Exhibit 1(b)
ENSERCH CAPITAL I
_____% PREFERRED TRUST SECURITIES
UNDERWRITING AGREEMENT
______________________
[Date]
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
_________________________
Ladies and Gentlemen:
1. Introduction.
____________
ENSERCH Corporation, a Texas corporation (the "Company"), and
its financing subsidiary, ENSERCH Capital I, a Delaware business
trust (the "Trust", hereinafter together with the Company, the
"Offerors") propose for the Trust to issue and sell severally to
the underwriters named in Schedule II hereto (the
"Underwriters"), the Trust's ______% Preferred Trust
Securities of the series designation, with the terms and in the
liquidation preference amount specified in Schedule I hereto (the
"Preferred Securities").
2. Description of Preferred Securities.
___________________________________
The Offerors propose for the Trust to issue the Preferred
Securities pursuant to an Amended and Restated Trust Agreement,
to be dated as of ____________, ____, among The Bank of New York,
as Property Trustee, The Bank of New York (Delaware) as Delaware
Trustee and certain employees of the Company or one or of its
affiliates as Administrative Trustees, and holders, from time to
time, of undivided beneficial interests in the assets of the
Trust, in substantially the form heretofore delivered to you,
as representatives of the Underwriters, said Agreement being
hereinafter referred to as the "Trust Agreement". In connection
with the issuance of the Preferred Securities, the Company
proposes (i) to issue its ______% Junior Subordinated Debentures,
Series [__] (the "Debentures") pursuant to an Indenture, dated as
of _________________, ____, between the Company and The Bank of
New York, as trustee (the "Indenture") and (ii) to issue a
guarantee of the Preferred Securities to the extent described in
the Prospectus (as defined below) (the "Guarantee").
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-3, including a prospectus, on January
__, 1998 (Registration Nos. 333-________ and 333-_____-01)
for the registration under the Securities Act of 1933, as
amended (the "Securities Act") of an aggregate of
$275,000,000 of unsecured debt securities ("Debt
Securities") of the Company and Preferred Securities of the
Trust. With respect to any issuance of Preferred Securities
such registration statement also registers under the
Securities Act, the Debentures, the Guarantee and other
obligations of the Company. Such registration statement was
declared effective by the Commission on __________________,
1998. References herein to the term "Registration State-
ment" as of any date shall be deemed to refer to
registration statement Nos. 333-_____ and 333-_____-01, as
amended or supplemented to such date, including all
documents incorporated by reference therein as of such date
pursuant to Item 12 of Form S-3 ("Incorporated Documents").
References herein to the term "Prospectus" as of any given
date shall be deemed to refer to the prospectus forming a
part of registration statement Nos. 333-______ and 333-
______-01, as amended or supplemented as of such date (other
than by amendments or supplements relating to Debt
Securities), including all Incorporated Documents as of such
date and including the prospectus supplement with respect to
the Preferred Securities, the Debentures and the Guarantee,
as amended and supplemented as of such date. References
herein to the term "Effective Date" shall be deemed to refer
to the time and date registration statement Nos. 333-_____
and 333-_____-01 was declared effective. The Company will
not file any amendment to the Registration Statement or
supplement to the Prospectus after the date of this
Agreement and prior to the Closing Date, as hereinafter
defined, without prior notice to the Underwriters, or to
which Counsel for the Underwriters shall reasonably object
in writing. For the purposes of this Agreement, any Incor-
porated Document filed with the Commission on a date prior
to the Closing Date, as hereinafter defined, shall be deemed
an amendment or supplement to the Registration Statement and
the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus, the Trust Agreement, the Indenture and the
Guarantee will fully comply in all material respects with
the applicable provisions of the Securities Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act"),
and the applicable rules and regulations of the Commission
thereunder; on the Effective Date the Registration Statement
did not, and at the Closing Date, as hereinafter defined,
the Registration Statement will not, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; on the Effective Date the
Prospectus did not, and at the Closing Date, as hereinafter
defined, and on the date it is filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 of the
General Rules and Regulations of the Securities Act ("Rule
424"), the Prospectus will not, contain an untrue statement
of a material fact or omit to state a material fact neces-
sary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; and on said dates the Incorporated Documents,
taken together as a whole, fully complied or will comply in
all material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable rules and regulations of the
Commission thereunder, and, when read together with the
Prospectus on said dates, did not and will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that
the foregoing representations and warranties in this
paragraph (b) shall not apply to statements or omissions
made in reliance upon information furnished in writing to
the Company by, or on behalf of, any Underwriter for use in
connection with the preparation of the Registration
Statement or the Prospectus or to any statements in or
omissions from the Statement of Eligibility and
Qualification under the Trust Indenture Act, or amendments
thereto, of the trustee under each of the Trust Agreement,
the Indenture and the Guarantee.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
