EXHIBIT 1(b)
[Name of Trust]
Preferred Trust Securities
UNDERWRITING AGREEMENT
[Date]
as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
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corporation doing business as TXU Corp (the "Company") and its
financing subsidiary, [Name of Trust], a Delaware business trust
(the "Trust," and hereinafter, together with the Company, the
"Offerors"), propose for the Trust to issue and sell severally to
the underwriters named in Schedule II hereto (the "Underwriters")
the Trust's Preferred Trust Securities of the series designation,
with the terms and in the liquidation preference amount specified
in Schedule I hereto (the "Preferred Trust Securities").
2. Description of Preferred Trust Securities. The
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Offerors propose for the Trust to issue the Preferred Trust
Securities pursuant to an Amended and Restated Trust Agreement,
to be dated as of , among The Bank of New York,
as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, certain employees of the Company, as Administrative
Trustees, and the several Holders as defined therein in
substantially the form heretofore delivered to you as the
Representatives, said Agreement being hereinafter referred to as
the "Trust Agreement". In connection with the issuance of the
Preferred Trust Securities, the Company proposes (i) to issue its
Junior Subordinated Debentures, Series (the "Debentures")
pursuant to an Indenture, dated as of December 1, 1998, between
the Company and The Bank of New York, as trustee (the
"Indenture") and (ii) to issue a guarantee of the Preferred Trust
Securities to the extent described in the Prospectus (as defined
below) (the "Guarantee").
3. Representations and Warranties of the Offerors.
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The Offerors represent and warrant to the several Underwriters
that:
(a) The Offerors and [name additional registrants]
have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 on
, 1999 (Registration Nos. 333 , 333 -01, 333 -
02 and 333 -03) for the registration under the Securities
Act of 1933, as amended (the "Securities Act"), of
$510,000,000 aggregate amount of (i) the Company's
Preference Stock, $25 par value, (ii) the Company's
unsecured debt securities ("Debt Securities") and (iii) the
preferred trust securities of the Trust and [name additional
registrants], an equal principal amount of the Company's
junior subordinated debentures and guarantees and other
obligations of the Company in respect of such preferred
trust securities. Such registration statement
("Registration Statement No. 333 ") included a combined
prospectus relating to such securities, to $170,000,000
aggregate amount of Stock Purchase Contracts, Common Stock
to be issued in settlement thereof, Stock Purchase Units and
Debt Securities registered under a prior registration
statement, and to $170,000,000 of Debt Securities registered
under another prior registration statement. Registration
Statement No. 333 was declared effective by the
Commission on . 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
respect to securities registered under Registration
Statement No. 333 with the Commission pursuant to
Section 462(b) of the Securities Act (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 combined prospectus, including any
preliminary prospectus, forming a part of Registration
Statement No. 333 , as amended or supplemented as of such
date (other than by amendments or supplements relating to
securities other than the Preferred Trust Securities),
including all Incorporated Documents as of such date and
including any prospectus supplement relating to the
Preferred Trust 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 Nos. 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 and prior to the Closing
Date, as hereinafter defined, without prior notice to the
Underwriters, or to which Counsel for the Underwriters shall
reasonably object in writing. For the purposes of this
Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior
to the Closing Date, as hereinafter defined, shall be deemed
an amendment or supplement to the Registration Statement and
the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus, the Trust Agreement, the Indenture and the
Guarantee will fully comply in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act"),
and the applicable rules and regulations of the Commission
thereunder; on the Effective Date the Registration Statement
did not, and at the Closing Date, as hereinafter defined,
the Registration Statement will not, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; on the Effective Date the
Prospectus did not, and at the Closing Date, as hereinafter
defined, and on the date it is filed with the Commission
pursuant to Rule 424 of the General Rules and Regulations of
the Securities Act ("Rule 424"), the Prospectus will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and on said dates the
Incorporated Documents, taken together as a whole, fully
complied or will fully comply in all material respects with
the applicable provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the applicable
rules and regulations of the Commission thereunder, and,
when read together with the Prospectus on said dates did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information
furnished in writing to the Company by, or on behalf of, any
Underwriter for use in connection with the preparation of
the Registration Statement or the Prospectus or to any
statements in or omissions from the Statements of
Eligibility and Qualification under the Trust Indenture Act,
or amendments thereto, filed as exhibits to the Registration
Statement.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company or the Trust is now a party.
(d) Each direct and indirect material subsidiary of
the Company has been incorporated and is validly existing as
a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and
to conduct its business as currently conducted and as set
forth in or contemplated by the Prospectus, and is qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify or be in good standing would not have
a material adverse effect on the business, property or
financial condition of the Company and its subsidiaries,
considered as a whole. Except as otherwise set forth in or
contemplated by the Registration Statement and the
Prospectus, all of the issued and outstanding shares of
capital stock of direct and indirect material subsidiaries
of the Company have been authorized and validly issued, are
fully paid and non-assessable and (except for any directors'
qualifying shares) are owned by the Company, directly or
through its subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of
such material subsidiaries was issued in violation of
preemptive or other similar rights arising by operation of
law, under the charter or by-laws of any subsidiary or under
any agreement to which the Company or any subsidiary is a
party.
