations as you shall request in writing not less than
three full business days prior to the Closing Date]. The Company
agrees to make the Securities available to you for checking
purposes not later than 10:00 A.M., New York Time, on the last
business day preceding the Closing Date at the offices of Xxxxxx
Xxxx & Priest, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or
at such other place as the Company may specify.
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the [1 number] [2 principal
amount] of the Securities that such Underwriter has agreed to
purchase and pay for hereunder, the Company shall immediately
give notice to the other Underwriters of the default of such
Underwriter, and the other Underwriters shall have the right
within 24 hours after the receipt of such notice to determine to
purchase, or to procure one or more others, who are members of
the National Association of Securities Dealers, Inc. ("NASD")
(or, if not members of the NASD, who are not eligible for
membership in the NASD and who agree (i) to make no sales within
the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein and (ii) in
making sales to comply with the NASD's Conduct Rules) and
satisfactory to the Company, to purchase, upon the terms herein
set forth, [1 number] [2 principal amount] of the Securities
that the defaulting Underwriter had agreed to purchase. If any
non-defaulting Underwriter or Underwriters shall determine to
exercise such right, such Underwriter or Underwriters shall give
written notice to the Company of the determination in that regard
within 24 hours after receipt of notice of any such default, and
thereupon the Closing Date shall be postponed for such period,
not exceeding three business days, as the Company shall
determine. If in the event of such a default no non-defaulting
Underwriter shall give such notice, then this Agreement may be
terminated by the Company, upon like notice given to the non-
defaulting Underwriters, within a further period of 24 hours. If
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 Underwriter to
purchase and pay for the respective number or amount of the
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1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
Securities that it had agreed to purchase hereunder as
hereinabove provided and, in addition, the [1 number]
[2 principal amount] of the Securities that the defaulting
Underwriter shall have so failed to purchase up to a number
or amount thereof equal to one-ninth (1/9) of the number or
amount of Securities that such non-defaulting Underwriter
has otherwise agreed to purchase hereunder, and/or
(b) to procure one or more persons, reasonably
acceptable to the Representatives, 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), to purchase, upon the terms
herein set forth, either all or a part of the [number]
[amount] of the Securities that such defaulting Underwriter
had agreed to purchase or that portion thereof that the
remaining Underwriters shall not be obligated to purchase
pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday that
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees
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that:
(a) It will promptly deliver to each of you a signed
copy of the Registration Statement as originally filed or,
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1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
to the extent a signed copy is not available, a conformed
copy, certified by an officer of the Company to be in the
form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 as soon as practicable and
advise you of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use
its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with the
Commission pursuant to Rule 424 as in the opinion of Counsel
for the Underwriters a prospectus covering the Securities is
required by law to be delivered in connection with sales by
an Underwriter or dealer, any event relating to or affecting
the Company or of which the Company shall be advised in
writing by you shall occur that in the Company's reasonable
opinion after consultation with Counsel for the Underwriters
should be set forth in a supplement to, or an amendment of,
the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is
delivered to a purchaser, the Company will, at its expense,
amend or supplement the Prospectus by either (i) preparing
and furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an
appropriate filing pursuant to Section 13 of the Exchange
Act, which will supplement or amend the Prospectus so that,
as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the
expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver
a prospectus after the expiration of nine months from the
date the Prospectus is filed with the Commission pursuant to
Rule 424, the Company, upon such Underwriter's request, will
furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemental
prospectus or supplements to the Prospectus complying with
Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Securities for offer and sale under the blue-sky laws of
such jurisdictions as you may designate, provided that the
Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be
unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Securities as provided in Section 5 hereof, (iii) the
qualification of the Securities under blue-sky laws
(including counsel fees not to exceed $7,500), and (iv) the
printing and delivery to the Underwriters of reasonable
quantities of the Registration Statement and, except as
provided in Section 6(d) hereof, of the Prospectus. The
Company shall not, however, be required to pay any amount
for any expenses of yours or any of the Underwriters, except
that, if this Agreement shall be terminated in accordance
with the provisions of Section 7, 8 or 10 hereof, the
Company will reimburse you for the fees and disbursements of
Counsel for the Underwriters, whose fees and disbursements
the Underwriters agree to pay in any other event, and will
reimburse the Underwriters for their reasonable out-of-
pocket expenses, in an aggregate amount not exceeding
$5,000, incurred in contemplation of the performance of this
Agreement. The Company shall not in any event be liable to
any of the several Underwriters for damages on account of
loss of anticipated profits.
