Texas Utilities Company
Type A Securities and Type B Securities
UNDERWRITING AGREEMENT
-----------------------
, 1998
---------
as Representatives of the Underwriters
named in Schedule I hereto
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
------------
corporation (the "Company"), proposes to issue and sell severally
to you (the "Underwriters") the Company's new securities
("Securities"). The Securities will initially consist of (a)
units (referred to as "Type A Securities") with a
------------
stated amount, per Type A Security, of $ (the "Stated Amount")
---
and (b) units (referred to as "Type B Securities") with
---------
a stated amount, per Type B Security, equal to the Stated Amount.
Each Type A Security will initially consist of a unit comprised
of (a) a stock purchase contract (a "Purchase Contract") for the
purchase of shares of the Company's common stock, without par
value ("Common Stock"), and (b) an interest in a % Series D
---
Senior Note due , (each such Senior Note, a "Debt
--------- ----
Security") issued pursuant to an Indenture (For Unsecured Debt
Securities Series D), dated as of , 1998 (the
---------
"Indenture"). Each Type B Security will initially consist of a
unit comprised of (a) a Purchase Contract and (b) a 1/100
undivided beneficial interest in a zero-coupon U.S. Treasury
Security (CUSIP No. ) in a principal amount equal to
-----------
$1,000 payable on , (each such Treasury
----------- -----
Security, a "Treasury Security"). Under each Purchase Contract,
pursuant to the terms of a Purchase Contract Agreement, dated as
of , , between , as Purchase Contract
--------- ---- ---------
Agent, and the Company (the "Purchase Contract Agreement"), (i)
the holder will purchase from the Company on ,
----------- -----
(the "Purchase Contract Settlement Date"), for an amount of cash
equal to the Stated Amount, a number of newly issued shares of
Common Stock of the Company determined as provided in the
Purchase Contract and (ii) with respect to Type B Securities, the
Company will pay the holder unsecured contract adjustment
payments ("Contract Adjustment Payments"), if any, at the rate of
% of the Stated Amount per annum. In accordance with the
---
terms of the Purchase Contract Agreement, the Debt Securities
constituting a part of the Type A Securities, and the Treasury
Securities constituting a part of the Type B Securities, will be
pledged by the Purchase Contract Agent, on behalf of the holders
of the Securities, to , as Collateral Agent, pursuant
-----------
to the Pledge Agreement, to be dated as of , 1998 (the
-----------
"Pledge Agreement"), among the Company, the Purchase Contract
Agent, the Collateral Agent, the Custodial Agent and the
Securities Intermediary, to secure the holders' obligation to
purchase Common Stock under the Purchase Contracts. Under
certain circumstances, the Debt Securities will be subject to
remarketing pursuant to a Remarketing Agreement, dated as of
, 1998, between and the Company (the
--------- ---------
"Remarketing Agreement").
2. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to the several Underwriters
that:
(a) It has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3, including a prospectus, on , 1998
------------
(Registration No. 333- ) for the registration of
-------
$900,000,000 aggregate amount of the Company's (i) Debt
Securities, (ii) Common Stock, (iii) contracts to purchase
shares of Common Stock ("Stock Purchase Contracts") and (iv)
Stock Purchase Units, each representing ownership of a Stock
Purchase Contract and Debt Securities or obligations of
third parties, under the Securities Act of 1933, as amended
(the "Securities Act"). Such registration statement was
declared effective by the Commission on , 1998.
-------------
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
--------
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 1933 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, forming a part of Registration
Statement No. 333- , as amended or supplemented as of
-------
such date, 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- 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 included as part of the Registration
Statement fully complied and at the Closing Date, as
hereinafter defined, the Registration Statement, the
Prospectus and the Indenture will fully comply in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and the applicable rules and regu-
lations 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 neces-
sary 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 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 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, charter, by-laws or other agreement or instrument
to which the Company is now a party.
3. 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 principal amount of Securities set
forth opposite the name of such Underwriter in Schedule II
attached hereto, at the purchase price set forth in Schedule I
hereto.