4. Purchase and Sale.
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(a) On the basis of the representations and warranties
herein contained, and subject to the terms and conditions
herein set forth, the Trust shall sell to each of the
Underwriters, and each Underwriter shall purchase from the
Trust, at the time and place herein specified, severally and
not jointly, the respective number of the Preferred Trust
Securities set forth opposite the name of such Underwriter
in Schedule II attached hereto, at the purchase price or
prices set forth in Schedule I hereto.
(b) The Company shall pay to the Underwriters a
commission equal to $ per Preferred Trust Security.
5. Time and Place of Closing. Delivery of the
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Preferred Trust Securities against payment of the aggregate
purchase price therefor by wire transfer in federal funds shall
be made at the offices of Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York Time, on
, or at such other place, time and date as shall be
agreed upon in writing by the Company and you or established in
accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Preferred Trust Securities shall be delivered to The
Depository Trust Company or to The Bank of New York, as custodian
for The Depository Trust Company, in fully registered global form
registered in the name of Cede & Co., for the respective accounts
specified by you not later than the close of business on the
business day preceding the Closing Date. The Trust agrees to
make the Preferred Trust Securities available to you for checking
purposes not later than 10:00 A.M., New York Time, on the last
business day preceding the Closing Date at the offices of Xxxxxx
Xxxx & Priest, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or
at such other place as the Trust 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 liquidation preference
amount of the Preferred Trust Securities that such Underwriter
has agreed to purchase and pay for hereunder, the Company shall
immediately give notice to the other Underwriters of the default
of such Underwriter, and the other Underwriters shall have the
right within 24 hours after the receipt of such notice to
determine to purchase, or to procure one or more others, who are
members of the National Association of Securities Dealers, Inc.
("NASD") (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no sales
within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with the NASD's Conduct Rules) and
satisfactory to the Company, to purchase, upon the terms herein
set forth, the liquidation preference amount of the Preferred
Trust Securities that the defaulting Underwriter had agreed to
purchase. If any non-defaulting Underwriter or Underwriters
shall determine to exercise such right, such Underwriter or
Underwriters shall give written notice to the Company of the
determination in that regard within 24 hours after receipt of
notice of any such default, and thereupon the Closing Date shall
be postponed for such period, not exceeding three business days,
as the Company shall determine. If in the event of such a
default no non-defaulting Underwriter shall give such notice,
then this Agreement may be terminated by the Company, upon like
notice given to the non-defaulting Underwriters, within a further
period of 24 hours. If in such case the Company shall not elect
to terminate this Agreement it shall have the right, irrespective
of such default:
(a) to require each non-defaulting Underwriter to
purchase and pay for the respective liquidation preference
amount of the Preferred Trust Securities that it had agreed
to purchase hereunder as hereinabove provided and, in
addition, the liquidation preference amount of the Preferred
Trust Securities that the defaulting Underwriter shall have
so failed to purchase up to a liquidation preference amount
thereof equal to one-ninth (1/9) of the liquidation
preference amount of Preferred Trust Securities that such
non-defaulting Underwriter has otherwise agreed to purchase
hereunder, and/or
(b) to procure one or more persons, reasonably
acceptable to the Representatives, who are members of the
NASD (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no
sales within the United States, its territories or its
possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Conduct Rules), to purchase, upon the terms
herein set forth, either all or a part of the liquidation
preference amount of the Preferred Trust Securities that
such defaulting Underwriter had agreed to purchase or that
portion thereof that the remaining Underwriters shall not be
obligated to purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday that
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees
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that:
(a) It will promptly deliver to each of you a signed
copy of the Registration Statement as originally filed or,
to the extent a signed copy is not available, a conformed
copy, certified by an officer of the Company to be in the
form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 as soon as practicable and
advise you of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Offerors 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 Preferred
Trust Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event
relating to or affecting the Company or the Trust or of
which the Company shall be advised in writing by you shall
occur that in the Company's reasonable opinion after
consultation with Counsel for the Underwriters should be set
forth in a supplement to, or an amendment of, the Prospectus
in order to make the Prospectus not misleading in the light
of the circumstances when it is delivered to a purchaser,
the Company will, at its expense, amend or supplement the
Prospectus by either (i) preparing and furnishing to you at
the Company's expense a reasonable number of copies of a
supplement or supplements or an amendment or amendments to
the Prospectus or (ii) making an appropriate filing pursuant
to Section 13 of the Exchange Act, which will supplement or
amend the Prospectus so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not
misleading; provided that should such event relate solely to
the activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and
furnishing any such amendment or supplement. In case any
Underwriter is required to deliver a prospectus after the
expiration of nine months from the date the Prospectus is
filed with the Commission pursuant to Rule 424, the Company,
upon such Underwriter's request, will furnish to such
Underwriter, at the expense of such Underwriter, a
reasonable quantity of a supplemental prospectus or
supplements to the Prospectus complying with Section 10(a)
of the Securities Act.