[2 (h) During the period from the date of this
Agreement to the Closing Date, the Company will not, without
the prior written consent of the Representatives, directly
or indirectly, publicly issue, sell, offer or contract to
sell, in the market in which the Securities are being
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2 For use in connection with Unsecured Debt Securities.
offered and sold, any securities of the Company or any of
its subsidiaries which are of the same class as the
Securities.]
7. Conditions of Underwriters' Obligations. The
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obligations of the Underwriters to purchase and pay for the
Securities 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 Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 5:30 P.M., New York
Time, on the second business day after the date of this
Agreement, or such other time and date as may be approved by
you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P., General Counsel for
the Company, Xxxxxx Xxxx & Priest LLP, of counsel for the
Company, and Winthrop, Stimson, Xxxxxx & Xxxxxxx, Counsel
for the Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV and V hereto (i)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Securities shall be supplemented or amended after the
Prospectus shall have been filed with the Commission
pursuant to Rule 424, with any changes therein necessary to
reflect such supplementation or amendment.
(d) On and as of the Closing Date, you shall have
received from Deloitte & Touche LLP a letter to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder, (ii) in their opinion, the financial
statements audited by them and included or incorporated by
reference in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the applicable
published rules and regulations thereunder, (iii) on the
basis of a reading of the unaudited amounts of operating
revenues and net income included or incorporated by
reference in the Prospectus and the related financial
statements from which these amounts were derived, the latest
available unaudited financial statements of the Company and
the minute books of the Company and inquiries of officers of
the Company and of certain material direct or 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 Underwriters'
purposes), nothing has come to their attention which caused
them to believe that (A) the unaudited financial statements
of the Company incorporated by reference in the Prospectus
were not determined in accordance with generally accepted
accounting principles applied on a basis substantially
consistent with that of the corresponding amounts in the
latest available audited financial statements of the
Company, (B) the unaudited amounts of operating revenues and
net income of the Company included or incorporated by
reference in the Prospectus were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited statements of income of the Company,
incorporated by reference in the Prospectus, (C) for the
twelve months ended December 31, 1998, if available, there
were any decreases in operating revenues or net income as
compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior
to the date of such letter, there was any change in the
capital stock of the Company, short-term bank loans,
commercial paper, or long-term debt of the Company or
decrease in its net assets, in each case as compared with
amounts shown in the most recent balance sheets of the
Company incorporated by reference in the Prospectus, except
in all instances for changes or decreases that the
Prospectus discloses have occurred or may occur or which are
occasioned by the declaration of a regular quarterly
dividend or the acquisition of long-term debt for sinking
fund purposes, or which are described in such letter, and
(iv) they have compared the dollar amounts (or percentages
or ratios derived from such dollar amounts) and other
financial information included or incorporated by reference
in the Registration Statement and the Prospectus as
reasonably requested by you (in each case to the extent that
such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company 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.
(e) Since the most recent dates as of which
information is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole,
and, since such dates, there shall not have been any material
transaction entered into by the Company and its subsidiaries,
in each case other than transactions in the ordinary course
of business and transactions contemplated by the
Registration Statement or Prospectus, and at the Closing
Date you shall have received a certificate to such effect
dated the Closing Date and signed by an officer of the
Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Securities as described in
the Prospectus shall have been satisfactory in form and
substance to Counsel for the Underwriters.
[2 (g) At the Closing Date, (i) the Securities shall
be rated at least by Xxxxx'x Investor
Services ("Moody's"), and Standard & Poor's Corporation
("S&P"), respectively, and the Company shall have delivered
to you a letter from each such rating agency, or other
evidence satisfactory to you, confirming that the have such
ratings, and (ii) neither Moody's nor S&P shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of the
Securities, any other securities of the Company or a special
purpose subsidiary of the Company which are of the same
class as the Securities or the financial condition of the
Company.]