4. Time and Place of Closing. Delivery of the
-------------------------
Securities against payment therefor by wire transfer in federal
funds shall be made at the office of ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New York Time, on
, 1998, or at such other place, time and date as shall
---------
be agreed upon in writing by the Company and you or established
in accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Securities shall be delivered to you in fully registered form
in such denominations of $1,000 or any multiple thereof and
registered in such names as you shall reasonably request in
writing not later than the close of business on the second
business day prior to the Closing Date, or, to the extent not so
requested, registered in your name in such authorized
denominations as the Company shall determine. The Company agrees
to make the Securities available to you for checking purposes not
later than 10:00 A.M., New York Time, on the last business day
preceding the Closing Date at the office of ▇▇▇▇ & Priest LLP, ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
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 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 Securities that the defaulting
Underwriter had agreed to purchase. If any non-defaulting
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 Securities that it had agreed to
purchase hereunder as hereinafter provided and, in addition,
the Securities of each type that the defaulting Underwriter
shall have so failed to purchase; provided, however, that no
non-defaulting Underwriter shall be required to purchase
such additional Securities of either type in an amount
exceeding one-ninth (1/9) of the principal amount of the
Securities of each type 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 Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the
Securities that such defaulting Underwriter had agreed to
purchase or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to
the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred to in
this Section 4, 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 4 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 4 shall be without
liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 5(g) and 8
hereof.
5. Covenants of the Company. The Company agrees
------------------------
that:
(a) It will promptly deliver to 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
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 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 your request, will furnish to
you, at your expense, a reasonable quantity of a
supplemental prospectus or supplements to the Prospectus
complying with Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Securities for offer and sale under the blue-sky laws of
such jurisdictions as you may designate, provided that the
Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be
unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Securities as provided in Section 4 hereof, (iii) the
qualification of the Securities under blue-sky laws
(including counsel fees not to exceed $7,500), and (iv) the
printing and delivery to the Underwriters of reasonable
quantities of the Registration Statement and, except as
provided in Section 5(d) hereof, of the Prospectus. The
Company shall not, however, be required to pay any amount
for any expenses of yours, except that, if this Agreement
shall be terminated in accordance with the provisions of
Section 5, 6 or 9 hereof, the Company will reimburse you for
the fees and disbursements of Counsel for the Underwriters,
whose fees and disbursements the Underwriters agrees 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) Prior to the Closing Date the Company will not,
without your prior written consent, directly or indirectly,
publicly issue, sell, offer or contract to sell, in the
market in which the Securities are being offered and sold,
any securities of the Company which are of the same class as
the Securities.
6. 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
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
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P., General Counsel for
the Company, ▇▇▇▇ & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV and V hereto (i)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Securities shall be supplemented or amended after the
Prospectus shall have been filed with the Commission
pursuant to Rule 424, with any changes therein necessary to
reflect such supplementation or amendment.
(d) On and as of the date hereof 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 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 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 that caused them to believe that
(A) the unaudited financial statements incorporated by
reference in the Prospectus were not determined in accor-
dance with generally accepted accounting principles applied
on a basis substantially consistent with that of the
corresponding amounts in the latest available audited
financial statements, (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 incorporated by reference in the Prospectus, (C) for
the months ended as of the date of the latest available
-----
financial statements of the Company, 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, notes
payable 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 sheet 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 that 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 subject to the internal controls of the
Company's accounting system 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 in-
formation is given in the Registration Statement or the
Prospectus, there shall not have been any material adverse
change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole,
whether or not in the ordinary course of business, and,
since such dates, there shall not have been any material
transaction entered into by the Company, other than transac-
tions in the ordinary course of business and transactions
contemplated by the Registration Statement or Prospectus,
and at the Closing Date you shall have received a
certificate to such effect dated the Closing Date and signed
by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Securities shall have been
satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 6 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
5(g) and 8 hereof.
7. 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 you. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 5(g) and 8 hereof.
