EXHIBIT 1(a)
TXU CORP.
[Name of Security]
UNDERWRITING AGREEMENT
[Date]
as representative[s] ([collectively, ]the "Representative")
of the underwriters named in Schedule II hereto
(the "Underwriters")
Ladies and Gentlemen:
1. Introduction. TXU Corp., a Texas corporation (the "Company"),
proposes to issue and sell severally to the Underwriters [/1/an aggregate of
_________ shares of the Company's Common Stock, without par value (the "Common
Stock"), along with the preference stock purchase rights appurtenant thereto
(the "Rights," and together with the Common Stock, the "Shares" or
"Securities")] [/2/an aggregate of _________ shares of the Company's Preference
Stock, $25 par value per share, of the ____ series, having the designation and
with the terms specified in Schedule I hereto (the "Securities")] [/3/$_________
aggregate principal amount of the Company's debt securities having the
designation and with the terms specified in Schedule I hereto (the
"Securities")] [/4/the Company's new securities ("Initial Securities"). [modify
to reflect transaction: The Initial Securities will consist of an aggregate of
________ equity units of the Company, initially consisting of an aggregate of
_________ of the Company's corporate units ("Corporate Units"), with a stated
amount per Corporate Unit of $___ (the "Stated Amount")]].
2. Description of Securities.
[/2/The Securities shall have the preferences, designations, rights,
privileges, powers, restrictions, limitations and qualifications set forth
in the Company's Restated Articles of Incorporation, as amended, with
respect to Preference Stock and the resolution of the Special Committee of
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1 For use in connection with Common Stock.
2 For use in connection with Preference Stock.
3 For use in connection with Debt Securities.
4 For use in connection with Stock Purchase Units.
the Company's Board of Directors establishing and setting forth the terms
of the Securities, copies of which have been furnished to Pillsbury
Winthrop LLP ("Counsel for the Underwriters").]
[/3/The Securities are to be issued pursuant to the provisions of an
Indenture (For Unsecured Debt Securities, Series __), to be dated as of
_________ __, 200_, between the Company and The Bank of New York, as
trustee (the "Trustee"), said Indenture, together with any amendments or
supplements thereto, being hereinafter referred to as the "Indenture," and
an Officer's Certificate establishing the terms of the Securities, to be
dated on or about ___________ __, 200_, in each case, with the material
terms described in the Prospectus (as hereinafter defined).
[/4/Modify to reflect transaction: Each Corporate Unit will initially
consist of a unit comprised of (a) a stock purchase contract (a "Purchase
Contract") under which (i) the holder will purchase from the Company not
later than ___________ __, 200_ (the "Purchase Contract Settlement Date"),
for $__ in cash, a number of newly issued 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"), determined as provided in the Purchase
Contract, and (ii) the Company will pay the holder unsecured contract
adjustments payments ("Contract Adjustment Payments") at the rate of _____%
of the Stated Amount per annum until the Purchase Contract Settlement Date,
subject to the right of the Company to defer such payments, and (b)
beneficial ownership of a ___% Series _ Senior Note of the Company due
___________ __, 200_ (a "Senior Note"), having a principal amount of $__.
The Senior Notes will be issued pursuant to the provisions of an Indenture
(For Unsecured Debt Securities Series _), to be dated as of ___________ __,
200_, between the Company and The Bank of New York, as trustee (the
"Trustee"), said Indenture, together with any amendments or supplements
thereto, being hereinafter referred to as the "Indenture," and an Officer's
Certificate establishing the terms of the Senior Notes to be dated on or
about ___________ __, 200_, in each case, with the material terms described
in the Prospectus (as hereinafter defined). In accordance with the terms of
the Purchase Contract Agreement, to be dated as of ___________ __, 200_,
between The Bank of New York, as purchase contract agent, attorney-in-fact
and trustee (the "Purchase Contract Agent"), and the Company (the "Purchase
Contract Agreement"), the Senior Notes constituting a part of the Corporate
Units will be pledged by the Purchase Contract Agent, on behalf of the
holders of the Corporate Units, to _________________, as collateral agent,
custodial agent and securities intermediary (the "Collateral Agent")
pursuant to the Pledge Agreement, to be dated as of ___________ __, 200_
(the "Pledge Agreement"), among the Company, the Purchase Contract Agent
and the Collateral Agent, to secure the holders' obligations to purchase
Shares pursuant to the Purchase Contract. Under certain circumstances, the
Senior Notes will be subject to remarketing pursuant to a Remarketing
Agreement, to be dated as of ___________ __, 200_, between
____________________________ and the Company (the "Remarketing
Agreement").]
3. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters that:
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(a) The Company, TXU Capital III and TXU Capital IV have filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 on _______, __ 200_ (Registration Nos. 333-____,
333-____-01 and 333-____-02) for the registration under the Securities Act
of 1933, as amended (the "Securities Act") of $___________ aggregate amount
of (i) the Company's Common Stock, without par value, and related
Preference Stock purchase rights, (ii) the Company's Preference Stock, $25
par value, (iii) the Company's unsecured debt securities ("Debt
Securities"), (iv) contracts to purchase shares of Common Stock ("Stock
Purchase Contracts"), (v) stock purchase units, each representing ownership
of a Stock Purchase Contract and Debt Securities or obligations of third
parties ("Stock Purchase Units") and (vi) the preferred trust securities
(the "Trust Securities") of TXU Capital III and TXU Capital IV, an equal
principal amount of the Company's junior subordinated debentures and
guarantees and other obligations of the Company in respect of such Trust
Securities. Such registration statement ("Registration Statement No.