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated by the Representatives upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections
6(g) and 9 hereof.
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2 For use in connection with Unsecured Debt Securities.
8. Conditions of Company's Obligations. The
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obligation of the Company to deliver the Securities shall be
subject to the conditions that the Prospectus shall have been
filed with the Commission pursuant to Rule 424 prior to 5:30
P.M., New York Time, on the second business day after the date of
this Agreement or such other time and date as may be approved by
the Company, and no stop order suspending the effectiveness of
the Registration Statement shall be in effect at the Closing Date
and no proceedings for that purpose shall be pending before, or
threatened by, the Commission at the Closing Date. In case these
conditions shall not have been fulfilled, this Agreement may be
terminated by the Company upon notice thereof to you. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
9. Indemnification.
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(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading; provided, however, that
the indemnity agreement contained in this Section 9 shall
not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished in writing
to the Company by or on behalf of any Underwriter, through
the Representatives or Counsel for the Underwriters, for use
in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof, or arising out of, or based upon,
statements in or omissions from that part of the
Registration Statement that shall constitute the Statements
of Eligibility and Qualification under the Trust Indenture
Act of any Trustee with respect to any indenture qualified
pursuant to the Registration Statement; and provided
further, that the indemnity agreement contained in this
Section 9 shall not inure to the benefit of any Underwriter
(or of any person controlling such Underwriter) on account
of any such losses, claims, damages, liabilities, expenses
or actions arising from the sale of the Securities to any
person if a copy of the Prospectus (including any amendment
or supplement thereto if any amendments or supplements
thereto shall have been furnished to the Underwriters at or
prior to the time of written confirmation of the sale
involved) (exclusive of the Incorporated Documents) shall
not have been given or sent to such person by or on behalf
of such Underwriter with or prior to the written
confirmation of the sale involved unless the alleged
omission or alleged untrue statement was not corrected in
the Prospectus at the time of such written confirmation.
The indemnity agreement of the Company contained in this
Section 9 and the representations and warranties of the
Company contained in Section 3 hereof shall remain operative
and in full force and effect regardless of any termination
of this Agreement or of any investigation made by or on
behalf of any Underwriter or any such controlling person,
and shall survive the delivery of the Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its officers and directors, and each
person who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the
Company by or on behalf of such Underwriter, through the
Representatives or Counsel for the Underwriters, for use in
connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Company in writing expressly for use in the Prospectus.
[indicate topics addressed and location in the Prospectus.]
The indemnity agreement of the respective Underwriters
contained in this Section 9 shall remain operative and in
full force and effect regardless of any termination of this
Agreement or of any investigation made by or on behalf of
the Company, its directors or its officers, any such
Underwriter, or any such controlling person, and shall
survive the delivery of the Securities.
(c) The Company and the several Underwriters each
shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder,
but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel
chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall
be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of
such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them; provided, however,
if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for
the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in
the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the
indemnifying party shall not be liable for the expenses of
more than one separate counsel representing the indemnified
parties who are parties to such action).
(d) If the indemnification provided for in
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 fault of each indemnifying party on the one
hand and the indemnified party on the other in connection
with the statements or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of
the Securities pursuant to this Agreement, 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 each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
above. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute in excess of the
amount equal to the excess of (i) the total price at which
the Securities underwritten by it were offered to the
public, over (ii) the amount of any damages which such
Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or
alleged omission. The obligations of each Underwriter to
contribute pursuant to this Section 9 are several and not
joint and shall be in proportion to the [number] [principal
amount] of Securities set forth opposite its name in
Schedule II hereto.
10. Termination. This Agreement may be terminated, at
-----------
any time prior to the Closing Date, by the Representatives if (a)
after the date hereof and at or prior to the Closing Date 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, Inc.