(e) It will make generally available to its security
holders and the security holders of the Trust, as soon as
practicable, an earnings statement (which need not be
audited) covering a period of at least twelve months
beginning not earlier than the first day of the month next
succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the
Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Preferred Trust Securities for offer and sale under the
blue-sky laws of such jurisdictions as you may designate,
provided that the neither of the Offerors shall be required
to qualify as a foreign corporation or dealer in securities,
to file any consents to service of process under the laws of
any jurisdiction, or to meet any other requirements deemed
by the Offerors to be unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Preferred Trust Securities as provided in Section 5
hereof, (iii) the qualification of the Preferred Trust
Securities under blue-sky laws (including counsel fees not
to exceed $7,500), and (iv) the printing and delivery to the
Underwriters of reasonable quantities of the Registration
Statement and, except as provided in Section 6(d) hereof, of
the Prospectus. The Company shall not, however, be required
to pay any amount for any expenses of yours or any of the
Underwriters, except that, if this Agreement shall be
terminated in accordance with the provisions of Section 7, 8
or 10 hereof, the Company will reimburse you for the fees
and disbursements of Counsel for the Underwriters, whose
fees and disbursements the Underwriters agree to pay in any
other event, and will reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount
not exceeding $5,000, incurred in contemplation of the
performance of this Agreement. The Company shall not in any
event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits.
(h) During the period from the date of this Agreement
to the Closing Date, neither the Company nor the Trust will,
without the prior written consent of the Representatives,
directly or indirectly, publicly issue, sell, offer or
contract to sell, in the market in which the Preferred Trust
Securities are being offered and sold, any securities of the
Company or any of its subsidiaries or of the Trust which are
of the same class as the Preferred Trust Securities.
7. Conditions of Underwriters' Obligations. The
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obligations of the Underwriters to purchase and pay for the
Preferred Trust Securities shall be subject to the accuracy of
the representations and warranties made herein on the part of
each of the Offerors, to the performance by each of the Offerors
of its obligations to be performed hereunder prior to the Closing
Date, and to the following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 5:30 P.M., New York
Time, on the second business day after the date of this
Agreement, or such other time and date as may be approved by
you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel for the
Company and the Trust, Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx,
L.L.P., General Counsel for the Company, Xxxxxx Xxxx &
Priest LLP, of counsel for the Company, and Winthrop,
Stimson, Xxxxxx & Xxxxxxx, Counsel for the Underwriters,
opinions in substantially the form and substance prescribed
in Schedules III, IV, V and VI hereto (i) with such changes
therein as may be agreed upon by the Company and you, with
the approval of Counsel for the Underwriters, and (ii) if
the Prospectus relating to the Preferred Trust Securities
shall be supplemented or amended after the Prospectus shall
have been filed with the Commission pursuant to Rule 424,
with any changes therein necessary to reflect such
supplementation or amendment.
(d) On and as of the Closing Date, you shall have
received from Deloitte & Touche LLP a letter to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder, (ii) in their opinion, the financial
statements audited by them and included or incorporated by
reference in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the applicable
published rules and regulations thereunder, (iii) on the
basis of a reading of the unaudited amounts of operating
revenues and net income included or incorporated by
reference in the Prospectus and the related financial
statements from which these amounts were derived, the latest
available unaudited financial statements of the Company and
the minute books of the Company and inquiries of officers of
the Company and of certain directand indirect subsidiaries
of the Company who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance
with generally accepted auditing standards and would not
necessarily reveal matters of significance with respect to
the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention which caused
them to believe that (A) the unaudited financial statements
of the Company incorporated by reference in the Prospectus
were not determined in accordance with generally accepted
accounting principles applied on a basis substantially
consistent with that of the corresponding amounts in the
latest available audited financial statements of the
Company, (B) the unaudited amounts of operating revenues and
net income of the Company included or incorporated by
reference in the Prospectus were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited statements of income of the Company,
incorporated by reference in the Prospectus, (C) for the
twelve months ended , if available, there
were any decreases in operating revenues or net income as
compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior
to the date of such letter, there was any change in the
capital stock of the Company, short-term bank loans,
commercial paper, or long-term debt of the Company or
decrease in its net assets, in each case as compared with
amounts shown in the most recent balance sheets of the
Company incorporated by reference in the Prospectus, except
in all instances for changes or decreases that the
Prospectus discloses have occurred or may occur or which are
occasioned by the declaration of a regular quarterly
dividend or the acquisition of long-term debt for sinking
fund purposes, or which are described in such letter, and
(iv) they have compared the dollar amounts (or percentages
or ratios derived from such dollar amounts) and other
financial information included or incorporated by reference
in the Registration Statement and the Prospectus as
reasonably requested by you (in each case to the extent that
such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company and its consolidated subsidiaries subject to
the internal controls of the accounting system of such
companies or are derived indirectly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter, and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
(e) Since the most recent dates as of which
information is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole,
and, since such dates, there shall not have been any material
transaction entered into by the Company and its subsidiaries,
in each case other than transactions in the ordinary course
of business and transactions contemplated by the Registration
Statement or Prospectus, and at the Closing Date you shall
have received a certificate to such effect dated the Closing
Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Preferred Trust
Securities, the Debentures, the Guarantee, and the common
trust securities to be issued by the Trust as described in
the Prospectus shall have been satisfactory in form and
substance to Counsel for the Underwriters.
