EXHIBIT 1(a)
TXU GAS COMPANY
[Name of Security]
UNDERWRITING AGREEMENT
[Date]
as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o
Ladies and Gentlemen:
1. Introduction. TXU Gas Company, a Texas corporation (the
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"Company"), proposes to issue and sell severally to the underwriters named in
Schedule II hereto (the "Underwriters") the [Name of Security] of the
designation, with the terms and in the aggregate principal amount specified in
Schedule I hereto (the "Securities").
2. Description of Securities. The Securities are to be issued
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pursuant to the provisions of an Indenture (For Unsecured Debt Securities),
dated as of January 1, 1998, between the Company and The Bank of New York, as
trustee (the "Indenture Trustee"), said Indenture, together with any amendments
or supplements thereto, being hereinafter referred to as the "Indenture".
3. Representations and Warranties of the Company. The Company
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represents and warrants to the several Underwriters that:
(a) The Company and three of its financing subsidiaries (the
"Trusts") have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 on , 1999
(Registration Nos. 333- , 333- -01, 333- -02 and
333- -03) for the registration under the Securities Act of 1933,
as amended (the "Securities Act") of $500,000,000 aggregate amount of
(i) the Company's unsecured debt securities ("Debt Securities") and
(ii) the preferred trust securities of the Trusts, and a principal
amount of the Company's junior subordinated debentures and guarantees
and other obligations of the Company in respect of such preferred
trust securities. Such registration statement ("Registration Statement
No. 333- ") became effective on , 1999. The
Company has also filed with the Commission under the Securities Act, a
registration statement on Form S-3 on January 7, 1998 (Registration
Nos. 333-43811 and 333-43811-01) for the registration of $275,000,000
aggregate amount (i) the Company's Debt Securities and (ii) certain
trust securities of ENSERCH Capital I, which has been renamed TXU Gas
Capital I, and related securities of the Company, of which all but
$100,000,000 aggregate principal amount of the Company's Debt
Securities have been previously issued. Such registration
statement was declared effective by the Commission on January 13, 1998.
Such registration statement ("Registration Statement No. 333-43811")
was amended by Post-Effective Amendment No. 1, which was filed on
January 21, 1998 and became effective on January 23, 1998. References
herein to the term "Registration Statement" as of any date shall be
deemed to refer to each of Registration Statement Nos. 333- and
Registration Statement No. 333-43811, each as amended or supplemented
to such date, including all documents incorporated by reference therein
as of such date pursuant to Item 12 of Form S-3 ("Incorporated
Documents"). References herein to the term "Prospectus" as of any given
date shall be deemed to refer to the combined prospectus relating to
the securities registered under Registration Statement 333- and
the securities registered and remaining unissued under Registration
Statement 333-43811 that forms a part of Registration Statement No.
333- , as amended or supplemented as of such date (other than by
amendments or supplements relating to securities other than the
Securities), including all Incorporated Documents as of such date and
including any prospectus supplement relating to the Securities;
provided that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the General Rules and Regulations
of the Securities Act Regulations (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462(b) Registration
Statement. References herein to the term "Effective Date" shall be
deemed to refer to the time and date Registration Statement No.
333- or the Rule 462(b) Registration Statement, as the case
may be, was declared effective. The Company will not file any amendment
to the Registration Statement or supplement to the Prospectus on or
after the date of this Agreement and prior to the Closing Date, as
hereinafter defined, without prior notice to the Underwriters, or to
which Counsel for the Underwriters shall reasonably object in writing.