("AMEX") or the NASDAQ Stock Market, Inc. ("NASDAQ") or there
shall have been established by the NYSE, AMEX or NASDAQ or by the
Commission or by any federal or state agency or by the decision
of any court, any general limitation on prices for such trading
or any general restrictions on the distribution of securities, or
a general banking moratorium declared by New York or federal
authorities, or (b) there shall have occurred any (i) new
material outbreak of hostilities or (ii) new material other
national or international calamity or crisis, 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, in the reasonable judgment of the Representatives,
for the Underwriters to enforce contracts for the sale of the
Securities. This Agreement may also be terminated at any time
prior to the Closing Date by the Representatives if, in their
reasonable judgment, the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus (other
than an amendment or supplement relating solely to the activity
of any Underwriter or Underwriters) prepared and issued by the
Company after the effectiveness of this Agreement shall have
disclosed a material adverse change in the business, property or
financial condition of the Company and its subsidiaries considered
as a whole, whether or not in the ordinary course of business,
that has materially impaired the marketability of the
Securities. Any termination hereof pursuant to this Section 10
shall be without liability of any party to any other party except
as otherwise provided in Sections 6(g) and 9 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
-------------
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement shall inure to the benefit of the Company,
the several Underwriters and, with respect to the provisions of
Section 9 hereof, each director, officer and controlling person
referred to in said Section 9, and their respective successors.
Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this
Agreement. The term "successor" as used herein shall not include
any purchaser, as such purchaser, of any of the Securities from
any of the several Underwriters.
12. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: Treasurer.
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
TEXAS UTILITIES COMPANY, doing
business as TXU Corp
By
----------------------------
Accepted and delivered as of
the date first above written
[Representatives of Underwriters]
By:
By:
----------------------------------
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives:
Designation:
[1 Liquidation Preference Amount:]
[2 Principal Amount:]
Date of Maturity:
[1 Dividend Rate:]
[2 Interest Rate:]
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Unsecured Debt Securities.
SCHEDULE II
-----------
TEXAS UTILITIES COMPANY, doing business as TXU CORP
[Number] [Principal
Amount] of
Name Securities
---- ----------
Total
==========
SCHEDULE III
------------
[LETTERHEAD OF XXXXXXX, XXXXXXXX & XXXXXXXXXX, L.L.P.]
[Date]
as Representatives of the Underwriters named in Schedule II
to the Underwriting Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Company, doing business as TXU Corp (the "Company") in connection
with the issuance and sale by the Company of of its
----
("Securities") pursuant to the Underwriting
-------------
Agreement dated among the Company and you (the
--------------
"Underwriting Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, [2 the
Indenture], and the Securities. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials.
[2 We have relied upon a certificate of the Indenture Trustee as
to the authentication of the Securities.] In our examination we
---------------
2 For use in connection with Debt Securities.
have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
() The Company is a corporation duly authorized,
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
Underwriting Agreement [2 and the Indenture], (b) to issue the
Securities [2 and to incur the indebtedness to be evidenced
thereby] and (c) to own its property and assets and to conduct
the business which it is now conducting.
() The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
[1 () The Securities conform as to legal matters with
the statements concerning them in the Prospectus, have been duly
and validly authorized and issued, are fully paid and
nonassessable, and are entitled to the rights, privileges and
preferences set forth in the Articles of Incorporation, as
amended, of the Company.]
[2 () The Indenture has been duly qualified under the
Trust Indenture Act.
() The Securities and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Securities
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.]
() The statements made in the Prospectus under the
captions [Insert titles of sections describing the Securities in
the Prospectus and Prospectus Supplement], insofar as they
purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Debt Securities.
() The Company is not, and after giving effect to the
issuance and sale of the Securities will not be, directly or
indirectly controlled by, or acting on behalf of any person which
is, an investment company within the meaning of the Investment
Company Act of 1940, as amended.