(g) At the Closing Date, (i) the Preferred Trust
Securities shall be rated at least by Xxxxx'x
Investor Services ("Moody's"), and Standard & Poor's
Corporation ("S&P"), respectively, and the Company shall
have delivered to you a letter from each such rating agency,
or other evidence satisfactory to you, confirming that the
Preferred Trust Securities have such ratings, and (ii)
neither Moody's nor S&P shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of the Preferred Trust Securities,
any other securities of the Company or a special purpose
subsidiary of the Company which are of the same class as the
Preferred Trust Securities or the financial condition of the
Company.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated by the Representatives upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections
6(g) and 9 hereof.
8. Conditions of Offerors' Obligations. The
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obligation of the Offerors to deliver the Preferred Trust
Securities shall be subject to the conditions that the Prospectus
shall have been filed with the Commission pursuant to Rule 424
prior to 5:30 P.M., New York Time, on the second business day
after the date of this Agreement or such other time and date as
may be approved by the Company, and no stop order suspending the
effectiveness of the Registration Statement shall be in effect at
the Closing Date and no proceedings for that purpose shall be
pending before, or threatened by, the Commission at the Closing
Date. In case these conditions shall not have been fulfilled,
this Agreement may be terminated by the Company upon notice
thereof to you. Any such termination shall be without liability
of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
9. Indemnification.
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(a) The Offerors shall jointly and severally
indemnify, defend and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning
of Section 15 of the Securities Act from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each such Underwriter and controlling
person for any legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
provided, however, that the indemnity agreement contained in
this Section 9 shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon information
furnished in writing to the Offerors by or on behalf of any
Underwriter, for use in connection with the preparation of
the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, or arising out
of, or based upon, statements in or omissions from that part
of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust
Indenture Act of any Trustee with respect to any indenture
qualified pursuant to the Registration Statement; and
provided further, that the indemnity agreement contained in
this Section 9 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Preferred
Trust 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 Offerors
contained in this Section 9 and the representations and
warranties of the Offerors contained in Section 3 hereof
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of
the Preferred Trust Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, their officers and directors, and
each person who controls either of the Offerors within the
meaning of Section 15 of the Securities Act, from and
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or
common law and shall reimburse each of them for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the
Offerors by or on behalf of such Underwriter, through the
Representatives or Counsel for the Underwriters, for use in
connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Offerors in writing expressly for use in the Prospectus
[indicate topics addressed and location in the Prospectus].
The indemnity agreement of the respective Underwriters
contained in this Section 9 shall remain operative and in
full force and effect regardless of any termination of this
Agreement or of any investigation made by or on behalf of
either Offeror, its directors or its officers, any such
Underwriter, or any such controlling person, and shall
survive the delivery of the Preferred Trust Securities.
(c) The Company, the Trust and the several
Underwriters each shall, upon the receipt of notice of the
commencement of any action against it or any person
controlling it as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement
contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the omission so to
notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from
any liability which it or they may have to the indemnified
party otherwise than on account of such indemnity agreement.
In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at
its own expense in the defense, or, if it so elects, to
assume (in conjunction with any other indemnifying parties)
the defense of such action, in which event such defense
shall be conducted by counsel chosen by such indemnifying
party or parties and satisfactory to the indemnified party
or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but
if the indemnifying party shall elect not to assume the
defense of such action, such indemnifying party will
reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such
action include both the indemnified party and the
indemnifying party and counsel for the indemnifying party
shall have reasonably concluded that there may be a conflict
of interest involved in the representation by such counsel
of both the indemnifying party and the indemnified party,
the indemnified party or parties shall have the right to
select separate counsel, satisfactory to the indemnifying
party, to participate in the defense of such action on
behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
(d) If the indemnification provided for in
subparagraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect (i)
the relative fault of each indemnifying party on the one
hand and the indemnified party on the other in connection
with the statements or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Offerors on the one hand
and the Underwriters on the other hand from the offering of
the Preferred Trust Securities pursuant to this Agreement,
and (iii) any other relevant equitable considerations;
provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party not guilty of such
fraudulent misrepresentation. Relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party
or the indemnified party and each such party's relative
intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The
Offerors and each of the Underwriters agree that it would
not be just and equitable if contributions pursuant to this
subparagraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be
required to contribute in excess of the amount equal to the
excess of (i) the total price at which the Preferred Trust
Securities underwritten by it were offered to the public,
over (ii) the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged
omission. The obligations of each Underwriter to contribute
pursuant to this Section 9 are several and not joint and
shall be in proportion to the principal amount of Preferred
Trust Securities set forth opposite its name in Schedule II
hereto.