For the purposes of this Agreement, any Incorporated Document filed
with the Commission on or after the date of this Agreement and prior to
the Closing Date, as hereinafter defined, shall be deemed an amendment
or supplement to the Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement and the
Prospectus complied in all material respects and at the Closing Date,
as hereinafter defined, the Registration Statement, the Prospectus and
the Indenture will comply in all material respects with the applicable
provisions of the Securities Act, the Trust Indenture Act of 1939, as
amended ("Trust Indenture Act"), and the applicable rules and
regulations of the Commission thereunder; on the Effective Date the
Registration Statement did not, and at the Closing Date, as hereinafter
defined, the Registration Statement will not, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; on the Effective Date the Prospectus did not, and at the
Closing Date, as hereinafter defined, and on the date it is filed with
the Commission pursuant to Rule 424 of the General Rules and
Regulations of the Securities Act ("Rule 424"), the Prospectus will
not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and on said dates the Incorporated Documents, taken together as a
whole, 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, in
the light of the circumstances under which they were made, not
misleading; provided that the foregoing representations and warranties
in this paragraph (b) shall not apply to statements or omissions made
in reliance upon information furnished in writing to the Company by, or
on behalf of, any Underwriter for use in connection with the
preparation of the Registration Statement or the Prospectus or to any
statements in or omissions from the Statements of Eligibility and
Qualification under the Trust Indenture Act, or amendments thereto,
filed as exhibits to the Registration Statement.
(c) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is now a party.
4. Purchase and Sale.
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(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
the Company shall sell to each of the Underwriters, and each
Underwriter shall purchase from the Company, at the time and place
herein specified, severally and not jointly, the aggregate amount of
the Securities set forth opposite the name of such Underwriter in
Schedule II attached hereto, at the purchase price or prices set forth
in Schedule I hereto.
(b) The Company shall pay to the Underwriters a
commission equal to % of the aggregate principal amount
of the Securities.
5. Time and Place of Closing. Delivery of the Securities,
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against payment of the aggregate purchase price therefor, plus accrued interest
thereon, if any, from the date of original issuance to the date of payment for
and delivery of the Securities by wire transfer in federal funds shall be made
at the offices of Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 10:00 A.M., New York Time, on , or at such other place,
time and date as shall be agreed upon in writing by the Company and you or
established in accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date". The Securities
shall be delivered [to The Depository Trust Company or to The Bank of New York,
as custodian for The Depository Trust Company, in fully registered global form
registered in the name of Cede & Co. for the respective accounts specified by
you not later than the close of business on the business day preceding the
Closing Date] [to you for the respective accounts of the several Underwriters,
registered in such names and in such denominations as you shall request in
writing not less than one full business day prior to the Closing Date]. The
Company agrees to make the Securities available to you for checking purposes
not later than 10:00 A.M., New York Time, on the last business day preceding
the Closing Date at the offices of Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such other place as the Company may
specify.
If any Underwriter shall fail or refuse (otherwise than for
some reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to purchase and pay
for the principal amount of the Securities that such Underwriter has agreed to
purchase and pay for hereunder, the Company shall immediately give notice to the
other Underwriters of the default of such Underwriter, and the other
Underwriters shall have the right within 24 hours after the receipt of such
notice to determine to purchase, or to procure one or more others, who are
members of the National Association of Securities Dealers, Inc. ("NASD") (or, if
not members of the NASD, who are not eligible for membership in the NASD and who
agree (i) to make no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with the NASD's Conduct Rules) and satisfactory to the
Company, to purchase, upon the terms herein set forth, the principal amount of
the Securities that the defaulting Underwriter had agreed to purchase. If any
non-defaulting Underwriter or Underwriters shall determine to exercise such
right, such Underwriter or Underwriters shall give written notice to the Company
of the determination in that regard within 24 hours after receipt of notice of
any such default, and thereupon the Closing Date shall be postponed for such
period, not exceeding three business days, as the Company shall determine. If in
the event of such a default no non-defaulting Underwriter shall give such
notice, then this Agreement may be terminated by the Company, upon like notice
given to the non-defaulting Underwriters, within a further period of 24 hours.
If 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 number or amount of the Securities that it had
agreed to purchase hereunder as hereinabove provided and, in addition,
the principal amount of the 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 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 Securities that such defaulting Underwriter
had agreed to purchase or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the
foregoing clause (a).
In the event the Company shall exercise its rights under (a) and/or (b) above,
the Company shall give written notice thereof to the non-defaulting Underwriters
within such further period of 24 hours, and thereupon the Closing Date shall be
postponed for such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred to in
this Section 5, there shall be excluded a period of 24 hours in respect of each
Saturday, Sunday or legal holiday that would otherwise be included in such
period of time.