4. Purchase and Sale.
_________________
(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 liquidation preference amount of
the Preferred Securities set forth opposite the name of such
Underwriter in Schedule II attached hereto, at the purchase
price or prices set forth in Schedule I hereto.
(b) The Company shall pay to the Underwriters a
commission equal to ____% of the aggregate liquidation
preference amount of the Preferred Securities.
5. Time and Place of Closing.
_________________________
Delivery of the Preferred Securities against payment therefor
by certified or official bank check or checks payable to the
Company or pursuant to its order in New York Clearing House funds
shall be made at the offices 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 Offerors and you or established
in accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Preferred Securities shall be delivered to you for the
respective accounts of the Underwriters in fully registered form
in such denominations of $1,000 or any multiple thereof and
registered in such names as you shall reasonably request in
writing not later than 10:00 A.M. on the business day preceding
the Closing Date, or, to the extent not so requested, registered
in the names of the respective Underwriters in such authorized
denominations as the Company shall determine. The Trust agrees
to make the Preferred Securities available to you for checking
purposes not later than 2:00 P.M., New York Time, on the business
day preceding the Closing Date at the office of The Bank of New
York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the liquidation preference
amount of the Preferred Securities which such Underwriter has
agreed to purchase and pay for hereunder, the Company shall
immediately give notice to the other Underwriters of the default
of such Underwriter, and the other Underwriters shall have the
right within 24 hours after the receipt of such notice to
determine to purchase, or to procure one or more others, who are
members of the National Association of Securities Dealers, Inc.
("NASD") (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no sales
within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein and (ii)
in making sales to comply with the NASD's Rules of Fair Practice)
and satisfactory to the Company, to purchase, upon the terms
herein set forth, the liquidation preference amount of the
Preferred Securities which the defaulting Underwriter had agreed
to purchase. If any non-defaulting Underwriter or Underwriters
shall determine to exercise such right, such Underwriter or
Underwriters shall give written notice to the Company of the
determination in that regard within 24 hours after receipt of
notice of any such default, and thereupon the Closing Date shall
be postponed for such period, not exceeding three business days,
as the Company shall determine. If in the event of such a
default no non-defaulting Underwriter shall give such notice,
then this Agreement may be terminated by the Company, upon like
notice given to the non-defaulting Underwriters, within a further
period of 24 hours. If in such case the Company shall not elect
to terminate this Agreement, it shall have the right,
irrespective of such default:
(a) to require such non-defaulting Underwriters to
purchase and pay for the respective liquidation preference
amounts of Preferred Securities which they had severally
agreed to purchase hereunder as hereinabove provided and, in
addition, the liquidation preference amounts of Preferred
Securities which the defaulting Underwriter shall have so
failed to purchase up to a liquidation preference amount
thereof equal to one-ninth (1/9) of the respective
liquidation preference amounts of the Preferred Securities
which such non-defaulting Underwriters have otherwise agreed
to purchase hereunder, and/or
(b) to procure one or more persons, who are members of
the NASD (or, if not members of the NASD, who are not
eligible for membership in the NASD and who agree (i) to
make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the
liquidation preference amount of the Preferred Securities
which such defaulting Underwriter had agreed to purchase or
that portion thereof which the remaining Underwriters shall
not be obligated to purchase pursuant to the foregoing
clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday which
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company.