10. Termination. This Agreement may be terminated, at
-----------
any time prior to the Closing Date, by the Representatives if (a)
after the date hereof and at or prior to the Closing Date there
shall have occurred any suspension or material limitation of
trading of any of the Company's securities on the New York Stock
Exchange, Inc. ("NYSE") or any general suspension of trading in
securities on the NYSE, the American Stock Exchange, Inc.
("AMEX") or the NASDAQ Stock Market, Inc. ("NASDAQ") or there
shall have been established by the NYSE, AMEX or NASDAQ or by the
Commission or by any federal or state agency or by the decision
of any court, any general limitation on prices for such trading
or any general restrictions on the distribution of securities, or
a general banking moratorium declared by New York or federal
authorities, or (b) there shall have occurred any (i) new
material outbreak of hostilities or (ii) new material other
national or international calamity or crisis, including, but not
limited to, an escalation of hostilities that existed prior to
the date of this Agreement or (iii) material adverse change in
the financial markets in the United States, and the effect of any
such event specified in clause (a) or (b) above on the financial
markets of the United States shall be such as to make it
impracticable, in the reasonable judgment of the Representatives,
for the Underwriters to enforce contracts for the sale of the
Preferred Trust Securities. This Agreement may also be
terminated at any time prior to the Closing Date by the
Representatives if, in their reasonable judgment, the subject
matter of any amendment or supplement to the Registration
Statement or the Prospectus (other than an amendment or
supplement relating solely to the activity of any Underwriter or
Underwriters) prepared and issued by the Company after the
effectiveness of this Agreement shall have disclosed a material
adverse change in the business, property or financial condition
of the Company and its subsidiaries considered as a whole,
whether or not in the ordinary course of business, that has
materially impaired the marketability of the Preferred Trust
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 Preferred Trust
Securities from any of the several Underwriters.
12. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: Treasurer.
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
TEXAS UTILITIES COMPANY, doing
business as TXU CORP
By
-----------------------------
[NAME OF TRUST]
By
-----------------------------
(Authorized Representative)
Accepted and delivered as of
the date first above written
[REPRESENTATIVES OF UNDERWRITERS]
By:
By:
-----------------------------------
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives:
Designation:
Liquidation Preference Amount:
Date of Maturity:
Distribution Rate:
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
SCHEDULE II
-----------
[Name of Trust]
Preferred Trust Securities
Number of
Preferred Trust
Name Securities
---- ---------------
Total ==========
$
SCHEDULE III
------------
[LETTERHEAD OF XXXXXXXX, XXXXXX & FINGER, P.A.]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
Re: [Name of Trust]
---------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Texas
Utilities Company, a Texas corporation doing business as TXU Corp
(the "Company"), and [Name of Trust], a Delaware business trust
(the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
, 1999 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on , 1999;
(b) The Trust Agreement of the Trust, dated as of
, 1999, by and among the Company and the trustees of
the Trust named therein;
(c) The Prospectus, dated , 1999, and the
Prospectus Supplement, dated , (jointly, the
"Prospectus"), relating to the Preferred Trust Securities of the
Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Trust Security" and
collectively, the "Preferred Trust Securities");
(d) The Amended and Restated Trust Agreement of the
Trust, dated as of , (including Exhibits A, B and
D thereto) (the "Trust Agreement"), among the Company, the
trustees of the Trust named therein (the "Trustees") and the
holders, from time to time, of undivided beneficial interests in
the assets of the Trust;
(e) The Underwriting Agreement, dated ,
(the "Underwriting Agreement"), among the Company, the Trust and
the Underwriters named in Schedule II thereto; and
(f) A Certificate of Good Standing for the Trust,
dated , , obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above, which we believe are all the documents
necessary or appropriate for us to have considered for the
purposes of rendering the opinions stated herein. In particular,
we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to
in or incorporated by reference into the documents reviewed by
us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the
opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein, all
of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Trust Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Trust Agreement and the Certificate
are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due
creation, due formation or due organization, as the case may be,
and the valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction
governing its creation, formation or organization, (iii) the
legal capacity of natural persons who are parties to the
documents examined by us, (iv) except to the extent set forth in
paragraph 2 below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent provided in paragraph 4 below, that each
of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Trust Security is to
be issued by the Trust (the "Preferred Trust Security Holders")
of a Preferred Trust Securities Certificate for the Preferred
Trust Security and the payment for the Preferred Trust Security
acquired by it, in accordance with the Trust Agreement, and as
described in the Prospectus, (vii) that the Preferred Trust
Securities are issued and sold to the Preferred Trust Security
Holders in accordance with the Trust Agreement, and as described
in the Prospectus, (viii) the receipt by the Person (the "Common
Trust Security Holder") to whom a Common Trust Security of the
Trust representing common undivided beneficial interests in the
assets of the Trust (each, a "Common Trust Security" and
collectively, the "Common Trust Securities") (the Preferred Trust
Securities and the Common Trust Securities being hereinafter
collectively referred to as "Trust Securities") is to be issued
by the Trust of a Common Trust Securities Certificate for the
Common Trust Security and the payment for the Common Trust
Security acquired by it, in accordance with the Trust Agreement,
and as described in the Prospectus, (ix) that the Common Trust
Securities are issued and sold to the Common Trust Security
Holder in accordance with the Trust Agreement, and as described
in the Prospectus, (x) that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware trustee as
required by the Delaware Business Trust Act and filing documents
with the Secretary of State) or employees in the State of
Delaware, and (xi) that the Trust is treated as a grantor trust
for federal income tax purposes. We have not participated in the
preparation of the Prospectus and assume no responsibility for
its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of
the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the
Trust Agreement, the Trust has the trust power and authority to
(i) own property and conduct its business, all as described in
the Prospectus, (ii) execute and deliver, and perform its
obligations under, the Underwriting Agreement, and (iii) issue,
and perform its obligations under, the Trust Securities.