Any action taken by the Company under this Section 5 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement. Termination by the Company under this
Section 5 shall be without any liability on the part of the Company or any
non-defaulting Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees that:
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(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 Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event relating
to or affecting the Company or of which the Company shall be advised in
writing by you shall occur that in the Company's reasonable opinion
after consultation with Counsel for the Underwriters
should be set forth in a supplement to, or an amendment of, the
Prospectus in order to make the Prospectus not misleading in the light
of the circumstances when it is delivered to a purchaser, the Company
will, at its expense, amend or supplement the Prospectus by either (i)
preparing and furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Prospectus or (ii) making an appropriate filing
pursuant to Section 13 of the Exchange Act, which will supplement or
amend the Prospectus so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading; provided that should such event relate
solely to the activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and furnishing any
such amendment or supplement. In case any Underwriter is required to
deliver a prospectus after the expiration of nine months from the date
the Prospectus is filed with the Commission pursuant to Rule 424, the
Company, upon such Underwriter's request, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity
of a supplemental prospectus or supplements to the Prospectus complying
with Section 10(a) of the Securities Act.
(e) It will make generally available to its security holders,
as soon as practicable, an earnings statement (which need not be
audited) covering a period of at least twelve months beginning not
earlier than the first day of the month next succeeding the month in
which occurred the effective date of the Registration Statement as
defined in Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Securities for offer
and sale under the blue-sky laws of such jurisdictions as you may
designate, provided that the Company shall not be required to qualify
as a foreign corporation or dealer in securities, to file any consents
to service of process under the laws of any jurisdiction, or to meet
any other requirements deemed by the Company to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and
taxes (except transfer taxes) in connection with (i) the preparation
and filing by it of the Registration Statement, (ii) the issuance and
delivery of the Securities as provided in Section 5 hereof, (iii) the
qualification of the Securities under blue-sky laws (including counsel
fees not to exceed $7,500), and (iv) the printing and delivery to the
Underwriters of reasonable quantities of the Registration Statement
and, except as provided in Section 6(d) hereof, of the Prospectus. The
Company shall not, however, be required to pay any amount for any
expenses of yours or any of the Underwriters, except that, if this
Agreement shall be terminated in accordance with the provisions of
Section 7, 8 or 10 hereof, the Company will reimburse you for the fees
and disbursements of Counsel for the Underwriters, whose fees and
disbursements the Underwriters agree to pay in any other event, and
will reimburse the Underwriters for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding $5,000, incurred in
contemplation of the performance of this Agreement. The Company shall
not in any event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits.
(h) During the period from the date of this Agreement to the
Closing Date, the Company will not, without the prior written consent
of the Representatives, directly or indirectly, publicly issue, sell,
offer or contract to sell, in the market in which the Securities are
being offered and sold, any securities of the Company or any of its
subsidiaries which are of the same class as the Securities.
7. Conditions of Underwriters' Obligations. The obligations
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of the Underwriters to purchase and pay for the Securities shall be subject to
the accuracy of the representations and warranties made herein on the part of
the Company, to the performance by the Company of its obligations to be
performed hereunder prior to the Closing Date, and to the following conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 prior to 5:30 P.M., New York Time, on the second
business day after the date of this Agreement, or such other time and
date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that
purpose shall be pending before, or threatened by, the Commission on
the Closing Date; and you shall have received a certificate, dated the
Closing Date and signed by an officer of the Company, to the effect
that no such stop order is in effect and that no proceedings for such
purpose are pending before, or to the knowledge of the Company
threatened by, the Commission.
(c) On the Closing Date, you shall have received from Xxxxxxx,
Xxxxxxxx & Xxxxxxxxxx, L.L.P., General Counsel for the Company, Xxxxxx
Xxxx & Priest LLP, of counsel for the Company, and Winthrop, Stimson,
Xxxxxx & Xxxxxxx, Counsel for the Underwriters, opinions in
substantially the form and substance prescribed in Schedules III, IV
and V hereto (i) with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the Underwriters, and
(ii) if the Prospectus relating to the Securities shall be supplemented
or amended after the Prospectus shall have been filed with the
Commission pursuant to Rule 424, with any changes therein necessary to
reflect such supplementation or amendment.