333-____") was declared effective by the Commission on _________ __, 200_.
References herein to the term "Registration Statement" as of any date shall
be deemed to refer to Registration Statement No. 333-____, 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"); 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 "Prospectus" as of any given date shall be deemed to refer to
the prospectus, including any preliminary prospectus, relating to the
securities registered under 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. References herein to the term
"Effective Date" shall be deemed to refer to the later of the time and date
Registration Statement No. 333-____, any post-effective amendment to
Registration Statement No. 333-____ or any Rule 462(b) Registration
Statement was declared effective or the time and date of the filing
thereafter of the Company's most recent Annual Report on Form 10-K if such
filing is made prior to the Closing Date, as hereinafter defined. The
Company will not file any amendment to the Registration Statement or
supplement to the Prospectus on or after the date of this agreement (this
"Agreement") and prior to the Closing Date, as hereinafter defined, without
prior notice to the Underwriters, or to which [/1,3,4/Pillsbury Winthrop
LLP ("Counsel for the Underwriters")] [/2/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 [/3/and the Indenture] [/4/ ,
the Indenture and the Purchase Contract Agreement] will fully comply in all
material respects with the applicable provisions of the Securities Act,
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[/3,4/the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"),] and the applicable rules and regulations of the Commission
thereunder; on the Effective Date, the Registration Statement did not, and
at the 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, through the Representative, 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 under the Trust Indenture Act [/1,2/, of 1939, as amended
("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, charter, by-laws or other agreement or instrument
to which the Company is now a party.
(d) Each Material Subsidiary (as defined below) 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, has the corporate or other power
and authority to own, lease and operate its properties and to conduct its
business as currently conducted and as set forth in or contemplated by the
Prospectus, and is qualified as a foreign corporation or other legal entity
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or be in good standing would not have a material adverse effect
on the business, property or financial condition of the Company and its
subsidiaries, considered as a whole. Except as otherwise set forth in or
contemplated by the Registration Statement and the Prospectus, all of the
issued and outstanding shares of capital stock or other ownership interests
of the 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
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security interest, mortgage, pledge, lien, encumbrance, claim or equity
except as permitted by the various indentures, mortgages, deeds of trust or
other agreements to which the Company is party. None of the outstanding
shares of capital stock or other ownership interests of the Material
Subsidiaries was 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:
______________________.
(e) 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 Securities.
(f) The financial statements included in the Registration Statement
and the Prospectus, together with the related schedules and notes, present
fairly, in all material respects, the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; except as otherwise
indicated in the Registration Statement, 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, included in the Registration Statement
present fairly, in all material respects, in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present
fairly, in all material respects, the information shown therein and, except
as otherwise indicated therein, have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement.
4. Purchase and Sale. 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.
[/1/ The Underwriters agree to make a public offering of the Shares.]
[/4/ The Senior Notes constituting a part of the Corporate Units will
be pledged to the Collateral Agent to secure holders' obligations to purchase
Shares under the Purchase Contracts. Such pledge shall be effected by the
delivery to the Collateral Agent of the Senior Notes to be pledged in
certificated form endorsed in blank at the Closing Date in accordance with the
Pledge Agreement.]
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5. Time and Place of Closing. Delivery of the Securities against
payment of the aggregate purchase price, plus [/4/ accumulated contract
adjustment payments,] accumulated dividends or accrued 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, therefor by wire transfer in federal funds
[/4/, and against delivery to the Collateral Agent of the Senior Notes
constituting a part of the Initial Securities] by the Underwriters or on their
behalf shall be made at the offices of Xxxxxx Xxxx & Priest LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at __:00 A.M., New York time, on ________ __, 200_,
or at such other place, time and date as shall be agreed upon in writing by the
Company and the Representative 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 issued in the form of one or more global
securities in fully registered form (the "Global Securities"). The Global
Securities shall be delivered on the Closing Date, or 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, registered in the name of
Cede & Co., for the respective accounts of the Underwriters or as otherwise
directed by the Representative in writing not later than the close of business
on the second business day prior to the Closing Date. The Company agrees to make
the Securities 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 Closing Date 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 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 [/1,2,4/number] [/3/principal amount] of the Securities that such
Underwriter has agreed to purchase and pay for hereunder, the Company shall
immediately give notice to the non-defaulting Underwriters of the default of
such defaulting Underwriter, and the non-defaulting Underwriters shall have the
right within 24 hours after the receipt of such notice to determine to purchase,
or to procure one or more other underwriters, 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 [/1,2,4/number] [/3/principal
amount] of the Securities that the defaulting Underwriter had agreed but failed
or refused to purchase. If any non-defaulting Underwriter or Underwriters shall
give written notice to the Company of such determination within 24 hours after