3. The Trust Agreement is a legal, valid and binding
agreement of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its
terms.
4. Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery of the Underwriting
Agreement by the Trust, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all
requisite trust action on the part of the Trust.
5. No authorization, approval, consent or order of
any Delaware court or Delaware governmental authority or Delaware
agency is required to be obtained by the Trust solely in
connection with the issuance and sale of the Preferred Trust
Securities.
6. The Preferred Trust Securities have been duly
authorized by the Trust Agreement and, when issued and sold in
accordance with the Trust Agreement, the Preferred Trust
Securities will be, subject to the qualifications set forth in
paragraph 7 below, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust.
7. The Preferred Trust Security Holders, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Trust Security Holders may be obligated, pursuant to
the Trust Agreement, to (i) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Trust Securities
Certificates and the issuance of replacement Preferred Trust
Securities Certificates, and (ii) provide security or indemnity
in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust
Agreement.
8. Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Preferred Trust Securities
is not subject to preemptive rights.
9. The issuance and sale by the Trust of the Trust
Securities, the execution, delivery and performance by the Trust
of the Underwriting Agreement, the consummation by the Trust of
the transactions contemplated thereby and the compliance by the
Trust with its obligations thereunder do not violate (i) any of
the provisions of the Certificate or the Trust Agreement, or (ii)
any applicable Delaware law or Delaware administrative
regulation.
10. The Preferred Trust Security Holders (other than
those Preferred Trust Security Holders who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result
of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
The opinion expressed in paragraph 3 above is subject,
as to enforcement, to the effect upon the Trust Agreement of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. We also consent to Winthrop, Stimson, Xxxxxx &
Xxxxxxx', Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.'s and Xxxxxx
Xxxx & Priest LLP's relying as to matters of Delaware law upon
this opinion in connection with opinions to be rendered by them
on the date hereof pursuant to the Underwriting Agreement.
Further, we consent to the reliance by The Bank of New York (in
its capacity as Debenture Trustee under the Subordinated
Indenture, as trustee under the Guarantee, and as Property
Trustee under the Trust Agreement) and The Bank of New York
(Delaware) (in its capacity as Delaware Trustee under the Trust
Agreement) as to matters of Delaware law upon this opinion in
connection with the matters set forth herein. Except as stated
above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for
any purpose.
Very truly yours,
Schedule IV
[LETTERHEAD OF XXXXXXX, XXXXXXXX & XXXXXXXXXX, L.L.P.]
[Date]
as Representatives of Underwriters named in Schedule II
to the Underwriting Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Company, doing business as TXU Corp (the "Company") in connection
with the transactions contemplated by the Underwriting Agreement
dated , 1999 among the Company, [Name of Trust] (the
"Trust") and you (the "Underwriting Agreement"), including, among
others, (i) the issuance by the Trust, a statutory business trust
organized under the Delaware Business Trust Act (the "Delaware
Act"), of Preferred Trust Securities (the "Preferred Trust
Securities") having an aggregate liquidation amount of $
,000,000, (ii) the issuance by the Company of $
principal amount of its Junior Subordinated Debentures, Series
(the "Debentures") and (iii) the guarantee by the Company of the
Preferred Trust Securities pursuant to a Guarantee Agreement,
dated the date hereof, between the Company and The Bank of New
York, as trustee (the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a corporation duly authorized,
validly existing and in good standing under the laws of the State
of Texas, and has the corporate power and authority: (a) to
execute, deliver and perform its obligations under the
Underwriting Agreement and the Indenture, (b) to issue the
Debentures and the Guarantee and to incur the indebtedness to be
evidenced thereby, and (c) to own its property and assets and to
conduct the business which it is now conducting.
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
3. The Indenture, the Trust Agreement and the
Guarantee have been duly qualified under the Trust Indenture Act.
4. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.
5. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of
equity.