8. Indemnification.
---------------
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus, or 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 8 shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon information
furnished in writing to the Company by any Underwriter, or
Counsel for the Underwriters, for use in connection with the
preparation of the Registration Statement or the Prospectus
or any amendment or supplement to either thereof, or arising
out of, or based upon, statements in or omissions from that
part of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust
Indenture Act of any Trustee with respect to any indenture
qualified pursuant to the Registration Statement; and
provided further, that the indemnity agreement contained in
this Section 8 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Securities
to any person if a copy of the Prospectus (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 8 and the representations and
warranties of the Company contained in Section 2 hereof
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of
the Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its officers and directors, and each
person who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished in writing to the Company by the
Underwriter, through you or Counsel for the Underwriters,
for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof. Each Underwriter hereby
furnishes to the Company in writing expressly for use in the
Prospectus (i) the statements relating to offerings by the
Underwriters on the cover page, (ii) the statements in the
first paragraph on page concerning overallotments and
----
other transactions by the Underwriters, and (iii) under
"Underwriting," the statements in the , , and
------- -------
paragraphs. The indemnity agreement of the
-------
respective Underwriters contained in this Section 8 shall
remain operative and in full force and effect regardless of
any termination of this Agreement or of any investigation
made by or on behalf of the Company, its directors or its
officers, any such Underwriter, or any such controlling
person, and shall survive the delivery of the Securities.
(c) The Company and the several Underwriters each
shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder,
but the failure so 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 it is not materially prejudiced as a result of
such failure to notify and in any event shall not relieve it
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 the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party (it being understood,
however, that the indemnifying party shall not be liable for
the 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
provision 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 sub-
paragraph (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 that have resulted in such
losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of
the Securities pursuant to this Agreement, and (iii) any
other relevant equitable considerations; provided, however,
that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation or by any
other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, no Underwriter shall be
required to contribute in excess of the amount equal to the
excess of (i) the total price at which the Securities
underwritten by it were offered to the public, over (ii) the
amount of any damages which the 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 8 are several and not joint and shall be in the
same proportion of all contributions of Underwriters
required hereunder as such Underwriter's obligation to
underwrite Securities is of the total amount of Securities
set forth in Schedule I hereto.
9. 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 Underwriters,
for the Underwriters to enforce contracts for the sale of the
Securities. This Agreement may also be terminated at any time
prior to the Closing Date by the Representatives if, in your
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, that has materially impaired the
marketability of the Securities. Any termination hereof pursuant
to this Section 9 shall be without liability of any party to any
other party except as otherwise provided in Sections 5(g) and 8
hereof.
10. 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 8 hereof, each director, officer and controlling person
referred to in said Section 8, 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.
11. 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 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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
By
------------------------------
Accepted and delivered as of
the date first above written
BY
By
------------------------
SCHEDULE I
----------
Underwriting Agreement dated:
Underwriters:
Type A Securities
Designation:
Aggregate Stated Amount:
Purchase Price:
Public Offering Price:
Type B Securities
Designation:
Aggregate Stated Amount:
Purchase Price:
Public Offering Price:
SCHEDULE II
-----------
Texas Utilities Company
Type A Securities and Type B Securities
Principal Amount of Principal Amount of
Name Type A Securities Type BSecurities
---- ---------------- ----------------
SCHEDULE III
[Letterhead of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P.]
