Exhibit 1
TXU EUROPE CAPITAL I
___% Trust Originated Preferred Securities
UNDERWRITING AGREEMENT
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as Representatives of the Underwriters
named in Schedule II hereto (the "Representatives")
c/o
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Ladies and Gentlemen:
1. Introduction. TXU Europe Limited, a private limited company
incorporated in England and Wales (the "Company"), TXU Eastern Funding Company,
a private unlimited company incorporated under the laws of England and Wales
("TXU Eastern Funding"), TXU Europe Funding I, L.P., a limited partnership
formed under the Delaware Revised Uniform Limited Partnership Act (the
"Partnership") and TXU Europe Capital I, a statutory business trust formed under
the Delaware Business Trust Act (the "Trust," and hereinafter, together with the
Company, TXU Eastern Funding and the Partnership, the "Offerors"), propose for
the Trust to issue and sell severally to the underwriters named in Schedule II
hereto (the "Underwriters") the Trust's ___% Trust Originated Preferred
Securities of the series designation, with the terms and in the liquidation
preference amount specified in Schedule I hereto (the "TOPrS").
2. Description of TOPrS. Each of the TOPrS represents an undivided
beneficial interest in the assets of the Trust. The TOPrS will be issued
pursuant to an Amended and Restated Trust Agreement, to be dated as of
____________, among The Bank of New York, as Property Trustee, The Bank of New
York (Delaware), as Delaware Trustee, certain employees of TXU Services Inc., as
Administrative Trustees, TXU Business Services Company, as depositor ("TXU
Services"), and the several Holders as defined therein in substantially the form
heretofore delivered to you as the Representatives, said agreement being
hereinafter referred to as the "Trust Agreement". The TOPrS will be guaranteed
by the Company, as and to the extent set forth in the Prospectus (as defined
below) and the Trust Preferred Securities Guarantee Agreement dated as of ______
between The Bank of New York, as trustee, and the Company (the "Trust
Guarantee"). The Trust will use the proceeds from the sale of the TOPrS to
purchase ___% Preferred Partnership Securities in the Partnership (the
"Preferred Partnership Securities").
The Preferred Partnership Securities will be issued pursuant to an
Amended and Restated Agreement of Limited Partnership, dated as of _________,
among the Company, as general partner of the Partnership (the "General
Partner"), the Trust, as initial limited partner, and such other persons who
become limited partners thereto (the "Partnership Agreement"). The Partnership
Preferred Securities will be guaranteed by the Company, as and to the extent set
forth in the Prospectus and the Preferred Partnership Securities Guarantee
Agreement dated as of ______ between The Bank of New York, as trustee, and the
Company (the "Partnership Guarantee"). The Partnership will use most of the
proceeds from the sale of the Preferred Partnership Securities to the Trust,
together with a capital contribution by the Company, to purchase beneficial
interests in junior subordinated debentures of TXU Eastern Funding (the "TXU
Funding Debentures") and the debentures of one or more other eligible
subsidiaries of the Company (the "Other Debentures" and together with the TXU
Funding Debentures, the "Debentures").
The TXU Funding Debentures shall be issued pursuant to an Indenture
among the The Bank of New York, as trustee, the Company and TXU Funding (the
"TXU Funding Indenture"). The Other Debentures shall be issued pursuant to one
or more indentures among The Bank of New York, as trustee, the Company and each
subsidiary issuing such debentures (the "Other Indentures" and, together with
the TXU Funding Indenture, the "Indentures"). The TXU Funding Debentures will be
guaranteed by the Company, as and to the extent set forth in the Prospectus and
the TXU Funding Indenture (the "TXU Funding Debenture Guarantee") The Other
Debentures will be guaranteed by the Company, as and to the extent set forth in
the Prospectus and the Other Indentures (the "Other Debenture Guarantees" and
together with the TXU Funding Guarantee, the "Debenture Guarantees"). The
Debenture Guarantees, together with the Trust Guarantee and the Partnership
Guarantee, are referred to herein as the "Guarantees").
The TOPrS and the Trust Guarantee, together with the Partnership
Preferred Securities, the Partnership Guarantee, the Debentures and the
Debenture Guarantees are referred to herein as the "Offered Securities".
3. Representations and Warranties of the Offerors. The Offerors
represent and warrant to the several Underwriters that:
(a) The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1,
including a prospectus, on _________(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 $______
aggregate amount of Offered Securities. Such registration statement was
declared effective by the Commission on __________. References herein to
the term "Registration Statement" as of any date shall be deemed to refer
to Registration Statement Nos. 333-______, 333-______-01, 333-______-02 and
333-______-03, as amended or supplemented to such date; 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 the
Registration Statement. References herein to the term "Effective Date"
shall be deemed to refer to the later of the time and date the Registration
Statement or any post-effective amendment to the Registration Statement 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.
(b) On the Effective Date, the Registration Statement and the
Prospectus fully complied and at the Closing Date, as hereinafter defined,
the Registration Statement, the Prospectus, the Trust Agreement, the TXU
Funding Indenture, the Trust Guarantee, the Partnership Guarantee and the
Other Debenture Guarantees will comply as to form 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; 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 Offerors 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 execution and delivery of this Agreement by each of the
Offerors, and the consummation of the transactions herein contemplated and
the fulfillment of the terms hereof by each of the Offerors will not result
in a material breach of any of the terms or provisions of, or constitute a
material default under, any indenture, mortgage, deed of trust, charter,
by-laws or other organizational documents or any other agreement or
instrument to which any of the Offerors is now a party and which is
material to the respective Offeror and its subsidiaries, taken as a whole.
(d) Each of the Offerors and each direct and indirect material
subsidiary of the Company has been created, formed or incorporated, as the
case may be, and is validly existing and, where applicable, in good
standing under the laws of the jurisdiction of its creation, formation or
incorporation, as the case may be, has the power and authority to own,
lease and operate its properties and to conduct its business as currently
conducted and as set forth in or contemplated by the Prospectus, and is
qualified to transact business and is in good standing in each jurisdiction
in which such qualification and good standing is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except, with respect to each direct and indirect material subsidiary of the
Company other than the Offerors, where the failure to so qualify or be in
good standing would not have a material adverse effect on the business,
property or financial condition of the Company and its subsidiaries,
considered as a whole. The Trust has the trust power and authority to
issue, and perform its obligations under, the TOPrS and purchase the
Partnership Preferred Securities, as described in the Prospectus. The Trust
is not a party to or otherwise bound by any material agreements other than
those described in the Prospectus; [and the Trust is and will be treated as
a consolidated subsidiary of the Company pursuant to generally accepted
accounting principles]. The Partnership has the partnership power and
authority to issue and perform its obligations under the Partnership
Preferred Securities and to lend the proceeds thereof to certain
subsidiaries of the Company, as described in the Prospectus. The
Partnership is not a party to or otherwise bound by any material agreements
other than those described in the Registration Statement and the
Prospectus[; and the Partnership is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles].
(e) None of the Company, TXU Eastern Funding, the Partnership or the
Trust is, or after giving effect to the issuance and sale of the Offered
Securities and the application of the proceeds thereof as described in the
Prospectus will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended.
(f) The Company and each of its material subsidiaries (i) is in
compliance with any and all applicable foreign, national, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) is in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(g) The Company and each of its material subsidiaries has good title
to all real property and other properties owned by it (other than
properties which are not material to the financial condition or the conduct
of the business of the Company and its subsidiaries, taken as a whole), in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially adversely affect the value of such property and do
not materially interfere with the use made and proposed to be made of such
property; and all of the leases and subleases material to the business of
the Company and its subsidiaries, taken as a whole, and under which the
Company or any of its material subsidiaries holds properties described in
the Prospectus are in full force and effect, and the Company has no notice
of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any material subsidiary of the Company
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or any material subsidiary of the
Company to the continued possession of the leased or subleased properties
under any such lease or sublease.
(h) The Company and each of its material subsidiaries has filed all
national, state, local and foreign tax returns which have been required to
be filed and has paid all taxes shown thereon and all assessments received
by them or any of them to the extent that such taxes have become due and
are not being contested in good faith, except where the failure to have
made such filings or to have paid such taxes and assessments would not have
a material adverse effect on the Company and its subsidiaries, taken as a
whole; and there is no tax deficiency which has been asserted or, to the
knowledge of the Company, threatened against the Company or any of its
material subsidiaries which would be expected to have a material adverse
effect on, as the case may be, the Company and its subsidiaries, taken as a
whole.
(i) The Company and each of its material subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations (collectively "Authorizations") from,
all national, state, local and other governmental authorities (including
foreign regulatory agencies), all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to own or lease,
as the case may be, and to operate its properties and to carry on its
business as conducted as of the date hereof, except where the failure to
own, possess or obtain such Authorizations or to have made such
declarations and filings would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; to the knowledge of the
Company and its material subsidiaries, each Authorization is in full force
and effect, except where the failure of such Authorization to be in full
force and effect would not be reasonably expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole; none
of the Company or its material subsidiaries has received any actual notice
of any proceeding relating to revocation or modification of any such
Authorization, except as described in the Prospectus and except as would
not, if the subject of an unfavorable decision, be reasonably expected to
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(j) No stamp or other issuance or transfer taxes or duties are payable
by or on behalf of the Underwriters in the United Kingdom or the United
States or any political subdivision or taxing authority thereof or therein
on (i) the authorization, issue or delivery of the Offered Securities or
(ii) assuming all of the following transactions take place outside the
United Kingdom, the purchase by the Underwriters of the TOPrS, the sale and
delivery by the Underwriters of the TOPrS, the execution and delivery of
this Agreement, the Indentures, the Trust Agreement, the Partnership
Agreement, the Trust Guarantee and the Partnership Guarantee or the
consummation of the transactions contemplated by this Agreement.
(k) No exchange control authorization or any other authorization,
approval, consent or license of any governmental authority or agency of or
in the United Kingdom is required for the payment by the Offerors of any
amounts in United States dollars pursuant to the terms of the Offered
Securities.
(l) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Offerors of their respective obligations hereunder, in connection with the
offering, issuance or sale of the Offered Securities or the consummation of
the transactions contemplated by this Agreement.
(m) The Offerors and their respective obligations under this
Agreement, the Offered Securities, the Trust Agreement, the Partnership
Agreement and the Indentures are subject to civil and commercial law and to
suit and none of the Offerors nor any of their respective properties,
assets or revenues has, in the United Kingdom or any political subdivision
thereof or in the United States or any political subdivision thereof, any
right of immunity from any legal action, suit or proceeding, from the
giving of any relief in any such legal action, suit or proceeding, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, attachment upon or prior to judgment, or attachment in aid of
execution of judgment, or from execution of a judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement
of a judgment, in any such jurisdiction, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection
with the issuance of the Offered Securities; and, to the extent that any of
the Offerors or any of their respective properties, assets or revenues may
have or may hereafter become entitled to any such right of immunity in any
jurisdiction, each of the Offerors has effectively waived such right and
consented to such relief and enforcement pursuant to Section ___ of this
Agreement; nothing in this clause (m) shall be deemed to waive any defense
(other than any such immunity) available to any Offeror.
(n) The Trust Agreement has been duly qualified under the Trust
Indenture Act.
(o) The TOPrS have been duly authorized by the Trust Agreement and,
when issued and sold in accordance with the Trust Agreement, will be fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust (subject to the limitations set forth in this paragraph below); the
issuance of the TOPrS is not subject to preemptive or other similar rights;
and holders of TOPrS will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware
(provided, that, the holders of TOPrS may be obligated, pursuant to the
Trust Agreement, to (i) provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers or
exchanges of TOPrS certificates and the issuance of replacement TOPrS
certificates, and (ii) provide security or indemnity in connection with
requests of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement).
(p) Each of the Administrative Trustees of the Trust is an employee of
TXU Services; at the Closing Date, the Trust Agreement will have been duly
executed and delivered by the Administrative Trustees and, when executed
and delivered by TXU Services, the Property Trustee and the Delaware
Trustee, will be a valid and binding obligation of each Administrative
Trustee enforceable against such Administrative Trustee in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general principles of
equity and the effect of applicable public policy on the enforceability of
provisions relating to contribution and indemnification.
(q) The Partnership Agreement has been duly authorized by the General
Partner and, at the Closing Date, will have been duly executed and
delivered by the General Partner and will be a legal, valid and binding
obligation of the General Partner enforceable against the General Partner
in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent conveyance, receivership, moratorium
and other laws affecting the rights and remedies of creditors generally and
of general principles of equity and the effect of applicable public policy
on the enforceability of provisions relating to contribution and
indemnification.
(r) The Partnership Preferred Securities have been duly authorized by
the Partnership Agreement and, when issued and sold in accordance with the
Partnership Agreement, will be fully paid and nonassessable (subject to the
limitations set forth in this paragraph below); the issuance of the
Partnership Preferred Securities is not subject to preemptive or other
similar rights; and assuming that the holders of Partnership Preferred
Securities in their capacities as such do not participate in the control of
the business of the Company, the holders of Partnership Preferred
Securities, in their capacities as such, will have no liability in excess
of their obligations to make payments provided for in the Partnership
Agreement and their share of the Partnership's assets and undistributed
profits (subject to the obligation of a holder of Partnership Preferred
Securities to repay any funds distributed to it).
(s) The TXU Funding Indenture has been, and at the Closing Date each
of the Other Indentures will have been, duly authorized, and at the Closing
Date each of the Indentures will have been duly executed and delivered, by
the applicable subsidiary of the Company and, when duly executed and
delivered by the respective trustee thereof, will constitute a valid and
binding agreement of such subsidiary enforceable against such subsidiary in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, fraudulent conveyance, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and of
general principles of equity and the effect of applicable public policy on
the enforceability of provisions relating to contribution and
indemnification. The TXU Funding Debentures have been, and at the Closing
Date the Other Debentures will have been, duly authorized for issuance and
sale to the Partnership and, at the Closing Date, the Debentures will have
been duly executed by the applicable subsidiary of the Company and, when
authenticated, issued and delivered in the manner provided in the
applicable Indenture and delivered against payment of the purchase price
therefor as contemplated by this Agreement, will constitute valid and
legally binding obligations of such subsidiary enforceable against such
subsidiary in accordance with their 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 and the effect
of applicable public policy on the enforceability of provisions relating to
contribution and indemnification. The TXU Funding Indenture has been, and
at the Closing Date the Other Debenture Guarantees will be, duly qualified
under the Trust indenture Act.
(t) Each of the Trust Guarantee and the Partnership Guarantee has been
duly authorized and, at the Closing Date, will have been duly executed and
delivered by the Company and, when duly executed and delivered by the
trustee under the Trust Guarantee or the Partnership Guarantee, as the case
may be, will constitute a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, fraudulent
conveyance, receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general principles of equity and
the effect of applicable public policy on the enforceability of provisions
relating to contribution and indemnification. each of the Trust Guarantee
and the Partnership Guarantee has been duly qualified under the Trust
indenture Act.
(u) This Agreement has been duly authorized, executed and delivered by
each of the Offerors, each of which has the necessary power and authority
to execute and deliver and perform its obligations under this Agreement
(v) The TOPrS, the Partnership Preferred Securities, the Trust
Guarantee and the Partnership Guarantee will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus.
(w) Other than as set forth or contemplated in the Registration
Statement and the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its material subsidiaries is a party or to
which any property of the Company or any of its material subsidiaries is
the subject that is reasonably expected to have a material adverse effect
on the Company and its subsidiaries taken as a whole.
The Offerors acknowledge that the Underwriters, and, for purposes of
the opinions to be delivered to the Underwriters pursuant to Section __ hereof,
each counsel to any of the Offerors and counsel to the Underwriters, will rely
upon the accuracy and truth of the foregoing representations. The Offerors
hereby consent to such reliance.
3A. Representations and Warranties of the Underwriters.
[TO BE ADDED]
4. Purchase and Sale.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
the Trust shall sell to each of the Underwriters, and each Underwriter
shall purchase from the Trust, at the time and place herein specified,
severally and not jointly, the respective number of TOPrS set forth
opposite the name of such Underwriter in Schedule II attached hereto,
at the purchase price or prices set forth in Schedule I hereto.
(b) The Company shall pay to the Underwriters a commission equal
to $_____ per TOPrS.
5. Time and Place of Closing. Delivery of the TOPrS against payment
of the aggregate purchase price therefor by wire transfer in federal funds shall
be made at the office of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New York Time, on ___________, or at such other
place, time and date as shall be agreed upon in writing by the Company and the
Representatives, or established in accordance with the following paragraph. The
hour and date of such delivery and payment are herein called the "Closing Date".
The TOPrS shall be delivered to The Depositary Trust Company or to The Bank of
New York, as custodian for The Depositary Trust Company, in fully registered
global form registered in the name of Cede & Co. for the respective accounts
specified by the Representatives not later than the close of business on the
business day preceding the Closing Date. The Trust agrees to make the TOPrS
available to the Representatives for checking purposes not later than 10:00
A.M., New York Time, on the last business day preceding the Closing Date at the
office of ▇▇▇▇▇▇ ▇▇▇▇ & Priest, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
or at such other place as the Trust may specify.
If any Underwriter shall fail or refuse (otherwise than for some
reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder) to purchase and pay
for the liquidation preference amount of the TOPrS that such Underwriter has
agreed to purchase and pay for hereunder, the Company shall immediately give
notice to the other Underwriters of the default of such Underwriter, and the
other Underwriters shall have the right within 24 hours after the receipt of
such notice to determine to purchase, or to procure one or more others, who are
members of the National Association of Securities Dealers, Inc. ("NASD") (or, if
not members of the NASD, who are not eligible for membership in the NASD and who
agree (i) to make no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with the NASD's Conduct Rules) and satisfactory to the
Company, to purchase, upon the terms herein set forth, the liquidation
preference amount of the TOPrS that the defaulting Underwriter had agreed to
purchase. If any non-defaulting Underwriter or Underwriters shall determine to
exercise such right, such Underwriter or Underwriters shall give written notice
to the Company of the determination in that regard within 24 hours after receipt
of notice of any such default, and thereupon the Closing Date shall be postponed
for such period, not exceeding three business days, as the Company shall
determine. If in the event of such a default no non-defaulting Underwriter shall
give such notice, then this Agreement may be terminated by the Company, upon
like notice given to the non-defaulting Underwriters, within a further period of
24 hours. If in such case the Company shall not elect to terminate this
Agreement it shall have the right, irrespective of such default:
(a) to require each non-defaulting Underwriter to purchase and
pay for the respective liquidation preference amount of the TOPrS that
it had agreed to purchase hereunder as hereinabove provided and, in
addition, the liquidation preference amount of the TOPrS that the
defaulting Underwriter shall have so failed to purchase up to a
liquidation preference amount thereof equal to [one-ninth (1/9)] of
the liquidation preference amount of TOPrS that such non-defaulting
Underwriter has otherwise agreed to purchase hereunder, and/or
(b) to procure one or more persons, reasonably acceptable to the
Representatives, who are members of the NASD (or, if not members of
the NASD, who are not eligible for membership in the NASD and who
agree (i) to make no sales within the United States, its territories
or its possessions or to persons who are citizens thereof or residents
therein and (ii) in making sales to comply with the NASD's Conduct
Rules), to purchase, upon the terms herein set forth, either all or a
part of the liquidation preference amount of the TOPrS 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:
(a) It will promptly deliver to each of the 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 exhibits, and of all amendments thereto.
(b) It will deliver to you, as soon as practicable after the date
hereof, as many copies of the Prospectus as of such date as you may
reasonably request.
(c) It will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 as soon as practicable and advise you of the
issuance of any stop order under the Securities Act with respect to
the Registration Statement or the institution of any proceedings
therefor of which the Offerors shall have received notice. The Company
will use its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not exceeding nine months)
after the Prospectus has been filed with the Commission pursuant to
Rule 424 as in the opinion of Counsel for the Underwriters a
prospectus covering the TOPrS is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event relating
to or affecting the Company, TXU Eastern Funding, the Partnership or
the Trust or of which the Company shall be advised in writing by you
shall occur that in the Company's reasonable opinion after
consultation with Counsel for the Underwriters should be set forth in
a supplement to, or an amendment of, the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances when
it is delivered to a purchaser, the Company will, at its expense,
amend or supplement the Prospectus by either (i) preparing and
furnishing to you at the Company's expense a reasonable number of
copies of a supplement or supplements or an amendment or amendments to
the Prospectus or (ii) making an appropriate filing pursuant to
Section 13 of the Exchange Act, which will supplement or amend the
Prospectus so that, as supplemented or amended, it will not contain
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser,
not misleading; provided that should such event relate solely to the
activities of any of the Underwriters, then the Underwriters shall
assume the expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver a
prospectus after the expiration of nine months from the date the
Prospectus is filed with the Commission pursuant to Rule 424, the
Company, upon such Underwriter's request, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity
of a supplemental prospectus or supplements to the Prospectus
complying with Section 10(a) of the Securities Act.
(e) It will make generally available to its security holders and
the holders of the TOPrS, as soon as practicable, an earnings
statement of the Company (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 Offered Securities
for offer and sale under the blue-sky laws of such jurisdictions as
you may designate, provided that the none of the Offerors shall be
required to qualify to do business in any jurisdiction, to qualify as
a dealer in securities, to file any consents to service of process
under the laws of any jurisdiction, or to meet any other requirements
deemed by the Offerors to be unduly burdensome.
(g) It will, except as herein provided, pay all expenses and
taxes (except transfer taxes) in connection with (i) the preparation
and filing by it of the Registration Statement, (ii) the issuance and
delivery of the TOPrS as provided in Section 5 hereof and the issuance
and delivery of the other Offered Securities in connection therewith,
(iii) the qualification of the Offered Securities under blue-sky laws
(including counsel fees not to exceed $7,500), and (iv) the printing
and delivery to the Underwriters of reasonable quantities of the
Registration Statement and, except as provided in Section 6(d) hereof,
of the Prospectus. The Company shall not, however, be required to pay
any amount for any expenses of yours or any of the Underwriters,
except that, if this Agreement shall be terminated in accordance with
the provisions of Section 7, 8 or 10 hereof, the Company will
reimburse you for the fees and disbursements of Counsel for the
Underwriters, whose fees and disbursements the Underwriters agree to
pay in any other event, and will reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount not
exceeding $5,000, incurred in contemplation of the performance of this
Agreement. The Company shall not in any event be liable to any of the
several Underwriters for damages on account of loss of anticipated
profits.
(h) During the period from the date of this Agreement to the
Closing Date, neither the Company, TXU Eastern Funding, the
Partnership or the Trust will, without the prior written consent of
the Representatives, directly or indirectly, publicly issue, sell,
offer or contract to sell, in the market in which the TOPrS are being
offered and sold, any securities of the Company or any of its
subsidiaries that are of the same class as any of the Offered
Securities.
7. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the TOPrS shall be subject to the accuracy
of the representations and warranties made herein on the part of each of the
Offerors, to the performance by each of the Offerors of its obligations to be
performed hereunder prior to the Closing Date, and to the following conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 prior to 5:30 P.M., New York Time, on the second
business day after the date of this Agreement, or such other time and
date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that
purpose shall be pending before, or threatened by, the Commission on
the Closing Date; and you shall have received a certificate, dated the
Closing Date and signed by an officer of the Company, to the effect
that (A) 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 and (B) the representations and
warranties of the Offerors in Section 3 hereof are true and correct
with the same force and effect as if made on the Closing Date.
(c) On the Closing Date, you shall have received from ▇.▇. Lean,
General Counsel for the Company, TXU Eastern Funding, and the Material
Subsidiaries of the Company, ▇▇▇▇▇▇ ▇▇▇▇, English tax counsel for the
Offerors, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel for the
Company, the Partnership and the Trust, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇, L.L.P., United States counsel for the Offerors, ▇▇▇▇▇▇
▇▇▇▇ & Priest LLP, special United States counsel for the Offerors, and
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Counsel for the Underwriters,
opinions in substantially the form and substance prescribed in
Schedules III, IV, V, VI, VII and VIII 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 TOPrS 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
PricewaterhouseCoopers, independent auditors, a letter in form and
substance reasonably satisfactory to Counsel to the Underwriters,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Prospectus; provided that such letter shall use a "cut-off date"
not earlier than the date hereof.]
(e) [On and as of the Closing Date, you shall have received from
Deloitte & Touche LLP a letter in form and substance satisfactory to
Counsel to the Underwriters, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Prospectus; provided that such
letter shall use a "cut-off date" not earlier than the date hereof.]
(f) 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 Trust, the Partnership, TXU Eastern Funding
or 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
Trust, the Partnership, TXU Eastern Funding or the Company, 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.
(g) All legal proceedings to be taken in connection with the
issuance and sale of Offered Securities as described in the Prospectus
shall have been satisfactory in form and substance to Counsel for the
Underwriters.
(h) At the Closing Date, (i) the TOPrS shall be rated at least
_____________ by ▇▇▇▇▇'▇ Investor Services ("Moody's"), and Standard &
Poor's Corporation ("S&P"), respectively, and the Company shall have
delivered to you a letter from each such rating agency, or other
evidence satisfactory to you, confirming that the TOPrS have such
ratings, and (ii) neither Moody's nor S&P shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the TOPrS, any other securities
of the Company or a special purpose subsidiary of the Company which
are of the same class as the TOPrS or the financial condition of the
Company.
(i) The TOPrS shall have been approved for listing on the New
York Stock Exchange and the Luxembourg Stock Exchange.
In case any of the conditions specified above in this Section 7 shall
not have been fulfilled as of the Closing Date, this Agreement may be terminated
by the Representatives upon notice thereof to the Company. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 6(g) and 9 hereof.
8. Conditions of Offerors' Obligations. The obligation of the
Offerors to deliver the TOPrS 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 as of the Closing Date, 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.
(a) The Offerors shall jointly and severally indemnify, defend
and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the Securities Act
from and against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject
under the Securities Act or any other statute or common law and shall
reimburse each such Underwriter and controlling person for any legal
or other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in
the light of the circumstances under which they were made not
misleading; provided, however, that the indemnity agreement contained
in this Section 9 shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon, any
such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made
in reliance upon and in conformity with information furnished in
writing to any of the Offerors 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 TOPrS to any person if a copy of
the Prospectus shall not have been given or sent to such person by or
on behalf of such Underwriter with or prior to the written
confirmation of the sale involved unless the alleged omission or
alleged untrue statement was not corrected in the Prospectus at the
time of such written confirmation. The indemnity agreement of the
Offerors contained in this Section 9 and the representations and
warranties of the Offerors contained in Section 3 hereof shall remain
operative and in full force and effect regardless of any termination
of this Agreement or of any investigation made by or on behalf of any
Underwriter or any such controlling person, and shall survive the
delivery of the TOPrS.
(b) Each Underwriter shall indemnify, defend and hold harmless
each of the Offerors, its officers and directors, and each person who
controls any such Offeror within the meaning of Section 15 of the
Securities Act, from and against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or any other statute or common
law and shall reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with investigating any such
losses, claims, damages or liabilities or in connection with defending
any actions, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon
and in conformity with information furnished in writing to the
Offerors by or on behalf of such Underwriter, through the
Representatives or Counsel for the Underwriters, for use in connection
with the preparation of the Registration Statement or the Prospectus
or any amendment or supplement to either thereof. Each Underwriter
hereby furnishes to the Offerors in writing expressly for use in the
Prospectus [(i) the statements on the cover page of the Prospectus
relating to delivery of the TOPrS, (ii) the statements in the
Prospectus relating to market making for the TOPrS, and (iii) the list
of underwriters and the number of TOPrS to be purchased by each of
them, statements relating to the offering of the TOPrS, statements
relating to market making for the TOPrS, and statements relating to
stabilization and over allotment by the Underwriters in the
"Underwriting" section of 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 any
Offeror, its directors, officers, partners or trustees, any such
Underwriter, or any such controlling person, and shall survive the
delivery of the TOPrS.
(c) The Company, TXU Eastern Funding, the Partnership, the Trust
and the several Underwriters each shall, upon the receipt of notice of
the commencement of any action against it or any person controlling it
as aforesaid, in respect of which indemnity may be sought on account
of any indemnity agreement contained herein, promptly give written
notice of the commencement thereof to the party or parties against
whom indemnity shall be sought hereunder, but the 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 indemnified party shall have reasonably concluded that
there may be a conflict of interest involved in the representation by
a single counsel of both the indemnifying party and the indemnified
party, the indemnified party or parties shall have the right to select
separate counsel, satisfactory to the indemnifying party, whose fees
and expenses shall be paid by such indemnifying party (it being
understood, however, that the indemnifying party shall not be liable
for the fees and expenses of more than one separate counsel (in
addition to local counsel) representing the indemnified parties who
are parties to such action). Each of the Offerors and the Underwriters
agrees that without the other parties' 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 subparagraph (a) or
(b) above shall be unenforceable under applicable law by an
indemnified party, each indemnifying party agrees to contribute to
such indemnified party with respect to any and all losses, claims,
damages, liabilities and expenses for which each such indemnification
provided for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect (i) the relative
fault of each indemnifying party on the one hand and the indemnified
party on the other in connection with the statements or omissions that
have resulted in such losses, claims, damages, liabilities and
expenses, (ii) the relative benefits received by the Offerors on the
one hand and the Underwriters on the other hand from the offering of
the TOPrS pursuant to this Agreement, and (iii) any other relevant
equitable considerations; provided, however, that no indemnified party
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such indemnifying
party or the indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and each of the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subparagraph (d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation 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 TOPrS
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 TOPrS 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 general suspension of
trading in securities on The New York Stock Exchange, Inc. ("NYSE"), the
American Stock Exchange, Inc. ("AMEX"), the NASDAQ Stock Market, Inc. ("NASDAQ")
or the London Stock Exchange ("LSE")or there shall have been established by the
NYSE, AMEX, NASDAQ or LSE or by the Commission or by any government or
governmental agency in the United States or the United Kingdom 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, United States or United Kingdom 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 or the United Kingdom, and the effect of any such event
specified in clause (a) or (b) above on the financial markets of the United
States or the United Kingdom 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 TOPrS. 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 any Offeror after the effectiveness of this Agreement shall have
disclosed a material adverse change in the business, property or financial
condition of the Trust, the Partnership, TXU Eastern Funding or the Company and
its subsidiaries, considered as a whole, whether or not in the ordinary course
of business, that has materially impaired the marketability of the TOPrS. 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 Offerors, 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 TOPrS from any of the
several Underwriters.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process. Each of the Offerors irrevocably submits to the non-exclusive
jurisdiction of any federal or state court in the City, County and State of New
York, United States of America, in any legal suit, action or proceeding based on
or arising under this agreement and agrees that all claims in respect of such
suit or proceeding may be determined in any such court. Each of the Offerors
irrevocably waives the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such legal suit, action
or proceeding. To the extent permitted by law, each of the Offerors hereby
waives any objection to the enforcement by any competent court in the United
Kingdom of, and to the relitigation before any competent court in the United
Kingdom in connection with, any judgment validly obtained in any such court in
New York on the basis of any such legal suit, action or proceeding. Each of the
Offerors have appointed ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP (the "Process Agent") as its
authorized agent upon whom process may be served in any such legal suit, action
or proceeding. Such appointment shall be irrevocable. The Process Agent has
agreed to act as said agent for service of process and each of the Offerors
agrees to take any and all action including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Each of the Offerors further agrees that service
of process upon the Process Agent and written notice of said service to each of
the Offerors shall be deemed in every respect effective service of process upon
each of the Offerors in any such legal suit, action or proceeding. Nothing
herein shall affect the right of any Underwriter or any person controlling any
Underwriter to serve process in any other manner permitted by law. The
provisions of this Section 12 shall remain operative and in full force and
effect regardless of any termination of this Agreement, in whole or in part.
13. Waiver of Immunities. To the extent that the Offerors or any of
their respective properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any thereof, from set-off or counterclaim, from the
jurisdiction of any court, from service or process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
the Offered Securities, Trust Agreement, the Partnership Agreement, any
Indenture or this Agreement, each of the Offerors hereby irrevocably and
unconditionally waives and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement. Nothing in this Section 13 shall be
deemed to waive any defense (other than any such immunity) available to any
Offeror. The provisions of this Section 13 shall remain operative and in full
force and effect regardless of any termination of this Agreement, in whole or in
part.
14. Foreign Taxes. (a) All payments by the any Offeror to the
Underwriters hereunder shall be made free and clear of, and without withholding
or deduction for or on account of, any present or future income, stamp, or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
jurisdiction in which the Company is managed or has a place of business or in
which any Offeror has a branch or office from which payment is made or deemed to
be made (each, a "Taxing Jurisdiction"), unless such withholding or deduction is
required by law. In the event of any such withholding or deduction ("Foreign
Taxes"), the Offerors shall pay to the Underwriters such additional amount as
shall be necessary in order that the amount received by such Underwriters after
withholding or deduction shall equal the amount that would otherwise have been
due to such Underwriter in the absence of such withholding or deduction, except
that no such amounts shall be payable under this Section 14 for:
(i) any such tax imposed by reason of any Underwriter having some
connection with the relevant Taxing Jurisdiction (including being
a citizen or resident or national of, or carrying on a business
or maintaining a permanent establishment in, such Taxing
Jurisdiction) other than its participation as an Underwriter
hereunder; and
(ii) any income or franchise tax on the overall net income of any
Underwriter imposed by the United States or by the State of New
York or any political subdivision of the United States or of the
State of New York.
(b) In the event any Underwriter obtains any actual payment of refund,
credit, allowance, remission or other deduction of, against or from income or
taxable income otherwise determined or taxes otherwise payable to which it may
be entitled from the relevant Taxing Jurisdiction in respect of any Foreign
Taxes paid on the Underwriter's behalf by the Company or for which the
Underwriter has received reimbursement from the Company, the Underwriter shall,
to the extent it can do so without prejudice to the retention of the amount so
realized (after taking into account any net additional taxes paid in connection
with the realization thereof), notify the Company and pay to the Offerors (to
the extent that the same shall not already have been taken into account in
computing any amount previously paid by the Offerors or the amount of any
reimbursement previously received by the Underwriter) promptly after the
realization thereof an amount which is equal to the net amount thereof (or, in
the event of a deduction from taxable income, the tax benefit generated thereby,
if less than such deduction) plus any additional tax savings resulting from the
payment pursuant to this sentence, provided that the aggregate of all such
payments shall not exceed the aggregate of all amounts paid by the Offerors in
respect of such Foreign Taxes.
The provisions of this Section 14 shall remain operative and in full
force and effect regardless of any termination of this Agreement, in whole or in
part.
15. Obligation Currency. The obligation of the parties to make
payments hereunder is in U.S. dollars (the "Obligation Currency") and such
obligation shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in any currency other than the Obligation
Currency or any other realization in such other currency, whether as proceeds of
set-off, security, guarantee, distributions, or otherwise, except to the extent
to which such tender, recovery or realization shall result in the receipt by the
party which is to receive such payment of the full amount of the Obligation
Currency expressed to be payable hereunder. The party liable to make such
payment agrees to indemnify the party which is to receive such payment for the
amount (if any) by which such receipt shall fall short of the full amount of the
Obligation Currency expressed to be payable hereunder and the party which is to
receive such payment agrees to pay to the party liable to make such payment the
amount (if any) by which such receipt shall exceed the full amount of the
Obligation Currency, and, in each case, such obligation shall not be affected by
judgment being obtained for any other sums due under this Agreement. The parties
agree that the rate of exchange which shall be used to determine if such tender,
recovery or realization shall result in the receipt by the party which is to
receive such payment of the full amount of the Obligation Currency expressed to
be payable hereunder shall be the noon buying rate in New York City for cable
transfers in foreign currencies as certified for customs purposes by the Federal
Reserve Bank of New York for the business day preceding that on which the
judgment becomes a final judgment.
13. 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 any of the Offerors, shall be mailed or delivered to it,
to each of the following addresses: c/o TXU Europe Limited, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention: Treasurer; and c/o TXU Corp, Energy Plaza,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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 EUROPE LIMITED
By
-------------------------------
(Authorized Representative)
TXU EUROPE CAPITAL I
By
-------------------------------
(Authorized Representative)
TXU EUROPE FUNDING I, L.P.
By
-------------------------------
(Authorized Representative)
Accepted and delivered as of
the date first above written
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By:
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By:
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SCHEDULE I
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Underwriting Agreement dated: _________________
Representatives:
Designation: ___% Trust Originated Preferred Securities
Liquidation Preference Amount: $___
Date of Maturity:
Distribution Rate: ___%
Purchase Price: $___ per TOPrS
Underwriting Commissions (payable by the Company): $_____ per TOPrS
Public Offering Price: $___ per TOPrS
SCHEDULE II
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TXU Europe Capital I
___% Trust Originated Preferred Securities
Number of
Name TOPrS
---- -----
---------
Total
SCHEDULE III
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[LETTERHEAD OF ▇.▇. LEAN]
[Date]
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as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
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-----------------
Ladies and Gentlemen
TXU Europe Capital I, a statutory business trust ("Trust) formed under the
Delaware Business Trust Act
$__________ aggregate liquidation preference amount of ___% Trust Orignated
Preferred Securities ("TOPrS") guaranteed by TXU Europe Limited ("Guarantor")
--------------------------------------------------------------------------------
1. I am General Counsel to the Guarantor and TXU Eastern Funding Company, a
private unlimited company incorporated under the laws of England and Wales
("TXU Eastern Funding") and have acted as such in connection with (i) the
issuance of the TOPrS by the Trust, (ii) the issuance by TXU Europe Funding
I, L.P., a limited partnership formed under the Delaware Revised Uniform
Limited Partnership Act (the "Partnership") of its ___% Partnership
Preferred Securities (the "Partnership Preferred Securities") having an
aggregate liquidation preference amount of $__________, (iii) the issuance
by TXU Eastern Funding of an aggregate of $__________ principal amount of
Junior Subordinated Debentures, Series ___ (the "TXU Eastern Funding
Debentures") pursuant to an indenture, dated as of _______, among the
Guarantor, TXU Eastern Funding and The Bank of New York, as trustee (the
"TXU Eastern Funding Indenture"), (iv) the issuance by __________ of an
aggregate of $_________ principal amount of Junior Subordinated Debentures,
Series __ (the "______ Debentures" and together with the TXU Eastern
Funding Debentures, the "Debentures") pursuant to an indenture, dated as of
_______, among the Guarantor, _________ and The Bank of New York, as
trustee (the "________ Indenture" and, together with the TXU Eastern
Funding Indenture, the "Indentures"), (v) the guarantee by the Guarantor of
the TOPrS pursuant to a Guarantee Agreement, dated as of ________, between
the Guarantor and The Bank of New York, as trustee (the "Trust Guarantee"),
(vi) the guarantee by the Guarantor of the Preferred Partnership Securities
pursuant to a Guarantee Agreement dated as of ______ between The Bank of
New York, as trustee, and the Guarantor (the "Partnership Guarantee"),
(vii) the guarantee by the Guarantor of the TXU Eastern Funding Debentures
pursuant to the guarantee forming a part of the TXU Eastern Funding
Indenture (the "TXU Eastern Funding Debenture Guarantee"), and (viii) the
guarantee by the Guarantor of the _______ Debentures pursuant to the
guarantee forming a part of the ________ Indenture (the "______ Debenture
Guarantee" and, together with the TXU Eastern Funding Debenture Guarantee,
the "Debenture Guarantees").
2. Terms not otherwise defined herein are used with the meanings ascribed to
them in the Underwriting Agreement dated ___________ among the Guarantor,
TXU Eastern Funding, the Trust, the Partnership and you (the "Underwriting
Agreement")
3. In such capacity I have examined copies of the documents referred to and,
where appropriate, defined in this Opinion. I express no opinion as to any
laws other than to the laws of England in force at the date of this
Opinion.
4. The Indentures, the Debentures, the Trust Agreement, the Partnership
Agreement, the Trust Guarantee, the Partnership Guarantee and the
Underwriting Agreement are together referred to in this Opinion as the
"Transaction Documents".
5. In giving this Opinion I have assumed:
(a) That the signatures on the originals of all documents submitted to me
are genuine;
(b) Other than with regard to the Guarantor and TXU Eastern Funding, the
due capacity and authority of each of the parties to the relevant
documents and the due execution and delivery of such documents by
those parties;
(c) That the obligations assumed by those parties other than the Guarantor
and TXU Eastern Funding under such documents are valid and binding
obligations of each of those parties;
(d) That each of the documents which is the subject of this Opinion is
valid and binding on each party under the law to which it is expressed
to be subject where that is not English law, and that words and
phrases used in those documents have the same meaning and effect as
they would if those documents were governed by English law; and
(e) That all representations and statements as to factual matters
expressed in the Underwriting Agreement are true and accurate.
6. Upon the basis of my familiarity with these transactions and with the
affairs and properties of the Guarantor, TXU Eastern Funding and each of
[________________], being the material subsidiaries of the Guarantor (the
"Material UK Subsidiaries"), subject to the qualifications set out below, I
am of the opinion that:
(a) The Guarantor is a company duly incorporated and validly existing
under the laws of England and Wales, and has the corporate power and
authority to (a) to own, lease and operate its properties and to
conduct its business as currently conducted and as set forth or
contemplated by the Prospectus; (b) execute, deliver and perform its
obligations under those Transaction Documents to which it is a party;
and (c) issue and deliver the Trust Guarantee, the Partnership
Guarantee and the Debenture Guarantees and incur the obligations
evidenced thereby.
(b) TXU Eastern Funding is a company duly incorporated and validly
existing under the laws of England and Wales, and has the corporate
power and authority to (a) own, lease and operate its properties and
to conduct its business as currently conducted and as set forth or
contemplated by the Prospectus; (b) execute, deliver and perform its
obligations under those Transaction Documents to which it is a party;
and (c) issue the TXU Eastern Funding Debentures and incur the
obligations evidenced thereby.
(c) Each Material UK Subsidiary of the Guarantor has been duly
incorporated and is validly existing under the laws of England and
Wales, has the corporate power and authority to own, lease and operate
its properties and to conduct its business as currently conducted and
as set forth in or contemplated by the Prospectus, is duly qualified
to transact business in England and Wales and is qualified as a
foreign corporation to transact business and so far as I am aware is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not have a material adverse effect on the
business, property or financial condition of the Guarantor and its
subsidiaries, considered as a whole.
(d) Each Transaction Documents to which Guarantor or TXU Eastern Funding
is a party has been duly authorized, executed and delivered by the
Guarantor or TXU Eastern Funding, as the case may be.
(e) The execution and delivery by the Guarantor of, and the performance by
the Guarantor of its obligations under, and compliance with the
provisions of, the Transaction Documents to which Guarantor is a party
will not (i) contravene any existing applicable law in England or (ii)
contravene or conflict with any provision of the memorandum or
articles of association of the Guarantor or, any agreement or other
instrument of which I am aware binding upon the Guarantor or which
would affect the due authorization, execution, validity, binding
effect or enforceability of the Transaction Documents to which
Guarantor is a party, or (iii) contravene or conflict with any
judgment, order or decree of any English governmental body, agency or
court having jurisdiction over the Guarantor; and no consent,
approval, authorization or order of, or qualification with, any
governmental or public bodies in the United Kingdom is required for
the performance by the Guarantor of its obligations under the
Transaction Documents to which it is a party.
(f) The execution and delivery by TXU Eastern Funding of, and the
performance by TXU Eastern Funding of its obligations under, the
Transaction Documents to which it is a party and the TXU Eastern
Funding Debentures will not (i) contravene any existing applicable law
in England (ii) contravene or conflict with the memorandum or articles
of association of TXU Eastern Funding or, any agreement or other
instrument of which I am aware binding upon TXU Eastern Funding or
which would affect the due authorization, execution, validity, binding
effect or enforceability of the Transaction Documents to which TXU
Eastern Funding is a party or the TXU Eastern Funding Debentures, or
(iii) contravene or conflict with any judgment, order or decree of any
English governmental body, agency or court having jurisdiction over
TXU Eastern Funding; and no consent, approval, authorization or order
of, or qualification with, any governmental or public bodies in the
United Kingdom is required for the performance by TXU Eastern Funding
of its obligations under the Transaction Documents to which it is a
party or the TXU Eastern Funding Debentures.
(g) I am not aware of any legal or governmental proceedings pending or
threatened to which the Guarantor, TXU Eastern Funding or any of the
Material UK Subsidiaries is party or to which any of the properties of
the Guarantor, TXU Eastern Funding or any of the Material UK
Subsidiaries is subject, other than proceedings described or referred
to in the Prospectus and proceedings that in my belief would not, if
determined adversely, have a material adverse effect on the Guarantor,
TXU Eastern Funding or the Material UK Subsidiaries, taken as whole,
as the case may be.
(h) Under current practice, an English court of competent jurisdiction
would give effect to the choice of the internal laws of the State of
New York [ or the State of Delaware, as the case may be,] as the
proper law of the Transaction Documents if its application in the
circumstances of the case would not (i) be contrary to public policy
and I know of no reason as to why the same should be contrary to
public policy, or (ii) conflict with any rule of English law which is
of mandatory application and I know of no contractual provision which
the English courts might decline to enforce on this basis. Under
English law and subject to the above qualification each of the
Guarantor and TXU Eastern Funding has, pursuant to Section 12 of the
Purchase Agreement [and pursuant to the TXU Eastern Funding
Indenture], validly and severally submitted to the in personam
jurisdiction of the state and federal courts located in the City,
County and State of New York in any action, suit or proceeding arising
out of or relating to [the Transaction Documents].
(i) Neither the Guarantor nor TXU Eastern Funding enjoys any immunity from
suit in the English courts, and no assets of the Guarantor or TXU
Eastern Funding are exempt from execution. The Guarantor, TXU Eastern
Funding, and their respective obligations under the Transaction
Documents are subject to civil and commercial law and to suit and, to
the extent that the Guarantor or TXU Eastern Funding or any of their
respective properties, assets or revenues may have or may hereafter
become entitled to any immunity from suit or from execution, the
Guarantor and TXU Eastern Funding have given an enforceable waiver of
such right (but not of any defenses or other reliefs available to
them) pursuant to Section 13 of the Underwriting Agreement.
7. The opinions expressed in paragraph 6. are subject to the following
qualifications:
(a) It should be understood that I have not been responsible for
investigating or verifying the accuracy of the facts, including
statements of foreign law, or the reasonableness of any statements of
opinion contained in the Prospectus, or that no material facts have
been omitted from it;
(b) The effectiveness of provisions excluding a party from a liability or
duty otherwise owed are limited by law;
(c) The provisions of the Transaction Documents which provide that certain
certifications or determinations will be conclusive and binding will
not necessarily prevent judicial enquiry into the merits of any claim
by an aggrieved party;
(d) Section 117 of the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ may render the provisions of the
Transaction Documents (relating to payment of stamp duty)
unenforceable against the Guarantor and/or TXU Eastern Funding in
respect of United Kingdom stamp duties;
(e) An English court may refuse to give effect to provisions in respect of
the costs of enforcement (actual or contemplated) or of unsuccessful
litigation brought before an English court or where the court has
itself made an order for costs;
(f) Where obligations are to be performed in a jurisdiction outside
England, such obligations may not be enforceable in England to the
extent that performance would be illegal or contrary to public policy
under the laws of that jurisdiction.
8. In the course of the preparation of the information relating to the
Guarantor and TXU Eastern Funding contained in the Prospectus, I have
participated in discussions with certain of their directors and
representatives, with other counsel for the Guarantor and TXU Eastern
Funding, with Deloitte & Touche, the Guarantor's independent accountants,
with PricewaterhouseCoopers, the independent accountants who audited
certain of the financial statements contained in the Prospectus, and with
certain of your officers and employees and your counsel, but I have not
independently verified and I assume no responsibility for the accuracy or
completeness of the representations and statements made to me by the
Guarantor or TXU Eastern Funding or the information included with respect
to the Guarantor and TXU Eastern Funding in the Prospectus. However, no
facts have come to my attention which gives me reason to believe that the
Prospectus (except as to the financial statements and schedules and other
financial and statistical data contained therein, as to which I do not
express any belief), as of its date or on 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.
This Opinion is given solely for your benefit in connection with the issue of
the TXU Eastern Funding Debentures, the Trust Guarantee, the Partnership
Guarantee and the Debenture Guarantees and may not be relied upon by any other
person nor quoted or referred to in any public document nor filed with any
governmental agency without my consent.
Yours faithfully
SCHEDULE IV
[OPINION OF ▇▇▇▇▇▇ ▇▇▇▇]
SCHEDULE V
[LETTERHEAD OF ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.]
[Date]
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as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
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Ladies and Gentlemen:
We have acted as special Delaware counsel for TXU Europe Limited, a
private limited company incorporated in England and Wales (the "Company"), TXU
Europe Funding I, L.P., a limited partnership formed under the Delaware Revised
Uniform Limited Partnership Act (the "Partnership") and TXU Europe Capital I, a
statutory business trust formed under the Delaware Business Trust Act (the
"Trust"), in connection with the matters set forth herein. At your request, this
opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of ____________
(the "Trust Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on _____________;
(b) The Trust Agreement of the Trust, dated as of _____________, by
and among TXU Business Services Company, as depositor ("TXU Services"), and the
trustees of the Trust named therein;
(c) The Amended and Restated Trust Agreement of the Trust (including
Exhibits _____ thereto), dated as of _____________ (the "Trust Agreement"), by
and among TXU Services, the trustees of the Trust named therein (the
"Trustees"), and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust;
(d) The Certificate of Limited Partnership of the Partnership, dated
as of ____________ (the "Partnership Certificate"), as filed in the office of
the Secretary of State on _____________;
(e) The Limited Partnership Agreement of the Partnership, dated as of
_____________, by and among the Company, as general partner of the partnership
(the "General Partner") and the Trust, as initial limited partner of the
Partnership (the "Initial Limited Partner");
(f) The [Action by the General Partner], dated as of ______ (the
["Action"]) creating the ___% Partnership Preferred Securities of the
Partnership (the "Partnership Preferred Securities");
(g) The Amended and Restated Agreement of Limited Partnership, dated
as of _________, among the General Partner, the Initial Limited Partner, and
such other persons who become limited partners thereto (the Amended and Restated
Agreement of Limited Partnership as amended and supplemented by the Action being
hereinafter referred to as the "Partnership Agreement")
(h) The Prospectus dated ___________ (the "Prospectus"), relating to
the preferred securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Trust
Security" and collectively, the "TOPrS");
(i) The Underwriting Agreement, dated _________ (the "Underwriting
Agreement"), among the Company, the Partnership, the Trust, TXU Eastern Funding
Company, a private unlimited company incorporated under the laws of England and
Wales ("TXU Eastern Funding") and the Underwriters named in Schedule II thereto;
(j) A Certificate of Good Standing for the Trust, dated ____________,
obtained from the Secretary of State; and
(k) A Certificate of Good Standing for the Partnership, dated
_____________, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above, which we believe
are all the documents necessary or appropriate for us to have considered for the
purposes of rendering the opinions stated herein. In particular, we have not
reviewed any document (other than the documents listed in paragraphs (a) through
(k) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Trust Certificate are in full force and effect and have not been amended, (ii)
that the Partnership Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof, including with
respect to the creation, operation and termination of the Partnership, and that
the Partnership Agreement and the Partnership Certificate are in full force and
effect and have not been amended,(iii) except to the extent provided in
paragraphs 1 and 10 below, the due creation, due formation or due organization,
as the case may be, and the valid existence in good standing of each party to
the documents examined by us under the laws of the jurisdiction governing its
creation, formation or organization, (iv) the legal capacity of natural persons
who are parties to the documents examined by us, (v) except to the extent set
forth in paragraphs 2 and 11 below, that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (vi) except to the extent
provided in paragraphs 3, 4, 6, 7, 10, 13 and 15 below, that each of the parties
to the documents examined by us has duly authorized, executed and delivered such
documents, (vii) the receipt by each Person to whom a Preferred Trust Security
is to be issued by the Trust (the "Preferred Trust Security Holders") of a
certificate for the Preferred Trust Security and the payment for the Preferred
Trust Security acquired by it, in accordance with the Trust Agreement, and as
described in the Prospectus, (viii) that the TOPrS are issued and sold to the
Preferred Trust Security Holders in accordance with the Trust Agreement, and as
described in the Prospectus, (ix) that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the Delaware
Business Trust Act and filing documents with the Secretary of State) or
employees in the State of Delaware,(xii) that the Trust is treated as a grantor
trust for federal income tax purposes, (xiii) the receipt by the Trust in
connection with its purchase of Partnership Preferred Securities of a
certificate representing each Partnership Preferred Security and the payment for
the Partnership Preferred Securities acquired by it, in accordance with the
Partnership Agreement, and as described in the Prospectus, (xiv) the payment by
the General Partner of the full consideration due from it for the general
partner interest in the Partnership acquired by it, (xv) that the books and
records of the Partnership set forth all information required by the Partnership
Agreement and the Delaware Revised Uniform Limited Partnership Act (the "Limited
Partnership Act")" including all information with respect to al Persons to be
admitted as partners of the Partnership and their contributions to the
Partnership, (xvi) that the Partnership Preferred Securities are issued and sold
to the Trust in accordance with the Partnership Agreement, and as descried in
the Prospectus, (xvii) that the Partnership derives no income from or connected
with sources within the State of Delaware and has no assets, activities (other
than the maintenance of a registered office and registered agent in the State of
Delaware and the filing of documents with the Secretary of State) or employees
in the State of Delaware, and (xviii) that the Partnership is treated as a
partnership for United States federal income tax purposes. We have not
participated in the preparation of the Prospectus and assume no responsibility
for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (i) own, lease and operate its
property and conduct its business as currently conducted and as set forth or
contemplated in the Prospectus, (ii) execute and deliver, and perform its
obligations under, the Underwriting Agreement, and (iii) issue, and perform its
obligations under, the TOPrS and purchase the Partnership Preferred Securities,
as described in the Prospectus.
3. The Trust Agreement is a legal, valid and binding obligation of
the Trustees, and is enforceable against the Trustees, in accordance with its
terms.
4. Under the Delaware Business Trust Act and the Trust Agreement, the
Underwriting Agreement has been duly authorized, executed and delivered by the
Trust.
5. No authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or Delaware agency is required to be obtained
by the Trust solely in connection with the issuance and sale of the TOPrS.
6. The TOPrS have been duly authorized by the Trust Agreement and,
when issued and sold in accordance with the Trust Agreement, the TOPrS will be,
subject to the qualifications set forth in paragraph 7 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
7. The Preferred Trust Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Trust
Security Holders may be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of TOPrS certificates
and the issuance of replacement TOPrS certificates, and (ii) provide security or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
8. Under the Delaware Business Trust Act and the Trust Agreement, the
issuance of the TOPrS is not subject to preemptive rights or other similar
rights.
9. The Partnership has been duly formed and is validly existing in
good standing as a limited partnership under the Delaware Partnership Act; and
all filings required under the laws of the State of Delaware with respect to the
formation and valid existence of the Partnership as a limited partnership have
been made.
10. The Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and binding obligation of the
General Partner, enforceable against the General Partner in accordance with its
terms.
11. Under the Partnership Agreement and the Limited Partnership Act,
the Partnership has the partnership power and authority (i) to own, lease and
operate its property and to conduct its business as currently conducted and as
set forth or contemplated in the Prospectus, (ii) to execute and deliver and
perform its obligations under the Underwriting Agreement, and (iii) to issue and
perform its obligations under the Partnership Preferred Securities and to lend
the proceeds thereof to certain subsidiaries of the Company, as described in the
Prospectus.
12. The Preferred Partnership Securities have been duly authorized by
the Partnership Agreement and, when issued and sold in accordance with the
Partnership Agreement, will be, subject to the qualifications set forth in
paragraph 13 below, fully paid and nonassessable limited partner interests in
the Partnership.
13. Assuming that holders of Partnership Preferred Securities, in
their capacities as such, do not participate in the control of the business of
the Company, the holders of Partnership Preferred Securities, in their
capacities as such, will have no liability in excess of their obligations to
make payments provided for in the Partnership Agreement and their share of the
Partnership's assets and undistributed profits (subject to the obligation of a
holder of Partnership Preferred Securities to repay any funds wrongfully
distributed to it). There are no provisions in the Partnership Agreement the
inclusion of which, subject to the terms and conditions therein, or, assuming
that the Trust, as a limited partner of the partnership, takes no action other
than actions permitted by the partnership Agreement, the exercise of which, in
accordance with the terms and conditions therein, would cause the Trust, as a
limited partner of the partnership, to be deemed to be participating in the
control of the business of the Partnership.
14. Under the Limited Partnership Act and the Partnership Agreement,
the issuance of the Partnership Preferred Securities is not subject to
preemptive rights.
15. Under the Partnership Agreement and the Limited Partnership Act,
the Underwriting Agreement has been duly authorized, executed and delivered by
the Partnership.
16. The execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the transactions
contemplated thereby and the fulfillment by the Trust of the terms do not
violate (i) any of the provisions of the Trust Certificate or the Trust
Agreement, or (ii) any applicable Delaware law or Delaware administrative
regulation.
17. The Preferred Trust Security Holders (other than those Preferred
Trust Security Holders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of Delaware solely
as a result of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
18. The execution, delivery and performance by the Partnership of the
Underwriting Agreement, the consummation by the Partnership of the transactions
contemplated thereby and the fulfillment by the Partnership of the terms thereof
do not violate (i) any of the provisions of the Partnership Certificate or the
Partnership Agreement, or (ii) any applicable Delaware law or Delaware
administrative regulation.
19. The Partnership Preferred Security Holders (other than the
Partnership Preferred Security Holders who reside or are domiciled in the State
of Delaware) will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Partnership, and the
Partnership will not be liable for any income tax imposed by the State of
Delaware.
The opinion expressed in paragraphs 3 and 10 above are subject, as to
enforcement, to the effect upon the Trust Agreement or the Partnership
Agreement, as the case may be, of (i) bankruptcy, insolvency, moratorium,
fraudulent conveyance, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Underwriting Agreement. We also consent to
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇', ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P.'s,
and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP's relying as to matters of Delaware law upon this
opinion in connection with opinions to be rendered by them on the date hereof
pursuant to the Underwriting Agreement. Further, we consent to the reliance by
The Bank of New York and The Bank of New York (Delaware) as to matters of
Delaware law upon this opinion in connection with the matters set forth herein.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
SCHEDULE VI
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[LETTERHEAD OF ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P.]
[Date]
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as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
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Ladies and Gentlemen:
We have acted as United States counsel for TXU Europe Limited, a
private limited company incorporated in England and Wales (the "Company"), TXU
Eastern Funding Company, a private unlimited company incorporated under the laws
of England and Wales ("TXU Eastern Funding"), TXU Europe Funding I, L.P., a
limited partnership (the "Partnership") formed under the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Partnership Act"), and TXU Europe
Capital I, a statutory business trust (the "Trust") formed under the Delaware
Business Trust Act (the "Delaware Trust Act") in connection with the
transactions contemplated by the Underwriting Agreement dated ___________ among
the Company, TXU Eastern Funding, the Partnership, the Trust and you (the
"Underwriting Agreement"), including, among others, (i) the issuance by the
Trust of its ___% Trust Originated Preferred Securities (the "TOPrS") having an
aggregate liquidation preference amount of $___________, (ii) the issuance by
the Partnership of its ___% Partnership Preferred Securities (the "Partnership
Preferred Securities") having an aggregate liquidation preference amount of
$_________, (iii) the issuance by TXU Eastern Funding of an aggregate of
$__________ principal amount of Junior Subordinated Debentures, Series __ (the
"TXU Eastern Funding Debentures") pursuant to an indenture, dated as of
________, among the Company, TXU Eastern Funding and The Bank of New York, as
trustee (the "TXU Eastern Funding Indenture"), (iv) the issuance by __________
of an aggregate of $_________ principal amount of Junior Subordinated
Debentures, Series __ (the "______ Debentures" and together with the TXU Eastern
Funding Debentures, the "Debentures") pursuant to an indenture, dated as of
_______, among the Company, _________ and The Bank of New York, as trustee (the
"________ Indenture" and, together with the TXU Eastern Funding Indenture, the
"Indentures"), (v) the guarantee by the Company of the TOPrS pursuant to a
Guarantee Agreement, dated as of ________, between the Company and The Bank of
New York, as trustee (the "Trust Guarantee"), (vi) the guarantee by the Company
of the Preferred Partnership Securities pursuant to a Guarantee Agreement dated
as of ______ between The Bank of New York, as trustee, and the Company (the
"Partnership Guarantee"), (vi) the guarantee by the Company of the TXU Eastern
Funding Debentures pursuant to the guarantee forming a part of the TXU Eastern
Funding Indenture (the "TXU Eastern Funding Debenture Guarantee"), and (vii) the
guarantee by the Company of the _______ Debentures pursuant to the guarantee
forming a part of the ________ Indenture (the "______ Debenture Guarantee" and,
together with the TXU Eastern Funding Debenture Guarantee, the "Debenture
Guarantees").
Terms not otherwise defined herein are used with the meanings ascribed
to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, the Trust Agreement, the Partnership Agreement, the
Indentures, the Debentures, the Trust Guarantee and the Partnership Guarantee.
We have also examined such other documents and satisfied ourselves as to such
other matters as we have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to various
questions of fact upon the representations and warranties of the Company
contained in the Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon certificates of The Bank
of New York, as trustee under the Indentures as to the authentication of the
Debentures. In our examination we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as photostatic
or certified copies.
Upon the basis of our familiarity with these transactions and with the
affairs and properties of the Company generally, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the Company, TXU Eastern Funding, the Partnership and the
Trust.
2. The TXU Eastern Funding Indenture, the Trust Agreement, the
Partnership Guarantee, the Trust Guarantee and the ________ Debenture Guarantee
have been duly qualified under the Trust Indenture Act.
3. The TXU Eastern Funding Debentures and the TXU Eastern Funding
Indenture have been duly authorized, executed and delivered by TXU Eastern
Funding, the TXU Eastern Funding Debentures are entitled to the benefits of the
TXU Eastern Funding Indenture, and the TXU Eastern Funding Debentures and the
TXU Eastern Funding Indentures are legal, valid and binding obligations of TXU
Eastern Funding enforceable against TXU Eastern Funding in accordance with their
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
and the effect of applicable public policy on the enforceability of provisions
relating to contribution and indemnification.
4. The ____________ Debentures and the ____________ Indenture have
been duly authorized, executed and delivered by ____________, the ____________
Debentures are entitled to the benefits of the ____________ Indenture, and the
____________ Debentures and the ____________ Indentures are legal, valid and
binding obligations of ____________ enforceable against ____________ in
accordance with their 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 and the effect of applicable public policy on the
enforceability of provisions relating to contribution and indemnification.
5. Each of the Trust Guarantee and the Partnership Guarantee has been
duly authorized, executed and delivered by the Company, and is enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity and the effect of applicable
public policy on the enforceability of provisions relating to contribution and
indemnification.
6. The statements made in the Prospectus under the captions
"Description of the Preferred Trust Securities", Description of the Trust
Guarantee", "Description of the Preferred Partnership Securities", "Description
of the Partnership Guarantee", and "Description of the Funding Debentures",
insofar as such statements constitute summaries of the legal matters or
documents referred to therein, are accurate in all material respects
7. None of the Company, TXU Eastern Funding, the Partnership or the
Trust is, or after giving effect to the issuance and sale of the Offered
Securities and the application of the proceeds thereof as described in the
Prospectus will be, directly or indirectly controlled by, or acting on behalf of
any person which is, an investment company within the meaning of the Investment
Company Act of 1940, as amended.
8. The Registration Statement, and the Prospectus at the time it was
filed with the Commission pursuant to Rule 424 under the Securities Act (in each
case 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 rules and regulations of the
Commission thereunder; and the Registration Statement has been declared
effective by the Commission 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.
In the course of the preparation of the information relating to the
Company, TXU Eastern Funding, the Trust or the Partnership contained in the
Prospectus (including the documents incorporated therein by reference) we had
discussions with certain of the Company's officers and representatives and
certain officers and representatives of certain of its subsidiaries, with other
counsel for the Company, with Deloitte & Touche, the Company's independent
accountants, with PricewaterhouseCoopers, the independent certified public
accountants who audited certain of the financial statements of the Company
incorporated by reference in the Registration Statement and the Prospectus, 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 6 above. However, our examination of the
information relating to the Company, TXU Eastern Funding Company, the
Partnership and the Trust contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything which gives us
reason to believe that (in each case except for financial statements and
schedules and financial and statistical data and except for 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 or the laws of England. As to
all matters of New York law, we have, with your consent, relied upon the opinion
of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York, New York, special United States Counsel
to the Company, TXU Eastern Funding, the Partnership and the Trust; as to
matters of English law, we have, with your consent relied upon the opinions of
▇.▇. Lean, General Counsel for the Company and TXU Eastern Funding, addressed to
you of even date herewith.
Very truly yours,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇, L.L.P.
By:
----------------------------
A Partner
SCHEDULE VII
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[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP]
New York, New York
[Date]
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--------------
--------------
--------------
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
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------------------
------------------
Ladies and Gentlemen:
We have acted as special United States counsel for TXU Europe Limited,
a private limited company incorporated in England and Wales (the "Company"), TXU
Eastern Funding Company, a private unlimited company incorporated under the laws
of England and Wales ("TXU Eastern Funding"), TXU Europe Funding I, L.P., a
limited partnership (the "Partnership") formed under the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Partnership Act"), and TXU Europe
Capital I, a statutory business trust (the "Trust") formed under the Delaware
Business Trust Act (the "Delaware Trust Act") in connection with the
transactions contemplated by the Underwriting Agreement dated ___________ among
the Company, TXU Eastern Funding, the Partnership, the Trust and you (the
"Underwriting Agreement"), including, among others, (i) the issuance by the
Trust of its ___% Trust Originated Preferred Securities (the "TOPrS") having an
aggregate liquidation preference amount of $___________, (ii) the issuance by
the Partnership of its ___% Partnership Preferred Securities (the "Partnership
Preferred Securities") having an aggregate liquidation preference amount of
$_________, (iii) the issuance by TXU Eastern Funding of an aggregate of
$__________ principal amount of Junior Subordinated Debentures, Series __ (the
"TXU Eastern Funding Debentures") pursuant to an indenture, dated as of
________, among the Company, TXU Eastern Funding and The Bank of New York, as
trustee (the "TXU Eastern Funding Indenture"), (iv) the issuance by __________
of an aggregate of $_________ principal amount of Junior Subordinated
Debentures, Series __ (the "______ Debentures" and together with the TXU Eastern
Funding Debentures, the "Debentures") pursuant to an indenture, dated as of
_______, among the Company, _________ and The Bank of New York, as trustee (the
"________ Indenture" and, together with the TXU Eastern Funding Indenture, the
"Indentures"), (v) the guarantee by the Company of the TOPrS pursuant to a
Guarantee Agreement, dated as of ________, between the Company and The Bank of
New York, as trustee (the "Trust Guarantee"), (vi) the guarantee by the Company
of the Preferred Partnership Securities pursuant to a Guarantee Agreement dated
as of ______ between The Bank of New York, as trustee, and the Company (the
"Partnership Guarantee"), (vi) the guarantee by the Company of the TXU Eastern
Funding Debentures pursuant to the guarantee forming a part of the TXU Eastern
Funding Indenture (the "TXU Eastern Funding Debenture Guarantee"), and (vii) the
guarantee by the Company of the _______ Debentures pursuant to the guarantee
forming a part of the ________ Indenture (the "______ Debenture Guarantee" and,
together with the TXU Eastern Funding Debenture Guarantee, the "Debenture
Guarantees").
Terms not otherwise defined herein are used with the meanings ascribed
to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate
proceedings in connection with the authorization, execution and delivery of the
Underwriting Agreement, the Trust Agreement, the Partnership Agreement, the
Indentures, the Debentures, the Trust Guarantee and the Partnership Guarantee.
We have also examined such other documents and satisfied ourselves as to such
other matters as we have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to various
questions of fact upon the representations and warranties of the Company
contained in the Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon certificates of The Bank
of New York, as trustee under the Indentures as to the authentication of the
Debentures. In our examination we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as photostatic
or certified copies.
Upon the basis of our familiarity with these transactions and with the
affairs and properties of the Company generally, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the Company, TXU Eastern Funding, the Partnership and the
Trust.
2. The TXU Eastern Funding Indenture, the Trust Agreement, the
Partnership Guarantee, the Trust Guarantee and the ________ Debenture Guarantee
have been duly qualified under the Trust Indenture Act.
3. The TXU Eastern Funding Debentures and the TXU Eastern Funding
Indenture have been duly authorized, executed and delivered by TXU Eastern
Funding, the TXU Eastern Funding Debentures are entitled to the benefits of the
TXU Eastern Funding Indenture, and the TXU Eastern Funding Debentures and the
TXU Eastern Funding Indentures are legal, valid and binding obligations of TXU
Eastern Funding enforceable against TXU Eastern Funding in accordance with their
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
and the effect of applicable public policy on the enforceability of provisions
relating to contribution and indemnification.
4. The ____________ Debentures and the ____________ Indenture have
been duly authorized, executed and delivered by ____________, the ____________
Debentures are entitled to the benefits of the ____________ Indenture, and the
____________ Debentures and the ____________ Indentures are legal, valid and
binding obligations of ____________ enforceable against ____________ in
accordance with their 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 and the effect of applicable public policy on the
enforceability of provisions relating to contribution and indemnification.
5. Each of the Trust Guarantee and the Partnership Guarantee has been
duly authorized, executed and delivered by the Company, and is enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity and the effect of applicable
public policy on the enforceability of provisions relating to contribution and
indemnification.
6. The statements made in the Prospectus under the captions
"Description of the Preferred Trust Securities", Description of the Trust
Guarantee", "Description of the Preferred Partnership Securities", "Description
of the Partnership Guarantee", "Description of the Funding Debentures", insofar
as such statements constitute summaries of the legal matters or documents
referred to therein, are accurate in all material respects.
7. None of the Company, TXU Eastern Funding, the Partnership or the
Trust is, or after giving effect to the issuance and sale of the Offered
Securities and the application of the proceeds thereof as described in the
Prospectus will be, directly or indirectly controlled by, or acting on behalf of
any person which is, an investment company within the meaning of the Investment
Company Act of 1940, as amended.
8. The Registration Statement, and the Prospectus at the time it was
filed with the Commission pursuant to Rule 424 under the Securities Act (in each
case 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 rules and regulations of the
Commission thereunder; and the Registration Statement has been declared
effective by the Commission 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.
We herewith confirm as our opinion the statements under the caption
"Material Tax Considerations--US Income Tax Considerations" in the Prospectus.
In the course of the preparation of the information relating to the
Company, TXU Eastern Funding, the Trust or the Partnership contained in the
Prospectus (including the documents incorporated therein by reference) we had
discussions with certain of the Company's officers and representatives and
certain officers and representatives of certain of its subsidiaries, with other
counsel for the Company, with Deloitte & Touche, the Company's independent
accountants, with PricewaterhouseCoopers, the independent certified public
accountants who audited certain of the financial statements of the Company
incorporated by reference in the Registration Statement and the Prospectus, 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 6 above. However, our examination of the
information relating to the Company, TXU Eastern Funding Company, the
Partnership and the Trust contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything which gives us
reason to believe that (in each case except for financial statements and
schedules and financial and statistical data and except for 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 England. As to all matters of English law, we have, with
your consent, relied upon the opinions of ▇.▇. Lean, General Counsel for the
Company and TXU Eastern Funding, addressed to you of even date herewith.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
SCHEDULE VIII
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[Letterhead of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
[Date]
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--------------
--------------
--------------
as Representatives of the Underwriters
named in Schedule II to the Underwriting
Agreement, as herein defined
c/o
--------------
-----------------
-----------------
Ladies and Gentlemen:
We have acted as counsel to you and the several Underwriters in
connection with the transactions contemplated by the Underwriting Agreement
dated ___________ among TXU Europe Limited, a private limited company
incorporated in England and Wales (the "Company"), TXU Eastern Funding Company,
a private unlimited company incorporated under the laws of England and Wales
("TXU Eastern Funding"), TXU Europe Funding I, L.P., a limited partnership (the
"Partnership") formed under the Delaware Revised Uniform Limited Partnership Act
(the "Delaware Partnership Act"), TXU Europe Capital I, a statutory business
trust (the "Trust") formed under the Delaware Business Trust Act (the "Delaware
Trust Act") and you (the "Underwriting Agreement"), including, among others, (i)
the issuance by the Trust of its ___% Trust Originated Preferred Securities (the
"TOPrS") having an aggregate liquidation preference amount of $___________, (ii)
the issuance by the Partnership of its ___% Partnership Preferred Securities
(the "Partnership Preferred Securities") having an aggregate liquidation
preference amount of $_________, (iii) the issuance by TXU Eastern Funding of an
aggregate of $__________ principal amount of Junior Subordinated Debentures,
Series __ (the "TXU Eastern Funding Debentures") pursuant to an indenture, dated
as of ________, among the Company, TXU Eastern Funding and The Bank of New York,
as trustee (the "TXU Eastern Funding Indenture"), (iv) the issuance by
__________ of an aggregate of $_________ principal amount of Junior Subordinated
Debentures, Series __ (the "______ Debentures" and together with the TXU Eastern
Funding Debentures, the "Debentures") pursuant to an indenture, dated as of
_______, among the Company, _________ and The Bank of New York, as trustee (the
"________ Indenture" and, together with the TXU Eastern Funding Indenture, the
"Indentures"), (v) the guarantee by the Company of the TOPrS pursuant to a
Guarantee Agreement, dated as of ________, between the Company and The Bank of
New York, as trustee (the "Trust Guarantee"), (vi) the guarantee by the Company
of the Preferred Partnership Securities pursuant to a Guarantee Agreement dated
as of ______ between The Bank of New York, as trustee, and the Company (the
"Partnership Guarantee"), (vi) the guarantee by the Company of the TXU Eastern
Funding Debentures pursuant to the guarantee forming a part of the TXU Eastern
Funding Indenture (the "TXU Eastern Funding Debenture Guarantee"), and (vii) the
guarantee by the Company of the _______ Debentures pursuant to the guarantee
forming a part of the ________ Indenture (the "______ Debenture Guarantee" and,
together with the TXU Eastern Funding Debenture Guarantee, the "Debenture
Guarantees"). 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 in the laws of England. We have, with your consent, relied upon opinions
of even date herewith addressed to you by ▇.▇. Lean, General Counsel for the
Company and TXU Eastern Funding. We have reviewed such opinions and believe that
it is satisfactory and that you and we are justified in relying thereon. We
understand that you are relying, for all matters of Delaware law, upon an
opinion of even date herewith addressed to you by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
P.A., Delaware Counsel for the Company.
We have, in addition, examined the documents described in the list of
closing papers as having been delivered to you at the closing and such other
documents and satisfied ourselves as to such other matters as we have deemed
necessary in order to enable us to express this opinion. As to various questions
of fact material to this opinion, we have relied upon representations of the
Company and statements in the Registration Statement hereinafter mentioned. In
such examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us and the genuineness and conformity
to original documents of documents submitted to us as certified or photostatic
copies.
Based upon the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the Company, TXU Eastern Funding, the Partnership and the
Trust.
2. The TXU Eastern Funding Indenture, the Trust Agreement, the
Partnership Guarantee, the Trust Guarantee and the ________ Debenture Guarantee
have been duly qualified under the Trust Indenture Act.
3. The TXU Eastern Funding Debentures and the TXU Eastern Funding
Indenture have been duly authorized, executed and delivered by TXU Eastern
Funding, the TXU Eastern Funding Debentures are entitled to the benefits of the
TXU Eastern Funding Indenture, and the TXU Eastern Funding Debentures and the
TXU Eastern Funding Indentures are legal, valid and binding obligations of TXU
Eastern Funding enforceable against TXU Eastern Funding in accordance with their
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
and the effect of applicable public policy on the enforceability of provisions
relating to contribution and indemnification.
4. The ____________ Debentures and the ____________ Indenture have
been duly authorized, executed and delivered by ____________, the ____________
Debentures are entitled to the benefits of the ____________ Indenture, and the
____________ Debentures and the ____________ Indentures are legal, valid and
binding obligations of ____________ enforceable against ____________ in
accordance with their 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 and the effect of applicable public policy on the
enforceability of provisions relating to contribution and indemnification.
5. Each of the Trust Guarantee and the Partnership Guarantee has been
duly authorized, executed and delivered by the Company, and is enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity and the effect of applicable
public policy on the enforceability of provisions relating to contribution and
indemnification.
6. The statements made in the Prospectus under the captions
"Description of the Preferred Trust Securities", Description of the Trust
Guarantee", "Description of the Preferred Partnership Securities", "Description
of the Partnership Guarantee", "Description of the Funding Debentures", insofar
as such statements constitute summaries of the legal matters or documents
referred to therein, are accurate in all material respects.
7. None of the Company, TXU Eastern Funding, the Partnership or the
Trust is, or after giving effect to the issuance and sale of the Offered
Securities and the application of the proceeds thereof as described in the
Prospectus will be, directly or indirectly controlled by, or acting on behalf of
any person which is, an investment company within the meaning of the Investment
Company Act of 1940, as amended.
8. The Registration Statement, and the Prospectus at the time it was
filed with the Commission pursuant to Rule 424 under the Securities Act (in each
case 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 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, TXU Eastern Funding, the Partnership and the
Trust 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 6 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, and
representatives of the Company and certain of its subsidiaries, with counsel for
the Company, with Deloitte & Touche, the Company's independent accountants, with
PricewaterhouseCoopers, the independent public accountants who audited certain
of the financial statements of the Company 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
belief as to the financial statements 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,