6. The statements made in the Prospectus under the
captions "Description of TXU Capital's Preferred Trust Securities
and Common Trust Securities," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee",
"Certain Terms of the Preferred Trust Securities" and "Certain
Terms of the Junior Subordinated Debentures", 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;
7. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the Preferred Trust
Securities will be, directly or indirectly controlled by, or
acting on behalf of any person which is, an investment company
within the meaning of the Investment Company Act of 1940, as
amended.
8. The Trust is duly qualified to transact business
in the State of Texas as a foreign limited liability company.
Under Texas law, the liability, if any, of holders of Preferred
Trust Securities for the debts, liabilities and obligations of
the Trust for which they are not otherwise liable by statute or
agreement will be governed by the Delaware Act.
9. Other than as stated in the Registration Statement
and the Prospectus, there are no material pending legal
proceedings to which the Company is a party or of which property
of the Company is the subject which depart from the ordinary
routine litigation incident to the kind of business conducted by
the Company, and to our best knowledge no such proceedings are
contemplated;
10. The Registration Statement, as of the Effective
Date, and the Prospectus at the time it was filed with the
Commission pursuant to Rule 424 under the Securities Act (except
for financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein
and except for that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any
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 best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act.
11. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
12. Each Principal Subsidiary (as defined below) of
the Company has been incorporated and is validly existing and
subsisting as a corporation under the laws of the jurisdiction of
its incorporation; each Principal Subsidiary of the Company has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and
as set forth in or contemplated by the Prospectus, and to our
knowledge, is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as a whole; and except as set forth in
or contemplated by the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of each Principal
Subsidiary of the Company has been authorized and is non-
assessable and, to our knowledge, all such shares are validly
issued and fully paid and (except for directors' qualifying
shares) are owned by the Company, directly or through its
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. For purposes of this
opinion, the term "Principal Subsidiary" shall mean,
collectively, the following companies: TXU Eastern Holdings
Limited, Eastern Energy Limited, Texas Utilities Australia Pty.
Ltd., The Energy Group Limited, Eastern Group plc, Eastern
Electricity plc, Eastern Generation Limited, Eastern Natural Gas
Limited, Eastern Power and Energy Trading Limited, Texas Energy
Industries Inc., ENSERCH Corporation, Lufkin-Conroe
Communications, Southwestern Electric Service Company, Texas
Utilities Electric Company, Texas Utilities Fuel Company, Texas
Utilities Mining Company and Texas Utilities Services Inc.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives and
certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte &
Touche LLP, the Company's independent certified public
accountants who audited certain of the financial statements
contained in documents incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus (including
the documents incorporated therein by reference) and take no
responsibility therefor except as set forth in paragraph 6 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except as to financial
statements and schedules and other financial and statistical data
and except as to that part of the Registration Statement that
constitutes the Forms T-1, as to which we do not express any
belief) (i) the Registration Statement, as of the Effective Date,
included an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) the
Prospectus at the time it was filed with the Commission pursuant
to Rule 424, included, or on the date hereof includes an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of Xxxxxx Xxxx & Priest LLP, New
York, New York, of Counsel to the Company; as to all matters of
Delaware law, we have, with your consent, relied upon the opinion
of Xxxxxxxx, Xxxxxx & Finger, P.A., Wilmington, Delaware, special
counsel for the Company and the Trust; and as to matters of the
law of the United Kingdom, we have, with your consent relied upon
the opinions of X.X. Lean, Group Solicitor of Eastern Group plc,
and as to all matters of law of the Commonwealth of Australia we
have with your consent relied upon the opinion of Xxxxx &
XxXxxxxx, Xxxxxx, Commonwealth of Australia, Counsel to Texas
Utilities Australia Pty. Ltd.
Very truly yours,
XXXXXXX, XXXXXXXX &
XXXXXXXXXX, L.L.P.