receipt of notice of any such default, 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 default, no non-defaulting Underwriter shall give such
notice, or the non-defaulting Underwriter or Underwriters shall within such 24
hour period give written notice to the Company that it or they shall not
exercise such right, then this Agreement may be terminated by the Company, upon
like notice given to the non-defaulting Underwriter or Underwriters, within a
further period of 24 hours. If in such case the Company shall not elect to
terminate this Agreement, it shall have the right, irrespective of such default:
6
(a) to require each non-defaulting Underwriter to purchase and pay for
the respective [/1,2,4/number] or [/3/amount] of the Securities that it had
agreed to purchase hereunder as hereinabove provided and, in addition, all
or a part of the [/1,2,4/number] [/3/principal amount] of the Securities
that the defaulting Underwriter shall have so failed or refused to purchase
up to [/1,2,4/a number] or [/3/an amount] thereof equal to one-ninth (1/9)
of the [/1,2,4/number] or [/3/amount] of Securities that such
non-defaulting Underwriter has otherwise agreed to purchase hereunder,
and/or
(b) to procure one or more persons who are members of the NASD (or, if
not members of the NASD, who are not eligible for membership in the NASD
and who agree (i) to make no sales within the United States, its
territories or its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with the NASD's
Conduct Rules) and are reasonably acceptable to the Representative, to
purchase, upon the terms herein set forth, either all or a part of the
[/1,2,4/number] [/3/amount] of the Securities that such defaulting
Underwriters had agreed but failed or refused to purchase or that portion
thereof, if any, 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 with the Underwriters
that:
(a) It will promptly deliver to the Underwriters a signed copy of the
Registration Statement as originally filed or, to the extent a signed copy
is not available, a conformed copy, certified by an officer of the Company
to be in the form as originally filed, including all Incorporated Documents
and exhibits and of all amendments thereto.
(b) It will deliver to the Underwriters, as soon as practicable after
the date hereof, as many copies of the Prospectus as of such date as the
Underwriters may reasonably request.
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(c) It will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 as soon as practicable and advise the Underwriters 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 a dealer, any event relating to or affecting the Company
or of which the Company shall be advised in writing by the Underwriters
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, it will, at its expense, amend or supplement the Prospectus by
either (i) preparing and furnishing to the Underwriters 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 such 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 the Underwriter's request, will furnish to the
Underwriter, at the expense of the Underwriters, 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 earning 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 the Underwriters 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.
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(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 reasonable disbursements of counsel), 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 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 the Underwriters 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.
(h) During the period [describe period], the Company 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 [security of type being
offered] or any security convertible into or exchangeable or exercisable
for [security of type being offered] other than ____________________.
7. Conditions of Underwriters' Obligations. The 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 the Underwriters.
(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
the Underwriters 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) [/4/ (i)] On the Closing Date, the Underwriters 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 Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV, V and VI hereto (A) with such
changes therein as may be agreed upon by the Company and the Representative
9
on behalf of the Underwriters, with the approval of Counsel for the
Underwriters and (B) 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[/4/ (ii) on the Closing Date, the
Underwriters shall have received from Xxxxxx Xxxx & Priest LLP, counsel for
the Company, a reasoned opinion, in form and substance reasonably
satisfactory to Counsel for the Underwriters, with respect to the
enforceability of the termination provisions of the Purchase Contracts and
the release of pledged Senior Notes in the event of the bankruptcy of the
Company; and (iii) on the Closing Date, the Underwriters shall have
received from Xxxxx Xxxx LLP, counsel for The Bank of New York, as Purchase
Contract Agent, an opinion, dated the Closing Date, in form and substance
satisfactory to Counsel for the Underwriters, to the effect that:
(A) The Bank of New York is duly incorporated and is validly
existing as a banking corporation with trust powers under the laws of
the State of New York with all necessary corporate power and authority
to execute, deliver and perform its obligations as Purchase Contract
Agent under the Purchase Contract Agreement and the Pledge Agreement.
(B) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the Securities have
been duly authorized by all necessary corporate action on the part of
The Bank of New York. The Purchase Contract Agreement and the Pledge
Agreement have been duly executed and delivered by the Purchase
Contract Agent, and constitute the legal, valid and binding
obligations of the Purchase Contract Agent, enforceable against the
Purchase Contract Agent in accordance with their respective terms,
subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance, and other laws
relating to or affecting the rights and remedies of creditors
generally and of general principles of equity (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(C) The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent does not conflict with or constitute a breach of the charter or
by laws of The Bank of New York.
(D) No consent, approval or authorization of, or registration
with or notice to, any New York or federal governmental authority or
agency is required for the execution or delivery or as a condition
precedent to the performance by the Purchase Contract Agent of its
obligations under the Purchase Contract Agreement and the Pledge
Agreement except those that have been obtained, made or given and are
in full force and effect.]