() Other than as stated in the Registration Statement
and the Prospectus, there are no material pending legal
proceedings to which the Company is a party or of which property
of the Company is the subject which depart from the ordinary
routine litigation incident to the kind of business conducted by
the Company, and to our best knowledge no such proceedings are
contemplated;
() The Registration Statement, and the Prospectus at
the time it was filed with the Commission pursuant to Rule 424
under the Securities Act (except for financial statements and
schedules and other financial and statistical data contained or
incorporated by reference therein and except for that part of the
Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) complied as to form in all
material respects with the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder;
the Incorporated Documents (except as to the financial statements
and schedules and other financial and statistical data contained
therein, as to which we do not express any opinion), at the time
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and
the applicable instructions, rules and regulations of the
Commission thereunder; and the Registration Statement has become
and is effective under the Securities Act and, to our best
knowledge, no proceedings for a stop order with respect thereto
are pending or threatened under Section 8 of the Securities Act.
() No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Securities.
() Each Principal Subsidiary (as defined below) of
the Company has been incorporated and is validly existing and
subsisting as a corporation under the laws of the jurisdiction of
its incorporation; each Principal Subsidiary of the Company has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and
as set forth in or contemplated by the Prospectus, and to our
knowledge, is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as a whole; and except as set forth in
or contemplated by the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of each Principal
Subsidiary of the Company has been authorized and is non-
assessable and, to our knowledge, all such shares 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. For purposes of this
opinion, the term "Principal Subsidiary" shall mean,
collectively, the following companies: TXU Eastern Holdings
Limited, Eastern Energy Limited, Texas Utilities Australia Pty.
Ltd., The Energy Group Limited, Eastern Group plc, Eastern
Electricity plc, Eastern Generation Limited, Eastern Natural Gas
Limited, Eastern Power and Energy Trading Limited, Texas Energy
Industries Inc., ENSERCH Corporation, Lufkin-Conroe
Communications, Southwestern Electric Service Company, Texas
Utilities Electric Company, Texas Utilities Fuel Company, Texas
Utilities Mining Company and Texas Utilities Services Inc.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives and
certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte &
Touche LLP, the Company's independent certified public
accountants who audited certain of the financial statements
contained in documents incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in paragraph [Insert
number of paragraph referring to Sections of the Prospectus]
above. However, our examination of the information relating to
the Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except as to financial
statements and schedules and other financial and statistical data
and except as to that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any
belief) (i) the Registration Statement, as of the Effective Date,
included an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) the
Prospectus at the time it was filed with the Commission pursuant
to Rule 424, included, or on the date hereof includes an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of Xxxxxx Xxxx & Priest LLP, New
York, New York, of Counsel to the Company; as to matters of the
law of the United Kingdom, we have, with your consent relied upon
the opinions of X.X. Lean, Group Solicitor of Eastern Group plc,
and as to all matters of law of the Commonwealth of Australia we
have with your consent relied upon the opinion of Xxxxx &
XxXxxxxx, Xxxxxx, Commonwealth of Australia, Counsel to Texas
Utilities Australia Pty. Ltd.
Very truly yours,
XXXXXXX, XXXXXXXX &
XXXXXXXXXX, L.L.P.
By:
-------------------------
A Partner
Schedule IV
[LETTERHEAD OF XXXXXX XXXX & PRIEST LLP]
New York, New York
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company,
doing business as TXU Corp (the "Company") in connection with the
issuance and sale by the Company of of its
---- ---------------
"Securities") pursuant to the Underwriting Agreement dated
among the Company and you (the "Underwriting
--------------
Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, [2 the
Indenture], and the Securities. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials. [2
We have relied upon a certificate of the Indenture Trustee as to
the authentication of the Securities.] In our examination we
have assumed the genuineness of all signatures and the
---------------
2 For use in connection with Debt Securities.
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
() The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
[1 () The Securities conform as to legal matters with
the statements concerning them in the Prospectus, have been duly
and validly authorized and issued, are fully paid and
nonassessable, and are entitled to the rights, privileges and
preferences set forth in the Articles of Incorporation, as
amended, of the Company.]
[2 () The Indenture has been duly qualified under the
Trust Indenture Act.
() The Securities and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Securities
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.]