By:
--------------------
A Partner
Schedule V
[LETTERHEAD OF XXXXXX XXXX & PRIEST LLP]
New York, New York
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company,
doing business as TXU Corp (the "Company") in connection with the
transactions contemplated by the Underwriting Agreement dated
, 1999 among the Company, [Name of Trust] (the "Trust") and
you (the "Underwriting Agreement"), including, among others, (i)
the issuance by the Trust, a statutory business trust organized
under the Delaware Business Trust Act (the "Delaware Act") of
Preferred Trust Securities (the "Preferred Trust Securities")
having an aggregate liquidation amount of $ ,000,000, (ii) the
issuance by the Company of $ principal amount of its
Junior Subordinated Debentures, Series (the "Debentures") and
(iii) the guarantee by the Company of the Preferred Trust
Securities pursuant to a Guarantee Agreement, dated the date
hereof, between the Company and The Bank of New York, as trustee
(the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
2. The Indenture, the Trust Agreement and the
Guarantee have been duly qualified under the Trust Indenture Act;
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity;
4. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of
equity;
5. The statements made in the Prospectus under the
captions "Description of TXU Capital's Preferred Trust Securities
and Common Trust Securities," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee",
"Certain Terms of the Preferred Trust Securities" and "Certain
Terms of the Junior Subordinated Debentures" insofar as they
purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects;
6. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the Preferred Trust
Securities will be, directly or indirectly controlled by, or
acting on behalf of any person which is, an investment company
within the meaning of the Investment Company Act of 1940, as
amended;
7. 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
Forms 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 best knowledge, no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
8. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
We herewith confirm as our opinion the statements under
the caption "Certain United States Federal Income Tax
Consequences Relating to the Preferred Trust Securities" in the
Prospectus.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives, and
certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte &
Touche LLP, the Company's independent certified public
accountants who audited certain of the financial statements
contained in documents incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus (including
the documents incorporated therein by reference) and take no
responsibility therefor except as set forth in the immediately
preceding paragraph and in paragraph 5 above. However, our
examination of the information relating to the Company contained
in the Registration Statement and the Prospectus and our
discussions did not disclose to us anything which gives us reason
to believe that (except as to financial statements and schedules
and other financial and statistical data and except as to that
part of the Registration Statement that constitutes the Forms
T-1, as to which we do not express any belief) (i) the
Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus at
the time it was filed with the Commission pursuant to Rule 424,
included or on the date hereof includes an untrue statement of a
material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.,
Dallas, Texas, General Counsel for the Company; as to all matters
of Delaware law, we have, with your consent, relied upon the
opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., Wilmington, Delaware,
special counsel for the Company and the Trust. We believe that
you and we are justified in relying on such opinions.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
SCHEDULE VI
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement as defined herein
c/o
Ladies and Gentlemen:
We have acted as counsel to you and the several
Underwriters in connection with the transactions contemplated by
the Underwriting Agreement dated , 1999 between Texas
Utilities Company, doing business as TXU Corp (the "Company"),
[Name of Trust] (the "Trust") and you (the "Underwriting
Agreement") in which (i) the Trust, a statutory business trust
organized under the Delaware Business Trust Act, proposes to
issue $ ,000,000 aggregate liquidation preference amount of its
Preferred Trust Securities (the "Preferred Trust Securities"),
(ii) the Company proposes to issue $ principal amount
of its Junior Subordinated Debentures, Series , (the
"Debentures") and (iii) the Company proposes to guarantee the
Preferred Trust Securities to the extent described in the
Prospectus. Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx,
L.L.P., Dallas, Texas, General Counsel for the Company, as to the
matters covered in such opinion relating to Texas law. We have
reviewed such opinion and believe that it is satisfactory and
that you and we are justified in relying thereon. We understand
that you are relying, for all matters of Delaware law, upon an
opinion of even date herewith addressed to you by Xxxxxxxx,
Xxxxxx & Finger, P.A., Delaware Counsel for the Company.
We have, in addition, examined the documents described
in the list of closing papers as having been delivered to you at
the closing and such other documents and satisfied ourselves as
to such other matters as we have deemed necessary in order to
enable us to express this opinion. As to various questions of
fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement hereinafter mentioned. In such examination we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us and the genuineness and conformity
to original documents of documents submitted to us as certified
or photostatic copies.
Based upon the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
2. The Indenture has been duly qualified under the
Trust Indenture Act.
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of
creditors generally and of general principles of equity.
4. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of
equity.
5. The statements made in the Prospectus under the
captions "Description of TXU Capital's Preferred Trust Securities
and Common Trust Securities," "Description of the Junior
Subordinated Debentures," "Description of the Guarantee",
"Certain Terms of the Preferred Trust Securities", and "Certain
Terms of the Junior Subordinated Debentures", insofar as they
purport to constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of the terms
of such documents in all material respects.
6. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the Preferred
Trust Securities, will be, and neither the Company nor the Trust
is directly or indirectly controlled by, or acting on behalf of
any person which is, an investment company within the meaning of
the Investment Company Act of 1940.
7. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the blue-sky laws of any jurisdiction) is legally
required for the authorization of the issue and sale by the
Company of the Debentures and the issuance by the Company of the
Guarantee as contemplated in the Underwriting Agreement.
8. 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 financial
statements and schedules and other financial and statistical data
contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the
Forms T-1, as to which we do not express any opinion), complied
as to form in all material respects with the Securities Act and
the applicable instructions, rules and regulations of the
Commission thereunder.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 5 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of the Company's officers and
representatives, and representatives of certain of its
subsidiaries, with counsel for the Company, with Deloitte &
Touche LLP, the Company's independent public accountants who
audited certain of the financial statements contained in
documents incorporated by reference in the Registration Statement
and the Prospectus, and with certain of your representatives.
Our examination of the Registration Statement and the Prospectus
and our discussions did not disclose to us any information which
gives us reason to believe that at the Effective Date the
Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424, or at the date hereof,
included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. We do not express
any opinion or belief as to the financial statements and
schedules or other financial or statistical data contained or
incorporated by reference in the Registration Statement or
Prospectus or as to that part of the Registration Statement that
constitutes the Forms T-1.
This opinion is given to you solely for the use of the
several Underwriters in connection with the Underwriting
Agreement and the transactions contemplated thereunder and may
not be relied upon by any other person or for any other purpose.
Very truly yours,