(d) On and as of the Closing Date, the Underwriters 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
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and regulations thereunder, (ii) in their opinion, the consolidated
financial statements audited by them and included or incorporated by
reference in the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the related
rules and regulations by the Commission thereunder, (iii) on the basis of a
reading of the unaudited amounts of operating revenues and net income
included or incorporated by reference in the Prospectus and the related
consolidated financial statements from which these amounts were derived,
the latest available unaudited consolidated financial statements of the
Company and the minute books of the Company and inquiries of officers of
the Company and of certain direct and indirect subsidiaries of the Company
who have responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an audit made in
accordance with 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) any material modifications should be made to the
unaudited condensed consolidated financial statements of the Company
included in any quarterly reports incorporated by reference in the
Prospectus, for them to be in conformity with generally accepted accounting
principles, (B) the unaudited condensed consolidated financial statements
included in any such quarterly reports 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 Commission and (C) at
a specified date not more than five days prior to the date of such letter,
there was any change in the capital stock (which includes common stock and
preference stock) of the Company, preferred securities of subsidiaries of
the Company, short-term bank loans, commercial paper, or long-term debt or
long-term debt due currently (including long-term debt held by subsidiary
trusts) of the Company; or decrease in the Company's 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 Prospectus, except in all instances for
changes or decreases that the Prospectus 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 Registration Statement and the Prospectus
as reasonably requested by the Underwriters (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
11
the Company and its subsidiaries, considered as a whole, whether or not in
the ordinary course of business, and, since such dates, there shall not
have been any material transaction entered into by any of the Company and
the Material Subsidiaries, in each case other than transactions in the
ordinary course of business and transactions contemplated by the
Registration Statement or Prospectus, and at the Closing Date the
Underwriters 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.
[/3,4/ (g) At the Closing Date,(i) the [Securities] [Senior Notes that
are a component of the Initial Securities] shall be rated at least ________
by Xxxxx'x Investor Service, Inc. ("Moody's"), and _________ by Standard &
Poor's, a division of XxXxxx-Xxxx Companies, Inc. ("S&P"), and the Company
shall have delivered to the Representative a letter from each such rating
agency, or other evidence satisfactory to the Representative on behalf of
the Underwriters, confirming that the [Securities] [Senior Notes that are a
component of the Initial Securities] 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 [Securities] [Senior Notes that
are a component of the Initial Securities] or any securities of the Company
that are of the same class as the [Securities] [Senior Notes that are a
component of the Initial Securities], or of the financial condition of the
Company]
[/1,2/ (g) At the Closing Date, the Securities shall have been
approved for listing on the New York, Chicago and Pacific stock exchanges
upon notice of issuance.]
[/4/ (h) At the Closing Date, the Corporate Units shall have been
approved for listing on the New York Stock Exchange upon notice of issuance
and the Shares issuable under the Purchase Contracts shall have been
approved for listing on the New York, Chicago and Pacific stock exchanges
upon notice of issuance.]
The failure of one or more conditions specified in this Section 7
shall permit the termination of this Agreement by the Representative on behalf
of the Underwriters upon notice thereof to the Company. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 6(g) and 9 hereof.
8. Conditions of Company's Obligations. The obligation 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 the Underwriters. Any such termination shall be without
12
liability of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
13
9. Indemnification.
(a) The Company shall indemnify, defend and hold harmless each
Underwriter, each Underwriter's officers and directors 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) as
and when incurred by them in connection with investigating any such losses,
claims, damages or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact 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 and in conformity with information
furnished in writing to the Company by any Underwriter, through the
Representative, expressly for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement to
either thereof, or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement that shall
constitute the Statements of Eligibility 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 officer or director of such 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 the Underwriters, the Underwriters' officers or directors or any such
controlling person, and shall survive the delivery of the Securities.
(b) Each Underwriter 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
14
of the Securities Act, from and against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law and
shall reimburse each of them for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) as and when
incurred by them in connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, if
such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such Underwriter,
through the Representative, 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 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 Underwriter, or any such controlling person, and shall
survive the delivery of the Securities.
(c) The Company and the relevant 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 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 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
15
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 Underwriters 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 Underwriters on the other hand from the offering of the Securities
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 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 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 Underwriters shall not 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 that the Underwriters have 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
16
pursuant to this Section 9 are several and not joint and shall be in the
same proportion as such Underwriter's obligation to underwrite Securities
is to the total amount of Securities set forth in Schedule II hereto.
10. Termination. This Agreement may be terminated, at any time prior
to the Closing Date, by the Representative by written notice to the Company if
after the date hereof and at or prior to the Closing Date, (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, 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 a material disruption in commercial banking or
securities settlement or clearance services in the United States, or (b) there
shall have occurred any (i) material outbreak of hostilities (including, without
limitation, an act of terrorism) or (ii) 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 public offering or the delivery of the Securities on the
terms and in the manner contemplated by the Prospectus. This Agreement may also
be terminated with respect to the Securities at any time prior to the Closing
Date by the Representative if, in its 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.
17
12. Notices. All communications hereunder shall be in writing, and,
if to the Underwriters, shall be mailed or delivered to the Representative at
the address[es] 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.
[Signature page follows.]
18
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,
TXU CORP.
By ____________________________
Accepted and delivered as of
the date first above written
[Representative of Underwriters]
By:
By:___________________________________
as Representative of the several Underwriters
19
SCHEDULE I
----------
Underwriting Agreement dated:
Representative:
Designation:
[/1,2/Number of shares]
[/4/Number of Units]
[/2/Liquidation Preference Amount per share:]
[/3/Principal Amount:]
[/4/Aggregate Stated Amount:]
[/3/Date of Maturity:]
[/2/Dividend Rate:]
[/3/Interest Rate:]
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
----------
1 For use in connection with Common Stock.
2 For use in connection with Preference Stock.
3 For use in connection with Debt Securities.
4 For use in connection with Stock Purchase Units.
I-1
SCHEDULE II
-----------
TXU CORP.