, 1998
---------
as Representatives of the Underwriters named in the
Underwriting Agreement, dated , 1998,
---------
between Texas Utilities Company and the Underwriters
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Company (the "Company") in connection with the issuance and sale
of its Type A Securities and Type B Securities (the "Securities")
pursuant to the Underwriting Agreement dated , 1998
--------
between the Company and the Underwriters (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, the
Remarketing Agreement, the Pledge Agreement, the Purchase
Contract Agreement, the Indenture, the Purchase Contracts, 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 enumerated 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 trustee under the Indenture
(the "Trustee") as to the authentication of the Debt Securities
and a certificate of the Agent under the Purchase Contract
Agreement as to the authentication of the Securities. 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, Purchase Contract Agreement, Pledge
Agreement, Purchase Contracts, Indenture and the Remarketing
Agreement, (b) to issue the Securities, the Common Stock issuable
pursuant to the Purchase Contracts and the Debt Securities and to
incur the indebtedness to be evidenced thereby, (c) to make the
Contract Adjustment Payments and (d) to own its property and
assets and to conduct the business which it is now conducting;
2. 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;
3. The Securities and the Debt Securities have been
duly authorized, executed and delivered by the Company; the Debt
Securities are entitled to the benefits of the Indenture; and the
Securities, the Debt Securities, the Purchase Contract Agreement,
the Pledge Agreement, the Purchase Contracts and the Indenture
are legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity and, with respect to the Pledge
Agreement, subject to any principles of public policy limiting
the right to enforce the indemnification provisions contained
therein;
4. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
5. 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; the issuance of such Common Stock will not be subject
to preemptive or other similar rights arising by law or, to the
best of our knowledge, otherwise;
6. The statements made in the Prospectus under the
captions "Description of Debt Securities", "Description of
Capital Stock" and "Description of Stock Purchase Contracts and
Stock Purchase Units", 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. Other than as stated, referred to or incorporated
by reference in the Registration Statement and the Prospectus,
there are no material pending legal proceedings to which the
Company 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;
8. 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
as to financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for those parts of the Registration
Statement that constitute the Form T-1) complied as to form in
all material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
9. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Securities, the Debt
Securities or the Common Stock issuable pursuant to the Purchase
Contracts.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference), we had discussions with certain of its officers
and representatives, with other counsel for the Company, with
Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus, and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth 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 the financial
statements and schedules and other financial and statistical data
contained therein as to which we do not express any belief and
except for those parts of the Registration Statement that
constitute the Form T-1) (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 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
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 ▇▇▇▇ & Priest LLP, New York,
New York, of Counsel to the Company.
Very truly yours,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇, L.L.P.
By:
-------------------------
A Partner
SCHEDULE IV
[Letterhead of ▇▇▇▇ & Priest LLP]
New York, New York
, 1998
---------
as Representatives of the Underwriters named in the
Underwriting Agreement, dated , 1998,
---------
between Texas Utilities Company and the Underwriters
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company
(the "Company") in connection with the issuance and sale of its
Type A Securities and Type B Securities (the "Securities")
pursuant to the Underwriting Agreement dated , 1998
---------
between the Company and the Underwriters (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, the
Remarketing Agreement, the Pledge Agreement, the Purchase
Contract Agreement, the Indenture, the Purchase Contracts, 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 enumerated 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 trustee under the Indenture
(the "Trustee") as to the authentication of the Debt Securities
and a certificate of the Agent under the Purchase Contract
Agreement as to the authentication of the Securities. 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. 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;
2. The Securities and the Debt Securities have been
duly authorized, executed and delivered by the Company; the Debt
Securities are entitled to the benefits of the Indenture; and the
Securities, the Debt Securities, the Purchase Contract Agreement,
the Pledge Agreement, the Purchase Contracts and the Indenture
are legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity and, with respect to the Pledge
Agreement, subject to any principles of public policy limiting
the right to enforce the indemnification provisions contained
therein;
3. The provisions of the Pledge Agreement are
effective to create in favor of the Collateral Agent for the
benefit of the Company, a valid and perfected security interest
under the Uniform Commercial Code as in effect on the date of
such opinion in the State of New York in the pledged Debt
Securities and the pledged Treasury Securities from time to time
credited to the Collateral Account;
4. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
5. 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; the issuance of such Common Stock will not be
subject to preemptive or other similar rights arising by law or,
to the best of our knowledge, otherwise;
6. The statements made in the Prospectus under the