(d) On and as of the Closing Date, you shall have received
from Deloitte & Touche LLP a letter to the effect that (i) they are
independent certified public accountants with respect to the Company,
within the meaning of the Securities Act and the applicable published
rules and regulations thereunder, (ii) in their opinion, the financial
statements audited by them and included or incorporated by reference in
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
applicable published rules and regulations thereunder, (iii) on the
basis of a reading of the unaudited amounts of operating revenues and
net income included or incorporated by reference in the Prospectus and
the related financial statements from which these amounts were derived,
the latest available unaudited financial statements of the Company and
the minute books of the Company and inquiries of officers of the
Company and of certain material direct or indirect subsidiaries of the
Company who have responsibility for financial and accounting matters
(it being understood that the foregoing procedures do not constitute an
audit made in accordance with generally accepted auditing standards and
would not necessarily reveal matters of significance with respect to
the comments made in such letter, and accordingly that Deloitte &
Touche LLP makes no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing has come to
their attention which caused them to believe that (A) the unaudited
financial statements of the Company incorporated by reference in the
Prospectus were not determined in accordance with generally accepted
accounting principles applied on a basis substantially consistent with
that of the corresponding amounts in the latest available audited
financial statements of the Company, (B) the unaudited amounts of
operating revenues and net income of the Company included or
incorporated by reference in the Prospectus were not determined on a
basis substantially consistent with that of the corresponding amounts
in the audited statements of income of the Company, incorporated by
reference in the Prospectus, (C) for the twelve months ended ,
if available, there were any decreases in operating revenues or net
income as compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior to the date
of such letter, there was any change in the capital stock of the
Company, short-term bank loans, commercial paper, notes payable to TXU
Corp or long-term debt of the Company or decrease in its net assets, in
each case as compared with amounts shown in the most recent balance
sheets of the Company incorporated by reference in the Prospectus,
except in all instances for changes or decreases that the Prospectus
discloses have occurred or may occur or which are occasioned by the
declaration of a regular quarterly dividend or the acquisition of
long-term debt for sinking fund purposes, or which are
described in such letter, and (iv) they have compared the dollar
amounts (or percentages or ratios derived from such dollar amounts) and
other financial information included or incorporated by reference in
the Registration Statement and the Prospectus as reasonably requested
by you (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company and its consolidated
subsidiaries subject to the internal controls of the accounting system
of such companies or are derived indirectly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter, and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(e) Since the most recent dates as of which information is
given in the Registration Statement or the Prospectus there shall not
have been any material adverse change in the business, property or
financial condition of the Company and its subsidiaries, considered as
a whole, and, since such dates, there shall not have been any material
transaction entered into by the Company and its subsidiaries, in each
case other than transactions in the ordinary course of business and
transactions contemplated by the Registration Statement or Prospectus,
and at the Closing Date you shall have received a certificate to such
effect dated the Closing Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection with the
issuance and sale of the Securities as described in the Prospectus
shall have been satisfactory in form and substance to Counsel for the
Underwriters.
(g) Since the date of this agreement, neither Xxxxx'x Investor
Services nor Standard and Poor's Corporation shall have downgraded or
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any securities of the
Company which are of the same class as the Securities or the financial
condition of the Company.
In case any of the conditions specified above in this Section
7 shall not have been fulfilled, this Agreement may be terminated by the
Representatives upon notice thereof to the Company. Any such termination shall
be without liability of any party to any other party except as otherwise
provided in Sections 6(g) and 9 hereof.
8. Conditions of Company's Obligations. The obligation of the
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Company to deliver the Securities shall be subject to the conditions that the
Prospectus shall have been filed with the Commission pursuant to Rule 424 prior
to 5:30 P.M., New York Time, on the second business day after the date of this
Agreement or such other time and date as may be approved by the Company, and no
stop order suspending the effectiveness of the Registration Statement shall be
in effect at the Closing Date and no proceedings for that purpose shall be
pending before, or threatened by, the Commission at the Closing Date. In case
these conditions shall not have been fulfilled, this Agreement may be terminated
by the Company upon notice thereof to you. Any such termination shall be without
liability of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
9. Indemnification.
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(a) The Company shall indemnify, defend and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of Section 15 of the Securities Act from and against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or any
other statute or common law and shall reimburse each such Underwriter
and controlling person for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) incurred by
them in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in the
light of the circumstances under which they were made not misleading;
provided, however, that the indemnity agreement contained in this
Section 9 shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon, any
such untrue statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made in reliance
upon information furnished in writing to the Company by or on behalf of
any Underwriter, through the Representatives or Counsel for the
Underwriters, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement
to either thereof, or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement that shall
constitute the Statements of Eligibility and Qualification under the
Trust Indenture Act of any Trustee with respect to any indenture
qualified pursuant to the Registration Statement; and provided further,
that the indemnity agreement contained in this Section 9 shall not
inure to the benefit of any Underwriter (or of any person controlling
such Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of the
Securities to any person if a copy of the Prospectus (including any
amendment or supplement thereto if any amendments or supplements
thereto shall have been furnished to the Underwriters at or prior to
the time of written confirmation of the sale involved and such
amendment or supplement corrected the alleged omission or alleged
untrue statement in 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. The indemnity agreement of the
Company contained in this Section 9 and the representations and
warranties of the Company contained in Section 3 hereof shall remain
operative and in full force and effect regardless of any termination of
this Agreement or of any investigation made by or on behalf of any
Underwriter or any such controlling person, and shall survive the
delivery of the Securities.
(b) Each Underwriter shall indemnify, defend and hold harmless
the Company, its officers and directors, and each person who controls
the Company within the meaning of Section 15 of the Securities Act,
from and against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under
the Securities Act or any other statute or common law and shall
reimburse each of them for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) incurred by
them in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of such Underwriter, through the
Representatives or Counsel for the Underwriters, for use in connection
with the preparation of the Registration Statement or the Prospectus or
any amendment or supplement to either thereof. Each Underwriter hereby
furnishes to the Company in writing expressly for use in the Prospectus
[indicate topics addressed and location in the Prospectus.] The
indemnity agreement of the respective Underwriters contained in this
Section 9 shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any investigation
made by or on behalf of the Company, its directors or its officers, any
such Underwriter, or any such controlling person, and shall survive the
delivery of the Securities.
(c) The Company and the several Underwriters each shall, upon
the receipt of notice of the commencement of any action against it or
any person controlling it as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement contained herein,
promptly give written notice of the commencement thereof to the party
or parties against whom indemnity shall be sought hereunder, but the
omission so to notify such indemnifying party or parties of any such
action shall not relieve such indemnifying party or parties from any
liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of any
such action shall be so given, such indemnifying party shall be
entitled to participate at its own expense in the defense, or, if it so
elects, to assume (in conjunction with any other indemnifying parties)
the defense of such action, in which event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant
or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them;
but if the indemnifying party shall elect not to assume the defense of
such action, such indemnifying party will reimburse such indemnified
party or parties for the reasonable fees and expenses of any counsel
retained by them; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying party
and counsel for the indemnifying party shall have reasonably concluded
that there may be a conflict of interest involved in the representation
by such counsel of both the indemnifying party and the indemnified
party, the indemnified party or parties shall have the right to select
separate counsel, satisfactory to the indemnifying party, to
participate in the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel representing the indemnified parties who are parties to such
action). Each of the Company and the Underwriters agrees that without
the other party's prior written consent, which consent shall not be
unreasonably withheld, it will not settle, compromise or consent to the
entry of any judgment in any claim in respect of which indemnification
may be sought under the indemnification provisions of this Agreement,
unless such settlement, compromise or consent (i) includes an
unconditional release of such other party from all liability arising
out of such claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
such other party.
(d) If the indemnification provided for in 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 which have
resulted in such losses, claims, damages, liabilities and expenses,
(ii) the relative benefits received by the Company on the one hand and
the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement, and (iii) any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any
indemnifying party not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the indemnified
party and each such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Company and each of the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subparagraph (d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to
contribute in excess of the amount equal to the excess of (i) the total
price at which the Securities underwritten by it were offered to the
public, over (ii) the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The obligations of
each Underwriter to contribute pursuant to this Section 9 are several
and not joint and shall be in proportion to the principal amount of
Securities set forth opposite its name in Schedule II hereto.
10. Termination. This Agreement may be terminated, at any time
-----------
prior to the Closing Date, by the Representatives by written notice to the
Company if (a) after the date hereof and at or prior to the Closing Date there
shall have occurred any suspension or material limitation of trading of any of
the Company's securities on the New York Stock Exchange, Inc. ("NYSE") or any
general suspension of trading in securities on the NYSE, the American Stock
Exchange, Inc. ("AMEX") or the NASDAQ Stock Market, Inc. ("NASDAQ") or there
shall have been established by the NYSE, AMEX or NASDAQ or by the Commission or
by any federal or state agency or by the decision of any court, any general
limitation on prices for such trading or any general restrictions on the
distribution of securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any (i) new material
outbreak of hostilities or (ii) new material other national or international
calamity or crisis, including, but not limited to, an escalation of hostilities
that existed prior to the date of this Agreement or (iii) material adverse
change in the financial markets in the United States, and the effect of any such
event specified in clause (a) or (b) above on the financial markets of the
United States shall be such as to make it impracticable, in the reasonable
judgment of the Representatives, for the Underwriters to enforce contracts for
the sale of the Securities. This Agreement may also be terminated at any time
prior to the Closing Date by the Representatives if, in their reasonable
judgment, the subject matter of any amendment or supplement to the Registration
Statement or the Prospectus (other than an amendment or supplement relating
solely to the activity of any Underwriter or Underwriters) prepared and issued
by the Company after the effectiveness of this Agreement shall have disclosed a
material adverse change in the business, property or financial condition of the
Company that has materially impaired the marketability of the Securities. Any
termination hereof pursuant to this Section 10 shall be without liability of any
party to any other party except as otherwise provided in Sections 6(g) and 9
hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF THIS
-------------
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement
shall inure to the benefit of the Company, the several Underwriters and, with
respect to the provisions of Section 9 hereof, each director, officer and
controlling person referred to in said Section 9, and their respective
successors. Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right, remedy or claim
under or in respect of any provision in this Agreement. The term "successor" as
used herein shall not include any purchaser, as such purchaser, of any of the
Securities from any of the several Underwriters.
12. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or delivered to you at the
address set forth above, or, if to the Company, shall be mailed or delivered to
it at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Treasurer.
If the foregoing is in accordance with your understanding of
our agreement, please indicate your acceptance thereof in the space provided
below for that purpose, whereupon this letter and your acceptance shall
constitute a binding agreement between the Company and the several Underwriters
in accordance with its terms.
Very truly yours,
TXU GAS COMPANY
By
---------------------------------
Accepted and delivered as of
the date first above written
[Representatives of Underwriters]
By:
By:
-----------------------------------
SCHEDULE I
----------
Underwriting Agreement dated:
Representatives:
Designation:
Principal Amount:
Interest Rate:
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
SCHEDULE II
-----------
TXU GAS COMPANY
Principal Amount of
Name Securities
---- -------------------
Total ===================
$
SCHEDULE III
------------
[LETTERHEAD OF XXXXXXX, XXXXXXXX & XXXXXXXXXX, L.L.P.]
[Date]
as Representatives of the Underwriters named in Schedule II
to the Underwriting Agreement, as herein defined
c/o
Ladies and Gentlemen:
We have acted as General Counsel to TXU Gas Company, a Texas
corporation, (the "Company"), in connection with the issuance and sale by the
Company of of its ("Securities") pursuant to the Underwriting
---- -------------
Agreement dated among the Company and you (the "Underwriting
--------------
Agreement").
Terms not otherwise defined herein are used with the meanings
ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, 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 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. The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
3. The Indenture has been duly qualified under the Trust
Indenture Act.
4. The Securities and the Indenture have been duly authorized,
executed and delivered by the Company, the Securities are entitled to the
benefits of the Indenture, and the Securities and the Indenture are legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and of
general principles of equity.
5. The statements made in the Prospectus under the captions
[Insert titles of sections describing the Securities in the Prospectus and
Prospectus Supplement], insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
6. The Company is not an investment company within the meaning of
the Investment Company Act of 1940, as amended.
7. Other than as stated in the Registration Statement and the
Prospectus, there are no material pending legal proceedings to which the Company
is a party or of which property of the Company is the subject which depart from
the ordinary routine litigation incident to the kind of business conducted by
the Company, and to our knowledge no such proceedings are contemplated.
8. The Registration Statement, and the Prospectus at the time it
was filed with the Commission pursuant to Rule 424 under the Securities Act
(except for financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein
and except for that part of the Registration Statement that constitutes
the Forms T-1, as to which we do not express any belief) complied as to form in
all material respects with the Securities Act and the applicable instructions,
rules and regulations of the Commission thereunder; the Incorporated Documents
(except as to the financial statements and schedules and other financial and
statistical data contained therein, as to which we do not express any opinion),
at the time they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the Securities Act and,
to our best knowledge, no proceedings for a stop order with respect thereto are
pending or threatened under Section 8 of the Securities Act.
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.
In the course of the preparation of the information relating to
the Company contained in the Prospectus (including the documents incorporated
therein by reference) we had discussions with certain of its officers and
representatives and certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte & Touche LLP,
the Company's independent certified public accountants who audited certain of
the financial statements contained in documents incorporated by reference in the
Registration Statement and the Prospectus, and with certain of your officers and
employees and your counsel, but we made no independent verification of the
accuracy or completeness of the representations and statements made to us by the
Company or the information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in paragraph 5 above. However, our
examination of the information relating to the Company contained in the
Registration Statement and the Prospectus and our discussions did not disclose
to us anything which gives us reason to believe that (except as to financial
statements and schedules and other financial and statistical data and except as
to that part of the Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) (i) the Registration Statement, as of the
Effective Date, included an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Prospectus at the time it was
filed with the Commission pursuant to Rule 424, included, or on the date hereof
includes an untrue statement of a material fact or on such dates omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
We are members of the 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 even
date herewith of Xxxxxx 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 XXXXXX XXXX & PRIEST LLP]
New York, New York
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
Ladies and Gentlemen:
We have acted as counsel to TXU Gas Company, a Texas
corporation (the "Company"), in connection with the issuance and sale by the
Company of of its ("Securities") pursuant to the Underwriting
---- -------------
Agreement dated among the Company and you (the "Underwriting
--------------
Agreement").
Terms not otherwise defined herein are used with the meanings
ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, 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 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 Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
2. The Indenture has been duly qualified under the Trust
Indenture Act.
3. The Securities and the Indenture have been duly authorized,
executed and delivered by the Company, the Securities are entitled to the
benefits of the Indenture, and the Securities and the Indenture are legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and of
general principles of equity.
4. The statements made in the Prospectus under the captions
[Insert titles of sections describing the Securities in the Prospectus and
Prospectus Supplement], insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
5. The Company is not an investment company within the meaning
of the Investment Company Act of 1940, as amended.
6. The Registration Statement, and the Prospectus at the time
it was filed with the Commission pursuant to Rule 424 under the Securities Act
(except for financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) complied as to form in all material respects
with the Securities Act and the applicable instructions, rules and regulations
of the Commission thereunder; the Incorporated Documents (except as to the
financial statements and schedules and other financial and statistical data
contained therein, as to which we do not express any opinion), at the time they
were filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable instructions, rules
and regulations of the Commission thereunder; and the Registration Statement has
become and is effective under the Securities Act and, to our best knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
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 Prospectus (including the documents incorporated
therein by reference) we had discussions with certain of its officers and
representatives and certain officers and representatives of certain of its
subsidiaries, with other counsel for the Company, with Deloitte & Touche LLP,
the Company's independent certified public accountants who audited certain of
the financial statements contained in documents incorporated by reference in the
Registration Statement and the Prospectus, and with certain of your officers and
employees and your counsel, but we made no independent verification of the
accuracy or completeness of the representations and statements made to us by the
Company or the information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in paragraph 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 and except as
to that part of the Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) (i) the Registration Statement, as of the
Effective Date, included an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Prospectus at the time it was
filed with the Commission pursuant to Rule 424, included, or on the date hereof
includes an untrue statement of a material fact or on such dates omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold ourselves
out as experts in the laws of the State of Texas. As to all matters of Texas
law, we have, with your consent, relied upon the opinion of even date herewith
of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P., Dallas, Texas, General Counsel for
the Company. We believe that you and we are justified in relying on such
opinion.
Very truly yours,
XXXXXX XXXX & PRIEST LLP
SCHEDULE V
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement as defined herein
c/o
Ladies and Gentlemen:
We have acted as counsel to you and the several Underwriters
in connection with the issuance and sale by the TXU Gas Company, a Texas
corporation (the "Company"), of of its ("Securities")
---- -------------
pursuant to the Underwriting Agreement dated among the Company
--------------
and you (the "Underwriting Agreement").
Terms not otherwise defined herein are used with the meanings
ascribed to them in the Underwriting Agreement.
We are members of the New York Bar and do not hold ourselves
out as experts on the laws of the State of Texas. We have, with your consent,
relied upon an opinion of even date herewith addressed to you by Xxxxxxx,
Xxxxxxxx & Xxxxxxxxxx, L.L.P., Dallas, Texas, General Counsel for the Company,
as to the matters covered in such opinion relating to Texas law. We have
reviewed such opinion and believe that it is satisfactory and that you and we
are justified in relying thereon.
We have, in addition, examined the documents described in the
list of closing papers as having been delivered to you at the closing and such
other documents and satisfied ourselves as to such other matters as we have
deemed necessary in order to enable us to express this opinion. As to various
questions of fact material to this opinion, we have relied upon representations
of the Company and statements in the Registration Statement hereinafter
mentioned. In such examination we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us and the
genuineness and conformity to original documents of documents submitted to us
as certified or photostatic copies.
Based upon the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
2. The Securities and the Indenture have been duly authorized,
executed and delivered by the Company, the Securities are entitled to the
benefits of the Indenture, and the Securities and the Indenture are legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership, moratorium and
other laws affecting the rights and remedies of creditors generally and of
general principles of equity.
3. The statements made in the Prospectus under the captions
[Insert titles of sections describing the Securities in the Prospectus and
Prospectus Supplement], insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
4. 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.
5. The Registration Statement, and the Prospectus at the time
it was filed with the Commission pursuant to Rule 424 under the Securities Act
(except for financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the Forms T-1, as to
which we do not express any belief) complied as to form in all material respects
with the Securities Act and the applicable instructions, rules and regulations
of the Commission thereunder.
In passing upon the form of the Registration Statement and the
form of the Prospectus, we necessarily assume the correctness and completeness
of the statements made by the Company and the information included in the
Registration Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth in paragraph 3
above. In the course of the preparation by the Company of the Registration
Statement and the Prospectus, we have had discussions with certain of the
Company's officers and representatives, and representatives of certain of its
subsidiaries, with counsel for the Company, with Deloitte & Touche LLP, the
Company's independent public accountants who audited certain of the financial
statements incorporated by reference in the Registration Statement and the
Prospectus, and with certain of your representatives. Our examination of the
Registration Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that at the Effective
Date the Registration Statement contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus, at the
time it was filed with the Commission pursuant to Rule 424, or at the date
hereof, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. We do not express any opinion or belief as to the financial
statements and schedules or other financial or statistical data contained or
incorporated by reference in the Registration Statement or Prospectus or as to
that part of the Registration Statement that constitutes the Forms T-1.
This opinion is given to you solely for the use of the several
Underwriters in connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon by any other person or for
any other purpose.
Very truly yours,