[name of Security]
[/1,2,4/Number] [/3/Principal Amount] of
Name Securities
---- ----------
[names of Underwriters]
Total
----- =======================================
----------
1 For use in connection with Common Stock.
2 For use in connection with Preference Stock.
3 For use in connection with Debt Securities.
4 For use in connection with Stock Purchase Units.
II-1
SCHEDULE III
------------
[LETTERHEAD OF TXU CORP.]
[Date]
as representative[s] ([collectively, ]the "Representative")
of the underwriters (the "Underwriters") named in Schedule II
to the Underwriting Agreement, as herein defined
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of TXU Corp. ("Company").
I have reviewed the Underwriting Agreement dated ______, __ 200_, between
the Company and the Representative ("Underwriting Agreement") and the Prospectus
(as such term is defined in the Underwriting 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, referred to or incorporated by reference into the
Prospectus, there are no material pending legal proceedings to which the Company
or any of its subsidiaries is a party or of which property of the Company or of
any of its subsidiaries is the subject that are required to be disclosed in the
Prospectus pursuant to Item 103 of the Regulation S-K promulgated by the
Securities and Exchange Commission, and, to my knowledge, no such proceedings
are contemplated.
Very truly yours,
III-1
SCHEDULE IV
-----------
[LETTERHEAD OF HUNTON & XXXXXXXX LLP]
[Date]
as representative[s] ([collectively, ]the "Representative")
of the underwriters (the "Underwriters") named in Schedule II
to the Underwriting Agreement, as herein defined
Ladies and Gentlemen:
We have acted as counsel to TXU Corp., a Texas corporation (the
"Company"), in connection with the issuance and sale by the Company of ____ of
its _____________ ("Securities") pursuant to the Underwriting Agreement dated
______________ between the Company and the Representative of the several
Underwriters named therein (the "Underwriting Agreement"). This opinion is being
delivered pursuant to Section ___ of 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, [/3/ the Indenture] [/4/ the Remarketing Agreement, the
Pledge Agreement, the Purchase Contract Agreement, the Indenture, the Debt
Securities], 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
have deemed appropriate, on certificates of public officials. [/3/ We have
relied upon a certificate of the trustee under the Indenture as to the due
authentication and delivery of the Securities and as to the due authentication,
execution and delivery of the Indenture by the Trustee.] [/1,2/We have relied
upon a certificate of the transfer agent and registrar as to the execution of
----------
1 For use in connection with Common Stock.
2 For use in connection with Preference Stock.
3 For use in connection with Debt Securities.
4 For use in connection with Stock Purchase Units.
IV-1
the Securities.] [/4/ We have relied upon (i) a certificate of the Trustee as to
the due authentication and delivery of the Senior Notes and as to the due
authentication, execution and delivery of the Indenture by the Trustee and (ii)
a certificate of the Purchase Contract Agent under the Purchase Contract
Agreement as to the due authentication and delivery of the Corporate Units.]
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 Underwriting 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 attorneys of this
firm involved in the representation of the Company in this transaction without
independent investigation.
Upon the basis of the foregoing and subject to the qualifications and
limitations set forth herein, we are of the opinion that:
Based on the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that:
o 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 Underwriting Agreement [/3/ and the Indenture] [/4/, Purchase
Contract Agreement, Pledge Agreement, Purchase Contracts, Indenture and
Remarketing Agreement], (b) to issue the [/3/ Securities and to incur the
indebtedness to be evidenced thereby] [/4/ Corporate Units and the Shares
issuable pursuant to the Purchase Contracts and to incur the indebtedness
evidenced by the Senior Notes, (c) to make the Contract Adjustment Payments
and (d)] [/1,2,3/ and (c)] to own its property and assets and to conduct
the business which it is now conducting.
o [/1,2,3/ The Underwriting Agreement] [/4/ Each of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement, the
Purchase Contracts, the Indenture and the Remarketing Agreement] has been
duly authorized, executed and delivered by the Company. The execution and
delivery by the Company of the Underwriting Agreement and the fulfillment
by the Company of the terms of the Underwriting Agreement will not violate
the articles of incorporation or bylaws of the Company, as restated and
amended, and will not result in a breach of any of the terms or provisions
of, or constitute a default under, any material indenture, mortgage, deed
of trust or other agreement, of which we are aware, to which the Company is
a party.
IV-2
o [/2/ 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 Restated Articles of
Incorporation, as amended, of the Company.]
o [/1/ The Common Stock has been duly authorized by the Company for issuance
and sale to the Underwriters pursuant to the Underwriting Agreement and,
when issued and delivered by the Company pursuant to the Underwriting
Agreement against payment of the consideration set forth therein, will be
validly issued, fully paid and non-assessable and will not be subject to
any preemptive or similar right; 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.]
o [/3/ The Indenture has been duly qualified under the Trust Indenture Act.]