() The statements made in the Prospectus under the
captions [Insert titles of sections describing the Securities in
the Prospectus and Prospectus Supplement], insofar as they
purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
() The Company is not, and after giving effect to the
issuance and sale of the Securities will not be, directly or
indirectly controlled by, or acting on behalf of any person which
is, an investment company within the meaning of the Investment
Company Act of 1940, as amended.
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Debt Securities.
() The Registration Statement, and the Prospectus at
the time it was filed with the Commission pursuant to Rule 424
under the Securities Act (except for financial statements and
schedules and other financial and statistical data contained or
incorporated by reference therein and except for that part of the
Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) complied as to form in all
material respects with the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder;
the Incorporated Documents (except as to the financial statements
and schedules and other financial and statistical data contained
therein, as to which we do not express any opinion), at the time
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and
the applicable instructions, rules and regulations of the
Commission thereunder; and the Registration Statement has become
and is effective under the Securities Act and, to our best
knowledge, no proceedings for a stop order with respect thereto
are pending or threatened under Section 8 of the Securities Act.
() No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Securities.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives and
certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte &
Touche LLP, the Company's independent certified public
accountants who audited certain of the financial statements
contained in documents incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in paragraph [Insert
number of paragraph referring to Sections of the Prospectus]
above. However, our examination of the information relating to
the Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except as to financial
statements and schedules and other financial and statistical data
and except as to that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any
belief) (i) the Registration Statement, as of the Effective Date,
included an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) the
Prospectus at the time it was filed with the Commission pursuant
to Rule 424, included, or on the date hereof includes an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
SCHEDULE V
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement as defined herein
c/o
Ladies and Gentlemen:
We have acted as counsel to you and the several
Underwriters in connection with the issuance and sale by the
Texas Utilities Company, doing business as TXU Corp (the
"Company") of of its ("Securities")
---- -------------
pursuant to the Underwriting Agreement dated
--------------
among the Company and you (the "Underwriting Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx,
L.L.P., Dallas, Texas, General Counsel for the Company, as to the
matters covered in such opinion relating to Texas law. We have
reviewed such opinion and believe that it is satisfactory and
that you and we are justified in relying thereon.
We have, 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. As to various questions of
fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement hereinafter mentioned. In such examination we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us and the genuineness and conformity
to original documents of documents submitted to us as certified
or photostatic copies.
Based upon the foregoing, we are of the opinion that:
() The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
[1 () The Securities conform as to legal matters with
the statements concerning them in the Prospectus, have been duly
and validly authorized and issued, are fully paid and
nonassessable, and are entitled to the rights, privileges and
preferences set forth in the Articles of Incorporation, as
amended, of the Company.]
[2 () The Indenture has been duly qualified under the
Trust Indenture Act.
() The Securities and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Securities
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.]
() The statements made in the Prospectus under the
captions [Insert titles of sections describing the Securities in
the Prospectus and Prospectus Supplement], insofar as they
purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
() No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the blue-sky laws of any jurisdiction) is legally
required for the authorization of the issue and sale by the
Company of the Securities.
---------------
1 For use in connection with Preference Stock.
2 For use in connection with Debt Securities.
() The Registration Statement, and the Prospectus at
the time it was filed with the Commission pursuant to Rule 424
under the Securities Act (except for financial statements and
schedules and other financial and statistical data contained or
incorporated by reference therein and except for that part of the
Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) complied as to form in all
material respects with the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 5 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, and representatives of certain of its
subsidiaries, with counsel for the Company, with Deloitte &
Touche LLP, the Company's independent public accountants who
audited certain of the financial statements incorporated by
reference in the Registration Statement and the Prospectus, and
with certain of your representatives. Our examination of the
Registration Statement and the Prospectus and our discussions did
not disclose to us any information which gives us reason to
believe that at the Effective Date the Registration Statement
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the time it was filed with the Commission pursuant
to Rule 424, or at the date hereof, included or includes an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements and schedules or other financial or
statistical data contained or incorporated by reference in the
Registration Statement or Prospectus or as to that part of the
Registration Statement that constitutes the Forms T-1.
This opinion is given to you solely for the use of the
several Underwriters in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon by any other person or for any other purpose.
Very truly yours,
