TEXAS UTILITIES COMPANY
Unsecured Debt Securities
UNDERWRITING AGREEMENT
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, 1998
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as Representatives of the Underwriters
named in Schedule I hereto
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
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corporation (the "Company"), proposes to issue and sell severally
to you (the "Underwriters") the Company's unsecured debt
securities of the series designation, with the terms and in the
principal amount specified in Schedule I hereto (the "Debt
Securities").
2. Description of Debt Securities. The Company
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proposes to issue the Debt Securities under its Indenture (For
Unsecured Debt Securities), dated as of , to
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The Bank of New York, Trustee (the "Indenture Trustee"), said
Indenture, together with any amendments or supplements thereto,
being hereinafter referred to as the "Indenture".
3. Representations and Warranties of the Company.
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The Company represents and warrants to the several Underwriters
that:
(a) It has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3, including a prospectus, on , 1998
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(Registration No. 333- ) for the registration of
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$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 Senior 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 ,
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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
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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
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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
that Registration Statement No. 333- was declared
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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.
4. Purchase and Sale. On the basis of the
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representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall sell
to each of the Underwriters, and each Underwriter shall purchase
from the Company, at the time and place herein specified,
severally and not jointly, the respective principal amount of the
Debt 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.
5. Time and Place of Closing. Delivery of the Debt
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Securities against payment therefor by wire transfer in federal
funds shall be made at the office of 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
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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 Debt Securities shall be delivered to you
for the respective accounts of the Underwriters 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 the names of the respective
Underwriters in such authorized denominations as the Company
shall determine. The Company agrees to make the Debt 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 Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
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 principal amount of the
Debt Securities which 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 principal
amount of the Debt Securities which 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 principal amount of the
Debt Securities that such Underwriter has severally agreed
to purchase hereunder as hereinabove provided and, in
addition, the principal amount of the Debt Securities that
the defaulting Underwriter shall have so failed to purchase
up to a principal amount thereof equal to one-ninth (1/9) of
the principal amount of Debt 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 principal
amount of the Debt 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 which
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
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 Debt
Securities is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event relating
to or affecting the Company or of which the Company shall be
advised in writing by you shall occur which 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 the expense of such Underwriter, a reasonable
quantity of a supplemental prospectus or supplements to the
Prospectus complying with Section 10(a) of the Securities
Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Debt 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 Debt Securities as provided in Section 5 hereof, (iii)
the qualification of the Debt 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) Prior to the Closing Date the Company will not,
without the prior written consent of the Representatives,
directly or indirectly, publicly issue, sell, offer or
contract to sell, on the market in which the Debt Securities
are being offered and sold, any securities of the Company
which are of the same class as the Debt Securities.
7. Conditions of Underwriters' Obligations. The
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obligations of the Underwriters to purchase and pay for the Debt
Securities shall be subject to the accuracy of the rep-
resentations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to
be performed hereunder prior to the Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 5:30 P.M., New York
Time, on the second business day after the date of this
Agreement, or such other time and date as may be approved by
you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P., General Counsel for
the Company, Xxxx & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, Xxxxxx & Xxxxxxx, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV and V hereto (i)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Debt 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
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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 to Texas Utilities Company
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 Debt 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 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 Company's Obligations. The
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obligation of the Company to deliver the Debt Securities shall be
subject to the conditions that the Prospectus shall have been
filed with the Commission pursuant to Rule 424 prior to 5:30
P.M., New York Time, on the second business day after the date of
this Agreement or such other time and date as may be approved by
the Company, and no stop order suspending the effectiveness of
the Registration Statement shall be in effect at the Closing Date
and no proceedings for that purpose shall be pending before, or
threatened by, the Commission at the Closing Date. In case these
conditions shall not have been fulfilled, this Agreement may be
terminated by the Company upon notice thereof to you. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