[/4/ Each of the Indenture and the Purchase Contract Agreement has been
duly qualified under the Trust Indenture Act.]
o [/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).]
o [/3/ The Securities will, when issued and paid for as contemplated in the
Underwriting 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.]
o [/4/ The Corporate Units have been authorized, executed and delivered by
the Company; the Senior Notes and the Purchase Contracts, when issued
against payment for the Corporate Units as contemplated by the Underwriting
Agreement, will be entitled to the benefits of the Indenture and of the
Purchase Contract Agreement, respectively, and the Corporate Units (when so
issued), the Purchase Contract Agreement, the Pledge Agreement, the
Remarketing Agreement, the Purchase Contracts, the Senior Notes, the
Indenture and the Company's obligation to issue and deliver the Option
Securities under the Underwriting Agreement are legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, 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, with respect to the Pledge Agreement
and the Remarketing Agreement, subject to any principles of public policy
limiting the right to enforce the indemnification provisions contained
therein.]
IV-3
o [/4/ The Common Stock issuable pursuant to the Purchase Contracts has been
validly authorized and reserved for issuance and, when issued and delivered
by the Company in accordance with the provisions of the Purchase Contract
Agreement, the Purchase Contracts and the Pledge Agreement, will be fully
paid and non assessable and the Rights attached to such Common Stock, 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; and the issuance of
the Common Stock and the Corporate Units is not subject to preemptive or
other similar rights arising by law, or to the best of our knowledge,
otherwise.]
o 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.
o The Company is not an investment company within the meaning of the
Investment Company Act of 1940, as amended.
o Other than as stated, referred to or incorporated by reference in the
Registration Statement and the Prospectus, we are not aware of any 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 which if determined adversely would have a material effect
on the Company and its subsidiaries taken as a whole, and, to our
knowledge, no such proceedings are contemplated.
o The Registration Statement, as of the Effective Date, and the Prospectus at
the time it was filed with the Commission pursuant to Rule 424 (except for
the financial statements and schedules and other financial and statistical
data contained or incorporated by reference therein and except for that
part of the Registration Statement that constitutes the Statements of
Eligibility on Form T-1, as to which we do not express any opinion)
complied as to form in all material respects with the Securities Act and
the applicable instructions, rules and regulations of the Commission
thereunder; 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
knowledge, no proceedings for a stop order with respect thereto are pending
or threatened under Section 8 of the Securities Act.
o No other approval, authorization, consent or order of any public board or
body of the United States of America or the States of New York or Texas
(other than in connection or in compliance with the provisions of
applicable blue-sky laws or securities laws of any jurisdiction (other than
the federal 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 [/1,2,3/ Securities] [/4/
Corporate Units or the Shares issuable pursuant to the Purchase Contracts],
as contemplated in the Underwriting Agreement.
IV-4
o 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
Prospectus, 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 Registration
Statement and the Prospectus, 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 various indentures, mortgages, deeds
of trust or other agreements to which the Company is party.
In the course of the preparation of the information relating to the
Company contained in the Prospectus (including the Incorporated Documents), 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 auditors
who audited certain of the financial statements contained in the Incorporated
Documents, 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 (including the Incorporated Documents)
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 for
that part of the Registration Statement that constitutes the Statements of
Eligibility on Form T-1, as to which we do not express any opinion or belief)
(i) the Registration Statement, as of the Effective Date, included an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) the Prospectus at the time it was filed with the Commission pursuant to
Rule 424, 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.
[/1,4/ The opinion set forth in paragraph [insert number of paragraph
referring to the Rights Agreement] 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
IV-5
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 States of Texas and New
York and the federal laws of the United States of America. We believe that you
and we are justified in relying on such opinion.
Very truly yours,
IV-6
SCHEDULE V
----------
[LETTERHEAD OF XXXXXX XXXX & PRIEST LLP]
[Date]
as representative[s] ([collectively, ]the "Representative")
of the underwriters (the "Underwriters") named in Schedule II
to the Underwriting Agreement, as herein defined
Ladies and Gentlemen:
We have acted as counsel to TXU Corp., a Texas corporation (the
"Company"), in connection with the issuance and sale by the Company of ____ of
its _____________ ("Securities") pursuant to the Underwriting Agreement dated
______________ between the Company and the Representative of the several
Underwriters named therein (the "Underwriting Agreement"). This opinion is being
delivered pursuant to Section ___ of 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, [/3/ the Indenture] [/4/ the Remarketing Agreement, the
Pledge Agreement, the Purchase Contract Agreement, the Indenture, the Debt
Securities], 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 representations and warranties
of the Company contained in the Underwriting Agreement or in certificates of
officers of the Company and, where we deemed appropriate, on certificates of
public officials. [/3/ We have relied upon a certificate of the trustee under
the Indenture as to the due authentication and delivery of the Securities and as
to the due authentication, execution and delivery of the Indenture by the
Trustee.] [/1,2/We have relied upon a certificate of the transfer agent and
registrar as to the execution of the Securities.] [/4/ We have relied upon (i) a
----------
1 For use in connection with Common Stock.
2 For use in connection with Preference Stock.
3 For use in connection with Debt Securities.
4 For use in connection with Stock Purchase Units.
V-1
certificate of the Trustee as to the due authentication and delivery of the
Senior Notes and as to the due authentication, execution and delivery of the
Indenture by the Trustee and (ii) a certificate of the Purchase Contract Agent
under the Purchase Contract Agreement as to the due authentication and delivery
of the Corporate Units.] 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:
o [/1,2,3/ The Underwriting Agreement] [/4/ Each of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement, the
Purchase Contracts, the Indenture and the Remarketing Agreement] has been
duly authorized, executed and delivered by the Company.
o [/2/ 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 Restated Articles of
Incorporation, as amended, of the Company.]
o [/1/ The Common Stock has been duly authorized by the Company for issuance
and sale to the Underwriters pursuant to the Underwriting Agreement and,
when issued and delivered by the Company pursuant to the Underwriting
Agreement against payment of the consideration set forth therein, will be
validly issued, fully paid and non-assessable and will not be subject to
any preemptive or similar right; 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.]
o [/3/ The Indenture has been duly qualified under the Trust Indenture Act.]
[/4/ Each of the Indenture and the Purchase Contract Agreement has been
duly qualified under the Trust Indenture Act.]
o [/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).]
o [/3/ The Securities will, when issued and paid for as contemplated in the
Underwriting 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.]
V-2
o [/4/ The Corporate Units have been authorized, executed and delivered by
the Company; the Senior Notes and the Purchase Contracts, when issued
against payment for the Corporate Units as contemplated by the Underwriting
Agreement, will be entitled to the benefits of the Indenture and of the
Purchase Contract Agreement, respectively, and the Corporate Units (when so
issued), the Purchase Contract Agreement, the Pledge Agreement, the
Remarketing Agreement, the Purchase Contracts, the Senior Notes, the
Indenture and the Company's obligation to issue and deliver the Option
Securities under the Underwriting Agreement are legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, 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, with respect to the Pledge Agreement
and the Remarketing Agreement, subject to any principles of public policy
limiting the right to enforce the indemnification provisions contained
therein.]
o [/4/ The Common Stock issuable pursuant to the Purchase Contracts has been
validly authorized and reserved for issuance and, when issued and delivered
by the Company in accordance with the provisions of the Purchase Contract
Agreement, the Purchase Contracts and the Pledge Agreement, will be fully
paid and non assessable and the Rights attached to such Common Stock, 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; and the issuance of
the Common Stock and the Corporate Units is not subject to preemptive or
other similar rights arising by law, or to the best of our knowledge,
otherwise.]
o 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.
o The Company is not an investment company within the meaning of the
Investment Company Act of 1940, as amended.
o The Registration Statement, as of the Effective Date, and the Prospectus at
the time it was filed with the Commission pursuant to Rule 424 (except for
the financial statements and schedules and other financial and statistical
data contained or incorporated by reference therein and except for that
part of the Registration Statement that constitutes the Statements of
Eligibility on Form T-1, as to which we do not express any opinion)
complied as to form in all material respects with the Securities Act and
the applicable instructions, rules and regulations of the Commission
thereunder; 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
knowledge, no proceedings for a stop order with respect thereto are pending
or threatened under Section 8 of the Securities Act.
V-3
o No other approval, authorization, consent or order of any public board or
body of the United States of America or the States of New York or Texas
(other than in connection or in compliance with the provisions of
applicable blue-sky laws or securities laws of any jurisdiction (other than
the federal 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 [/1,2,3/ Securities] [/4/
Corporate Units or the Shares issuable pursuant to the Purchase Contracts],
as contemplated in the Underwriting Agreement.
o [/1/ The Securities have been listed, on official notice of issuance, on
the New York, Chicago and Pacific stock exchanges.]
[If a tax opinion is given: We hereby confirm as our opinion the
statements under the caption "[insert caption of tax considerations section]" in
the Prospectus.]
In the course of the preparation of the information relating to the
Company contained in the Prospectus (including the Incorporated Documents), 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 auditors
who audited certain of the financial statements contained in the Incorporated
Documents, 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 (including the Incorporated Documents)
and take no responsibility therefor except as set forth [if a tax opinion is
given: in the immediately preceding paragraph and] 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 for
that part of the Registration Statement that constitutes the Statements of
Eligibility on Form T-1, as to which we do not express any opinion or belief)
(i) the Registration Statement, as of the Effective Date, included an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) the Prospectus at the time it was filed with the Commission pursuant to
Rule 424, 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.
[/1,4/ The opinion set forth in paragraph [insert number of paragraph
referring to the Rights Agreement] 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.]
V-4
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, 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
V-5
SCHEDULE VI
-----------
[LETTERHEAD OF PILLSBURY WINTHROP LLP]
[Date]
as representative[s] ([collectively, ]the "Representative")
of the underwriters (the "Underwriters") named in Schedule II
to the Underwriting Agreement, as herein defined
Ladies and Gentlemen:
We have acted as counsel to you and the several Underwriters in
connection with the issuance and sale by TXU Corp., a Texas corporation (the
"Company"), of ____ of its _____________ ("Securities") pursuant to the
Underwriting Agreement dated ______________ between the Company and you (the
"Underwriting Agreement").
Terms not otherwise defined herein are used with the meanings ascribed
to them in the Underwriting 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, required by Section __ of the Underwriting
Agreement, 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, New York, New York, counsel for the Company, required by
Section __ of the Underwriting Agreement, and we believe such opinion to be
satisfactory.