________________________
The Company agrees that:
(a) It will promptly deliver to each of you a signed
copy of the Registration Statement as originally filed or,
to the extent a signed copy is not available, a conformed
copy, certified by an officer of the Company to be in the
form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with, or
transmitted for filing to, 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, or
transmitted for filing to, the Commission pursuant to Rule
424 as in the opinion of Counsel for the Underwriters a
prospectus covering the Preferred Securities is required by
law to be delivered in connection with sales by an
Underwriter or dealer, any event relating to or affecting
the Company or of which the Company shall be advised in
writing by you shall occur which in the Company's reasonable
opinion 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, or transmitted for filing
to, the Commission pursuant to Rule 424, the Company, upon
your request, will furnish to you, at the expense of such
Underwriter, a reasonable quantity of a supplemental
prospectus or supplements to the Prospectus complying with
Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders and the security holders of the Trust, as soon as
practicable, an earning statement (which need not be
audited) covering a period of at least twelve months
beginning not earlier than the first day of the month next
succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the
Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Preferred Securities for offer and sale under the blue-sky
laws of such jurisdictions as you may designate, provided
that the Offerors shall not be required to qualify as a
foreign corporation or dealer in securities, to file any
consents to service of process under the laws of any
jurisdiction, or to meet any other requirements deemed by
the Offerors to be unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Preferred Securities as provided in Section 5 hereof,
(iii) the preparation, execution and filing by it of the
Supplemental Indenture, (iv) the qualification of the
Preferred Securities under blue-sky laws (including counsel
fees not to exceed $7,500), and (v) 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.
7. Conditions of Underwriters' Obligations.
_______________________________________
The obligations of the Underwriters to purchase and pay for the
Preferred Securities shall be subject to the accuracy of
the representations and warranties made herein on the part of the
Offerors, to the performance by the Offerors of their obligations
to be performed hereunder prior to the Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 6:00 P.M., New York Time, on the second
business day after the date of this Agreement, or such other
time and date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, Delaware counsel for the Company,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P., General Counsel for
the Company, ▇▇▇▇ & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV, V and VI hereto
(i) with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Preferred Securities shall be supplemented or amended after
the Prospectus shall have been filed with, or transmitted
for filing to, the Commission pursuant to Rule 424, with any
changes therein necessary to reflect such supplementation or
amendment.
(d) On and as of the date hereof, you shall have
received from Deloitte & Touche LLP a letter to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder, (ii) in their opinion, the financial
statements audited by them and included or incorporated by
reference in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder, (iii) on the basis of a reading of
the unaudited amounts of operating revenues and net income
included or incorporated by reference in the Prospectus and
the related financial statements from which these amounts
were derived, the latest available unaudited financial
statements of the Company and the minute books of the
Company and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an audit made in accordance with generally
accepted auditing standards and would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that Deloitte & Touche LLP
makes no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing
has come to their attention which caused them to believe
that (A) the unaudited financial statements incorporated by
reference in the Prospectus were not determined in accor-
dance with generally accepted accounting principles applied
on a basis substantially consistent with that of the
corresponding amounts in the latest available audited
financial statements, (B) the unaudited amounts of operating
revenues and net income of the Company included or
incorporated by reference in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of
income incorporated by reference in the Prospectus, (C) for
the twelve months ended as of the date of the latest
available financial statements of the Company, there were
any decreases in operating revenues or net income as
compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior
to the date of such letter, there was any change in the
capital stock of the Company, short-term bank loans,
commercial paper, notes payable to Texas Utilities Company
or long-term debt of the Company or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
that the Prospectus discloses have occurred or may occur or
which are occasioned by the declaration of a regular
quarterly dividend or the acquisition of long-term debt for
sinking fund purposes, or which are described in such
letter, and (iv) they have compared the dollar amounts (or
percentages or ratios derived from such dollar amounts) and
other financial information included or incorporated by
reference in the Registration Statement and the Prospectus
as reasonably requested by you (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company subject to the internal controls of the
Company's accounting system or are derived indirectly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter, and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter. On
and as of the Closing Date you shall have received from
Deloitte & Touche LLP a letter to the effect that such
accountants reaffirm as of the Closing Date and as though
made on the Closing Date the statements made in the letter
furnished by such accountants on the date hereof.
(e) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and, since such dates, there shall not have been
any material transaction entered into by the Company, in
each case other than transactions in the ordinary course of
business and transactions contemplated by the Registration
Statement or Prospectus and at the Closing Date you shall
have received a certificate to such effect dated the Closing
Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Preferred Securities shall
have been satisfactory in form and substance to Counsel for
the Underwriters.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated with the consent of Underwriters which have agreed to
purchase in the aggregate 50% or more of the liquidation
preference amount of the Preferred Securities upon notice thereof
to the Company. Any such termination shall be without liability
of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
8. Conditions of Company's Obligations.
___________________________________
The obligation of the Company to deliver the Preferred
Securities shall be subject to the conditions that the Prospectus
shall have been filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 prior to 6:00 P.M., New York
Time, on the second business day after the date of this Agreement
or such other time and date as may be approved by the Company,
and no stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date and
no proceedings for that purpose shall be pending before, or
threatened by, the Commission at the Closing Date. In case these
conditions shall not have been fulfilled, this Agreement may be
terminated by the Company upon notice thereof to you. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
9. Indemnification.
_______________
(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 any preliminary
prospectus prior to the Effective Date, or in the
Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading; provided, however, that the
indemnity agreement contained in this Section 9 shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished in writing
to the Offerors by any Underwriter, through you or
otherwise, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from that part of the
Registration Statement which shall constitute the Statement
of Eligibility and Qualification under the Trust Indenture
Act of the Trustee under the Mortgage; and provided further,
that the indemnity agreement contained in this Section 9
shall not inure to the benefit of any Underwriter (or of any
person controlling such Underwriter) on account of any such
losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Preferred Securities to any
person if a copy of the Prospectus (exclusive of the
Incorporated Documents) shall not have been given or sent to
such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved
unless, with respect to the delivery of any amendment or
supplement to the Prospectus, the alleged omission or
alleged untrue statement was not corrected in such amendment
or supplement at the time of such written confirmation. The
indemnity agreement of the Offerors contained in this
Section 9 and the representations and warranties of the
Offerors contained in Section 3 hereof shall remain
operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made
by or on behalf of any Underwriter or any such controlling
person, and shall survive the delivery of the Preferred
Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Offerors, their officers and directors, and
each person who controls either of the Offerors within the
meaning of Section 15 of the Securities Act, from and
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or
common law and shall reimburse each of them for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished in writing to the Offerors by or on
behalf of such Underwriter, through you or otherwise, 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 relating to offerings by the Underwriters on
the cover page, (ii) the statements in the first paragraph
on page S-2 concerning stabilization and over allotment by
the Underwriters, and (iii) under "Underwriting", the list
of underwriters, statements in the third paragraph
concerning the offering of the Preferred Securities, the
second sentence of the fifth paragraph concerning the
conduct of the offering and the second sentence of the sixth
paragraph, concerning market making for the Preferred
Securities. The indemnity agreement of the respective
Underwriters contained in this Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made
by or on behalf of either Offeror, its directors or its
officers, any such Underwriter, or any such controlling
person, and shall survive the delivery of the Preferred
Securities.
(c) The Company, the Trust and the several
Underwriters each shall, upon the receipt of notice of the
commencement of any action against it or any person
controlling it as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement
contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the omission so to
notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from
any liability which it or they may have to the indemnified
party otherwise than on account of such indemnity agreement.
In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at
its own expense in the defense, or, if it so elects, to
assume (in conjunction with any other indemnifying parties)
the defense of such action, in which event such defense
shall be conducted by counsel chosen by such indemnifying
party or parties and satisfactory to the indemnified party
or parties who shall be defendant or defendants in such
action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but
if the indemnifying party shall elect not to assume the
defense of such action, such indemnifying party will
reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such
action include both the indemnified party and the
indemnifying party and counsel for the indemnifying party
shall have reasonably concluded that there may be a conflict
of interest involved in the representation by such counsel
of both the indemnifying party and the indemnified party,
the indemnified party or parties shall have the right to
select separate counsel, satisfactory to the indemnifying
party, to participate in the defense of such action on
behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect the
relative fault of each indemnifying party on the one hand
and the indemnified party on the other in connection with
the statements or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, as well
as any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Offerors
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
above.
10. Termination.
___________
This Agreement may be terminated, at any time prior to the
Closing Date, by you with the consent of the Underwriters which
have agreed to purchase in the aggregate 50% or more of the
aggregate liquidation preference amount of the Preferred
Securities 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 or there
shall have been established by the New York Stock Exchange or by
the Commission or by any federal or state agency or by the deci-
sion of any court, any general limitation on prices for such
trading or any general restrictions on the distribution of
securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any new
material (i) outbreak of hostilities or (ii) other national or
international calamity or crisis, including, but not limited to,
an escalation of hostilities which existed prior to the date of
this Agreement, and the effect of any such event specified in
clause (a) or (b) above on the financial markets of the United
States shall be such as to make it impracticable, in the
reasonable judgment of the Underwriters, for the Underwriters to
enforce contracts for the sale of the Preferred Securities. This
Agreement may also be terminated at any time prior to the Closing
Date by you with the consent of the Underwriters which have
agreed to purchase in the aggregate 50% or more of the
liquidation preference amount of the Preferred Securities, if, in
your reasonable judgment, the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus (other
than an amendment or supplement relating solely to the activity
of any Underwriter or Underwriters) prepared and issued by the
Company after the effectiveness of this Agreement shall have
disclosed a material adverse change in the business, property or
financial condition of the Company which has materially impaired
the marketability of the Preferred Securities. Any termination
hereof pursuant to this Section 10 shall be without liability of
any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
11. Miscellaneous.
_____________
THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. This Agreement
shall inure to the benefit of the Company, the several
Underwriters and, with respect to the provisions of Section 9
hereof, each director, officer and controlling person referred to
in said Section 9, and their respective successors. Nothing
herein is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of any provision in this Agreement.
The term "successor" as used herein shall not include any
purchaser, as such purchaser, of any of the Preferred Securities
from any of the several Underwriters.
12. Notices.
_______
All communications hereunder shall be in writing, and, if to
the Underwriters, shall be mailed or delivered to you at the
address set forth above, or, if to the Company, shall be mailed
or delivered to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
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,
ENSERCH CORPORATION
By ____________________________
ENSERCH CAPITAL I
By _____________________________
(Authorized Representative)
Accepted and delivered as of
the date first above written
BY
By __________________________
SCHEDULE I
__________
Underwriting Agreement dated: __________________________________
Securities: _____________ Preferred Securities
Liquidation Preference Amount $
per Capital Securities:
Date of Maturity:
Distribution Rate: _____%
Purchase Price: 100% of the principal amount thereof
Public Offering Price ___% of the principal amount thereof
Series Designation: ______% Preferred Securities (liquidation
preference $______ per Preferred Security)
SCHEDULE II
___________
ENSERCH CAPITAL I PREFERRED SECURITIES
Preferred
Securities
Each
Having a
Liquidation
Preference
Name Amount of
$
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . .
Schedule III
[LETTERHEAD OF ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER]
[Date]
Re: ENSERCH Capital I
_________________
Ladies and Gentlemen:
We have acted as special Delaware counsel for ENSERCH
Corporation, a Texas corporation (the "Company"), and ENSERCH
Capital I, a Delaware business trust (the "Trust"), in connection
with the matters set forth herein. At the request of the Company
and the Trust, 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
December 18, 1997 (the "Certificate"), as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary
of State") on December 18, 1997;
(b) The Trust Agreement of the Trust, dated as of
December 17, 1997, among the Company and the trustees of the
Trust named therein;
(c) The Prospectus, dated January __, 1998 and the
Prospectus Supplement, dated ___________ __, ____, (together, the
"Prospectus"), relating to the ____% Preferred Trust Securities
of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities");
(d) The Amended and Restated Trust Agreement of the
Trust, dated as of __________________ (including Exhibits B and D
thereto) (the "Trust Agreement"), among the Company, the trustees
of the Trust named therein (the "Trustees"), and the holders,
from time to time, of undivided beneficial interests in the
assets of the Trust;
(e) The Underwriting Agreement, dated _______________
the "Underwriting Agreement"), among the Company, the Trust and
______________________________________________________; and
(f) A Certificate of Good Standing for the Trust,
dated ___________________, obtained from the Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the
statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) that the Trust Agreement constitutes the entire
agreement among the parties thereto with respect to the subject
matter thereof, including with respect to the creation, operation
and termination of the Trust, and that the Trust Agreement and
the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below,
the due creation or due organization or due formation, as the
case may be, and valid existence in good standing of each party
to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to
the documents examined by us, (iv) except to the extent set forth
in paragraph 2 below, that each of the parties to the documents
examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents,
(v) except to the extent set forth in paragraph 4 below, the due
authorization, execution and delivery by all parties thereto of
all documents examined by us, (vi) the receipt by each Person
to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred
Trust Securities Certificate registered in the name of such Person
for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement
and the Prospectus, (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Prospectus, and (viii) 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 the filing of documents with the Secretary of
State) or employees in the State of Delaware. 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 which 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, under the Trust Agreement and the
Delaware Business Trust Act, has the trust power and authority to
conduct its business as described in the Prospectus, 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 Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to (i) own
property and conduct its business, all as described in the
Prospectus, (ii) execute and deliver, and to perform its
obligations under, the Underwriting Agreement and (iii) issue and
perform its obligations under the [Trust Securities].
3. The Trust Agreement is a legal, valid and binding
agreement of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its terms.
4. Under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the
Underwriting Agreement by the Trust, and the performance by the
Trust of its obligations thereunder, have been duly authorized by
all requisite trust action on the part of the Trust.
5. No authorization, approval, consent or order of
any Delaware court or Delaware governmental authority or Delaware
agency is required to be obtained by the Trust solely in
connection with the issuance and sale of the Trust Securities.
6. The Preferred Securities have been duly authorized
by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the Preferred Securities will be,
subject to the qualifications set forth in paragraph 7 below,
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust.
7. The Preferred 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
Security Holders may be obligated, pursuant to the Trust
Agreement, to (i) provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers
or exchanges of Preferred Trust Securities Certificates and
the issuance of replacement Preferred Trust Securities Certificates
and (ii) provide security or indemnity in connection with requests
of or directions to the Property Trustee to exercise its rights and
powers under the Trust Agreement.
8. Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Preferred Securities is not
subject to preemptive rights.
9. The issuance and sale by the Trust of the [Trust
Securities], the execution, delivery and performance by the Trust
of the Underwriting Agreement, the consummation by the Trust of
the transactions contemplated thereby and compliance by the Trust
with its obligations thereunder do not violate (i) any of the
provisions of the Certificate or the Trust Agreement, or (ii) any
applicable Delaware law or administrative regulation.
The opinion expressed in paragraph 3 above is subject
to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with your entering into the
Underwriting Agreement. We also consent to the reliance by The
Bank of New York (in its capacity as Debenture Trustee under the
Subordinated Indenture, as trustee under the Guarantee, and as
Property Trustee under the Trust Agreement) as to matters of
Delaware law upon this opinion as if it were addressed to it in
connection with its entering into the Subordinated Indenture, the
Guarantee and the Trust Agreement. In addition, we consent to
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇' relying as to matters of
Delaware law upon this opinion in connection with an opinion to
be rendered by it pursuant to the Underwriting Agreement. Except
as stated above, without our prior written consent, this opinion
may not be furnished or quoted to, or relied upon by, any other
Person for any purpose.
Very truly yours,
Schedule IV
[LETTERHEAD OF ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P.]
[Date]
Ladies and Gentlemen:
We have acted as General Counsel to ENSERCH Corporation
(the "Company") in connection with the transactions contemplated
by the Underwriting Agreement dated __________________ among the
Company, ENSERCH Capital I (the "Trust") and you (the
"Underwriting Agreement"), including, among others (i) the
issuance by the Trust, a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act") of _______%
Preferred Trust Securities (the "Preferred Securities") having an
aggregate liquidation preference amount of $_____________, (ii)
the issuance by the Company of $____________ principal amount of
its Debentures and (iii) the guarantee by the Company of the
Preferred Securities pursuant to a Guarantee Agreement, dated the
date hereof, between the Company and The Bank of New York, as
trustee (the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a public utility corporation duly
authorized by its articles of incorporation, as amended, to
conduct the business which it is now conducting, is subject, as
to rates and services, to the jurisdiction of certain
authorities, as set forth in the Prospectus, and holds valid and
subsisting franchises, licenses and permits authorizing it to
carry on the utility business in which it is engaged.
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
3. The Indenture, the Trust Agreement and the
Guarantee have been duly qualified under the Trust Indenture Act;
4. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity;
5. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the rights and remedies of creditors
generally and of general principles of equity;
6. The statements made in the Prospectus under the
captions "Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Description of the Preferred
Trust Securities" and ___________ and ___________, insofar as
such statements constitute summaries of the legal matters or
documents referred to therein, are accurate in all material
respects;
7. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the Securities will be,
directly or indirectly controlled by, or acting on behalf of any
person which is, an investment company within the meaning of the
Investment Company Act of 1940, as amended;
8. Other than as stated in the Registration Statement
and the Prospectus, there are no material pending legal
proceedings to which the Company is a party or of which property
of the Company is the subject which depart from the ordinary
routine litigation incident to the kind of business conducted by
the Company, and to our best knowledge no such proceedings are
contemplated;
9. The Registration Statement, as amended, as of the
Effective Date, and the Prospectus as of such date (except as to
the financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for that part of the Registration Statement
that constitutes the Forms T-1) complied as to form in all
material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
10. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives,
with other counsel for the Company and with certain of your
officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in paragraph 6 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for that part of
the Registration Statement that constitutes the Forms T-1) (i)
the Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus as
of its date, included, or on the date hereof includes an untrue
statement of a material fact or on such dates omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of ▇▇▇▇ & Priest LLP, New York,
New York, of Counsel to the Company.
Very truly yours,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇ L.L.P.
_______________________
A Partner
Schedule V
[LETTERHEAD OF ▇▇▇▇ & PRIEST LLP]
New York, New York
[Date]
Ladies and Gentlemen:
We have acted as counsel to ENSERCH Corporation (the
"Company") in connection with the transactions contemplated by
the Underwriting Agreement dated ______________________ among the
Company, ENSERCH Capital I (the "Trust") and you (the
"Underwriting Agreement"), including, among others, (i) the
issuance by the Trust, a statutory business trust organized under
the Delaware Business Trust Act (the "Delaware Act") of ______%
Preferred Trust Securities (the "Preferred Securities") having an
aggregate liquidation preference amount of $________________ (ii)
the issuance by the Company of $_________________ principal
amount of its Debentures and (iii) the guarantee by the Company
of the Preferred Securities pursuant to a Guarantee Agreement,
dated the date hereof, between the Company and The Bank of New
York, as trustee (the "Guarantee").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the Trust
Agreement, the Indenture, the Debentures and the Guarantee. We
have also examined such other documents and satisfied ourselves
as to such other matters as we have deemed necessary as a basis
for the conclusions of law contained in the opinions expressed
below. We have relied as to various questions of fact upon the
representations and warranties of the Company contained in the
Underwriting Agreement and, where we deemed appropriate, on
certificates of public officials. We have relied upon a
certificate of the Indenture Trustee as to the authentication of
the Debentures. In our examination we have assumed the
genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as
photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
2. The Indenture, the Trust Agreement and the
Guarantee have been duly qualified under the Trust Indenture Act;
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the Debentures
are entitled to the benefits of the Indenture, and the Debentures
and the Indenture are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity;
4. The 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, receivership, moratorium
and other laws affecting the rights and remedies of creditors
generally and of general principles of equity;
5. The statements made in the Prospectus under the
captions "Description of the Junior Subordinated Debentures,"
"Description of the Guarantee," "Description of the Preferred
Trust Securities," __________ and _____________, insofar as such
statements constitute summaries of the legal matters or documents
referred to therein, are accurate in all material respects;
6. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the Securities
will be, directly or indirectly controlled by, or acting on
behalf of any person which is, an investment company within the
meaning of the Investment Company Act of 1940, as amended;
7. The Registration Statement, as amended, as of the
Effective Date, and the Prospectus as of such date (except as to
the financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for that part of the Registration Statement
that constitutes the Forms T-1) complied as to form in all
material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
8. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debentures and the issuance
by the Company of the Guarantee.
We herewith confirm as our opinion the statements under
the caption "Certain United States Federal Income Tax
Consequences Relating to the Preferred Trust Securities" in the
Prospectus.
In the course of the preparation of the information
relating to the Company contained in the Prospectus (including
the documents incorporated therein by reference) we had
discussions with certain of its officers and representatives,
with other counsel for the Company and with certain of your
officers and employees and your counsel, but we made no
independent verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Prospectus and take no
responsibility therefor except as set forth in the immediately
preceding paragraph and in paragraph 5 above. However, our
examination of the information relating to the Company contained
in the Registration Statement and the Prospectus and our
discussions did not disclose to us anything which gives us reason
to believe that (except for financial statements and schedules
and financial and statistical data as to which we do not express
any belief and except for that part of the Registration Statement
that constitutes the Forms T-1) (i) the Registration Statement,
as of the Effective Date, included an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (ii) the Prospectus as of its date, 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 neces-
sary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
▇▇▇▇ & PRIEST LLP
SCHEDULE VI
[Letterhead of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
[Date]
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 __________
between ENSERCH Corporation (the "Company"), ENSERCH
Capital I (the "Trust") and you (the "Underwriting
Agreement") in which (i) the Trust, a statutory business
trust organized under the Delaware Business Trust Act,
proposes to issue $_________________ aggregate liquidation
preference amount of its ______% Preferred Trust Securities
Due ____________________ (the "Preferred Securities"), (ii)
the Company proposes to issue $__________ principal amount
of its ____% Junior Subordinated Debentures, Series _, Due
__________________, (the "Debentures") and (iii) the
Company proposes to guarantee the Preferred Securities to
the extent described in the Prospectus. Terms not
otherwise defined herein are used with the meanings
ascribed to them in the Underwriting Agreement.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas.
We have, with your consent, relied upon an opinion of even
date herewith addressed to you by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇, L.L.P., Dallas, Texas, General Counsel for the
Company, as to the matters covered in such opinion and
believe that it is satisfactory and that you and we are
justified in relying thereon. We understand that you are
relying, for all matters of Delaware law, upon an opinion
of even date herewith addressed to you by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& Finger, Delaware Counsel for the Company.
We have, in addition, examined the documents
described in the list of closing papers as having been
delivered to you at the closing and such other documents
and satisfied ourselves as to such other matters as we have
deemed necessary in order to enable us to express this
opinion. As to various questions of fact material to this
opinion, we have relied upon representations of the Company
and statements in the Registration Statement hereinafter
mentioned. In such examination we have assumed the
genuineness of all signatures, the authenticity of all
documents submitted to us and the genuineness and
conformity to original documents of documents submitted to
us as certified or photostatic copies.
Based upon the foregoing, we are of the opinion
that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
2. The Indenture has been duly qualified under the
Trust Indenture Act.
3. The Debentures and the Indenture have been duly
authorized, executed and delivered by the Company, the
Debentures are entitled to the benefits of the Indenture,
and the Debentures and the Indenture are legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the
effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, receivership, moratorium and other
laws affecting the rights and remedies of creditors
generally and of general principles of equity.
4. The Guarantee has been duly authorized, executed
and delivered by the Company, and is enforceable against
the Company in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, receivership, moratorium and other
laws affecting the rights and remedies of creditors
generally and of general principles of equity.
5. The statements made in the Prospectus under the
captions "Description of the Junior Subordinated
Debentures," "Description of the Guarantee,"
________________ and ______________, insofar as such
statements constitute summaries of the legal matters or
documents referred to therein, are accurate in all material
respects.
6. Neither the Company nor the Trust is, or after
giving effect to the issuance and sale of the
Securities, will be, and neither the Company nor the Trust
is directly or indirectly controlled by, or acting on
behalf of any person which is, an investment company within
the meaning of the Investment Company Act of 1940.
7. No other approval, authorization, consent or
order of any public board or body (other than in connection
or in compliance with the provisions of the blue-sky laws
of any jurisdiction) is legally required for the
authorization of the issue and sale by the Company of the
Debentures and the Guarantee as contemplated in the
Underwriting Agreement.
8. The Registration Statement, as amended, at the
Effective Date thereof, and the Prospectus at the time it
was filed with or transmitted for filing to the Commission
pursuant to Rule 424 (except in each case as to financial
statements and schedules and other financial and
statistical data contained or incorporated by reference
therein and except for that part of the Registration
Statement that constitutes the Forms T-1, upon which we
express no opinion), complied as to form in all material
respects with the Securities Act.
In passing upon the form of the Registration
Statement and the form of the Prospectus, we necessarily
assume the correctness and completeness of the statements
made by the Company and the information included in the
Registration Statement and the Prospectus and take no
responsibility therefor, except insofar as such statements
relate to us and as set forth in paragraph 5 above. In the
course of the preparation by the Company of the
Registration Statement and the Prospectus, we have had
discussions with certain of its officers and
representatives, with counsel for the Company, with
Deloitte & Touche, LLP, the independent auditors who
audited certain of the financial statements incorporated by
reference in the Registration Statement and the Prospectus
and with certain of your representatives. Our examination
of the Registration Statement and the Prospectus and our
discussions did not disclose to us any information which
gives us reason to believe that at the Effective Date the
Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time
it was filed with or transmitted for filing to the
Commission pursuant to Rule 424, or at the date hereof,
included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We do not express any opinion 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,