9. Indemnification.
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(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or
prospectus prior to the Effective Date, or 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 9 shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished in writing
to the Company by any 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, or arising
out of, or based upon, statements in or omissions from that
part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification under the
Trust Indenture Act of the Indenture Trustee under the
Indenture; 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 Debt 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, with respect to
the delivery of any amendment or supplement to the
Prospectus, the alleged omission or alleged untrue statement
was not corrected in such amendment or supplement at the
time of such written confirmation. The indemnity agreement
of the Company contained in this Section 9 and the
representations and warranties of the Company contained in
Section 3 hereof shall remain operative and in full force
and effect regardless of any termination of this Agreement
or of any investigation made by or on behalf of any
Underwriter or any such controlling person, and shall
survive the delivery of the Debt 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 or on
behalf of such 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 stabilization
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and other transactions by the Underwriters, and, (iii) under
"Underwriting," the list of underwriters and statements in
the , and paragraphs. The indemnity agree-
----- ----- -----
ment of the respective Underwriters contained in this Sec-
tion 9 shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of the Company, its
directors or its officers, any such Underwriter, or any such
controlling person, and shall survive the delivery of the
Debt 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 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 (in addition to local
counsel) representing the indemnified parties who are
parties to such action). Each of the Company and the
Underwriters agree 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 (i) to reflect
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 Debt Securities pursuant to this Agreement, and (iii)
any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that 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 Debt 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
Debt 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) 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 Debt 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, which
has materially impaired the marketability of the Debt 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 Debt 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
By:
----------------------------------
Name:
Title:
Accepted and delivered as of
the date first above written
By:
-----------------------------
Name:
Title:
SCHEDULE I
----------
Underwriting Agreement dated:
Underwriters:
Securities
----------
Designation:
Principal Amount:
Indenture dated as of:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
SCHEDULE II
-----------
TEXAS UTILITIES COMPANY
UNSECURED DEBT SECURITIES
Name Principal Amount
---- ----------------
SCHEDULE III
[Letterhead of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, 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 % Series D Senior Note due , (the
----- --------- ----
"Securities") pursuant to the Underwriting Agreement dated
, 1998 between the Company and 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
Indenture and the Securities. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary as a basis for the conclusions of law
contained in the opinions 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
deemed appropriate, on certificates of public officials. We have
relied upon a certificate of the trustee under the Indenture
("Trustee") 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 and the Indenture, (b) to issue the
Securities 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. Each of the Underwriting Agreement and the
Indenture has been duly authorized, executed and delivered by the
Company;
3. The Securities have been duly authorized, executed
and delivered by the Company and are entitled to the benefits of
the Indenture; and the Securities and the Indenture are legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, subject to
the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of
equity;
4. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
5. The statements made in the Prospectus under the
captions "Description of Debt Securities", 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. 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;
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 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.
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 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 Xxxx & Priest LLP, New York,
New York, of Counsel to the Company.
Very truly yours,
XXXXXXX, XXXXXXXX &
XXXXXXXXXX, L.L.P.
By:
------------------------
A Partner
SCHEDULE IV
[Letterhead of Xxxx & 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
% Series D Senior Note due , (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
Indenture and the Securities. We have also examined such other
documents and satisfied ourselves as to such other matters as we
have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials. We
have relied upon a certificate of the trustee under the Indenture
(the "Trustee") 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 and the
Indenture has been duly authorized, executed and delivered by the
Company;
2. The Securities have been duly authorized, executed
and delivered by the Company and are entitled to the benefits of
the Indenture; and the Securities and the Indenture are legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, subject to
the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of
equity;
3. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
4. The statements made in the Prospectus under the
captions "Description of Debt Securities", 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;
5. 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;
6. 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
7. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Securities.
In the course of the preparation of the information
relating to the Company contained in the 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 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 Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
XXXX & PRIEST LLP
SCHEDULE V
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
, 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 its % Series D Senior Note due ,
---- --------- ----
(the "Securities") pursuant to the Underwriting Agreement dated
, 1998 between the Company and the Underwriters (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., 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 Xxxx & 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, except specimens thereof, and have relied upon a
certificate of the Trustee as to the authentication thereof. 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 and the
Indenture has been duly authorized, executed and delivered by the
Company;
2. The Securities have been duly authorized, executed
and delivered by the Company and are entitled to the benefits of
the Indenture; and the Securities and the Indenture are legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, subject to
the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of
equity;
3. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended;
4. The statements made in the Prospectus under the
captions "Description of Debt Securities", 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;
5. 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; and
6 No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Securities.
In 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, XXXXXX
& XXXXXXX