For purposes of this opinion, we have reviewed the Registration
Statement, the Prospectus, [insert other applicable documents]. We have, in
addition, reviewed, and relied as to matters of fact upon, the documents
described in the list of closing papers as having been delivered to the
Underwriters at the closing of the transactions contemplated under the
Underwriting Agreement and such other documents and satisfied ourselves as to
such other matters as we have deemed relevant and necessary as a basis for this
opinion. [/1,2,3/ We have relied upon a certificate of the [/3/ Trustee under
the Indenture as to the due authentication and delivery of the Securities and as
to the authorization, execution and delivery by the Trustee of the Indenture]
VI-1
[/1,2/transfer agent and registrar for the Securities as to the issuance,
registration and countersignature thereof].] [/4/ We have relied upon a
certificate of the Purchase Contract Agent under the Purchase Contract Agreement
as to the authentication of the Corporate Units and a certificate of the Trustee
under the Indenture as to the authentication of the Senior Notes.] As to various
questions of fact material to this opinion, we have relied upon representations
of the Company and statements in the Prospectus hereinafter mentioned. 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.
Based upon the foregoing, we are of the opinion that:
o [/1,2,3/ The Underwriting Agreement] [/4/ Each of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement, the
Purchase Contracts, the Indenture and the Remarketing Agreement] has been
duly authorized, executed and delivered by the Company.
o [/1,2/ The Securities [/2/ 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 non-assessable, and are entitled to the
rights, privileges and preferences set forth in the Restated Articles of
Incorporation, as amended, of the Company.]
o [/1/ The Common Stock has been duly authorized by the Company for issuance
and sale to the Underwriters pursuant to the Underwriting Agreement and,
when issued and delivered by the Company pursuant to the Underwriting
Agreement against payment of the consideration set forth therein, will be
validly issued, fully paid and non-assessable and will not be subject to
any preemptive or similar right.]
o [/3/ The Indenture has been duly qualified under the Trust Indenture Act.]
[/4/ Each of the Indenture and the Purchase Contract Agreement has been
duly qualified under the Trust Indenture Act.]
o [/3/ The Indenture 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).]
----------
1 For use in connection with Common Stock.
2 For use in connection with Preference Stock.
3 For use in connection with Debt Securities.
4 For use in connection with Stock Purchase Units.
VI-2
o [/3/ The Securities will, when issued and paid for as contemplated in the
Underwriting 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.]
o [/4/ The Corporate Units have been authorized, executed and delivered by
the Company; the Senior Notes and the Purchase Contracts, when issued
against payment for the Corporate Units as contemplated by the Underwriting
Agreement, will be entitled to the benefits of the Indenture and of the
Purchase Contract Agreement, respectively, and the Corporate Units (when so
issued), the Purchase Contract Agreement, the Pledge Agreement, the
Remarketing Agreement, the Purchase Contracts, the Senior Notes, the
Indenture and the Company's obligation to issue and deliver the Option
Securities under the Underwriting Agreement are legal, valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, 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, with respect to the Pledge Agreement
and the Remarketing Agreement, subject to any principles of public policy
limiting the right to enforce the indemnification provisions contained
therein.]
o [/4/ The Common Stock issuable pursuant to the Purchase Contracts has been
validly authorized and reserved for issuance and, when issued and delivered
by the Company in accordance with the provisions of the Purchase Contract
Agreement, the Purchase Contracts and the Pledge Agreement, will be fully
paid and non assessable; and the issuance of the Common Stock and the
Corporate Units is not subject to preemptive or other similar rights
arising by law.]
o 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 or transactions referred to therein, constitute accurate
summaries of the terms of such documents or transactions in all material
respects.
o No other approval, authorization, consent or order of any public board or
body of the United States of America or the States of New York or Texas
(except those which have been 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 we express no opinion) is legally
required for the authorization of the issue and sale by the Company of the
[/1,2,3/ Securities] [/4/ Corporate Units or the Shares issuable pursuant
to the Purchase Contracts], as contemplated in the Underwriting Agreement.
o The Registration Statement, at the Effective Date, and the Prospectus at
the time it was filed with the Commission pursuant to Rule 424 (except in
each case as to the financial statements and schedules and other financial
VI-3
and statistical data contained or incorporated by reference therein and
except for that part of the Registration Statement that constitutes the
Statements of Eligibility on Form T-1, as to which we do not express any
opinion or belief) complied as to form in all material respects with the
Securities Act and the applicable instructions, rules and regulations of
the Commission thereunder.[/1/ The Securities have been listed, on official
notice of issuance, on the New York, Chicago and Pacific stock exchanges.]
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. We have not
independently verified the accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration Statement or the
Prospectus and take no responsibility therefor, except insofar as such
statements relate to us and as set forth in paragraph __ above. In connection
with 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
auditors who audited certain of the financial statements contained in the
Incorporated Documents, and with certain of your representatives. Our review 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
Statements of Eligibility on Form T-1.
This opinion is given to you solely for your use in connection with
the Underwriting Agreement and the transactions contemplated thereunder and may
not be relied upon for any other purpose, or furnished or quoted to, or relied
upon by, any other person or entity for any purpose, without our prior written
consent.
Very truly yours,
VI-4