captions "Description of Debt Securities", "Description of
Capital Stock" and "Description of Stock Purchase Contracts and
Stock Purchase Units", 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. 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
as to the financial statements and schedules and other financial
and statistical data contained therein as to which we do not
express any belief and except for those parts of the Registration
Statement that constitute the Form T-1) complied as to form in
all material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our 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 Securities, the Debt
Securities or the Common Stock issuable pursuant to the Purchase
Contracts.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference) we had discussions with certain of its officers and
representatives, with other counsel for the Company, with
Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 4 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except as to the financial
statements and schedules and other financial and statistical data
contained therein, as to which we do not express any belief and
except for those parts of the Registration Statement that
constitute the Form T-1) (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 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
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 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
▇▇▇▇ & PRIEST LLP
SCHEDULE V
[Letterhead of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
, 1998
---------
as Representatives of the Underwriters named in the
Underwriting Agreement, dated , 1998,
---------
between Texas Utilities Company and the Underwriters
Ladies and Gentlemen:
We have acted as counsel to the Underwriters in
connection with your purchase from Texas Utilities Company (the
"Company") of the Type A Securities and the Type B Securities
(the "Securities") pursuant to the Underwriting Agreement dated
, 1998 between the Underwriters and the Company (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 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇,
L.L.P., of Dallas, Texas, General Counsel for the Company, as to
the matters covered in such opinion relating to Texas law. We
have reviewed such opinion and believe that it is satisfactory
and that you and we are justified in relying thereon. We have
also reviewed the opinion of ▇▇▇▇ & Priest LLP required by
paragraph (c) of Section 6 of the Underwriting Agreement, and we
believe such opinion to be satisfactory.
We have, in addition, examined the documents described
in the list of closing papers as having been delivered to you at
the closing and such other documents and satisfied ourselves as
to such other matters as we have deemed necessary in order to
enable us to express this opinion. We have not examined the
Securities or the Debt Securities, except specimens thereof, and
have relied upon a certificate of the Agent under the Purchase
Contract Agreement as to the authentication of the Securities and
a certificate of the trustee under the Indenture as to the
authentication of the Debt Securities. As to various questions
of fact material to this opinion, we have relied upon
representations of the Company and statements in the Registration
Statement hereinafter mentioned. In such examination we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us and the genuineness and conformity
to original documents of documents submitted to us as certified
or photostatic copies.
Based on the foregoing, we are of the opinion that:
1. 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;
2. The Securities and the Debt Securities have been
duly authorized, executed and delivered by the Company; the
Debt Securities are entitled to the benefits of the
Indenture; and the Securities, the Debt Securities, the
Purchase Contract Agreement, the Pledge Agreement, the
Purchase Contracts and the Indenture are legal, valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject
to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity and, with respect to the Pledge
Agreement, subject to any principles of public policy
limiting the right to enforce the indemnification provisions
contained therein;
3. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
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; the issuance of
Common Stock will not be subject to preemptive or other
similar rights arising by law or to the best of our
knowledge, otherwise;
5. The statements made in the Prospectus under the
captions "Description of Debt Securities", "Description of
Capital Stock" and "Description of Stock Purchase Contracts
and Stock Purchase Units", insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents
in all material respects;
6. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the blue-sky laws of any jurisdiction) is
legally required for the authorization of the issue and sale
by the Company of the Securities, the Debt Securities or the
Common Stock issuable pursuant to the Purchase Contracts, as
contemplated in the Underwriting Agreement; and
7. The Registration Statement, at the Effective Date
thereof, 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 those parts of the Registration
Statement that constitute the Form T-1, upon which we
express no opinion), complied as to form in all material
respects with the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 4 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of its officers and representatives,
with counsel for the Company, with Deloitte & Touche LLP, the
independent public accountants who audited certain of the
financial statements incorporated by reference in the
Registration Statement and the Prospectus and with certain of
your representatives. Our examination of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that at
the Effective Date the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time it was
filed with the Commission pursuant to Rule 424, or at the date
hereof, included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to the financial statements
or other financial or statistical data contained or incorporated
by reference in the Registration Statement or the Prospectus or
as to those parts of the Registration Statement that constitute
the 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 by any other
person or for any other purpose.
Very truly yours,
WINTHROP, STIMSON, ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇
