Exhibit 5(d)
Richards, Layton & Finger
One Rodney Square
Wilmington, Delaware 19899
December 21, 1999
TXU Europe Funding I, L.P.
TXU Europe Capital I
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Re: TXU Europe Funding I, L.P. and TXU Europe Capital I
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Ladies and Gentlemen:
We have acted as special Delaware counsel for TXU Eastern Funding
Company, a private unlimited company incorporated under the laws of England
and Wales ("TXU Eastern"), TXU Europe Limited, a private company incorporated
under the laws of England and Wales ("TXU Europe"), TXU Europe Funding I, L.P.,
a Delaware limited partnership (the "Partnership"), and TXU Europe Capital I, a
Delaware business trust (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 Limited Partnership of the Partnership, dated
as of November 22, 1999, as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 22, 1999;
(b) The Agreement of Limited Partnership of the Partnership, dated
as of November 22, 1999;
TXU Europe Funding I, L.P.
TXU Europe Capital I
December 21, 1999
Page 2
(c) A form of Amended and Restated Agreement of Limited Partnership
of the Partnership (including Annex A thereto) (the "Partnership Agreement"),
to be entered into among TXU Europe, as general partner, and the Trust, as
limited partner, attached as an exhibit to the Registration Statement (as
defined below);
(d) The Certificate of Trust of the Trust, dated as of November 22,
1999 (the "Trust Certificate"), as filed in the office of the Secretary of State
on November 22, 1999;
(e) The Trust Agreement of the Trust, dated as of November 22, 1999,
among TXU Business Services Company, a Texas corporation ("TXU Business"), and
the trustees of the Trust named therein;
(f) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A-1 and A-2 thereto) (the "Trust Agreement"), to be
entered into among TXU Business, as depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust, attached as an exhibit to the Registration
Statement;
(g) The Registration Statement (the "Registration Statement") on
Form S-1, including a related preliminary prospectus (the "Prospectus"),
relating to Preferred Trust Securities of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Trust Security" and collectively, the "Preferred Trust Securities"), and the
Preferred Partnership Securities of the Partnership representing limited
partner interests in the Partnership (each, a "Preferred Partnership Security"
and collectively, the "Preferred Partnership Securities"), as proposed to be
filed by the TXU Eastern, TXU Europe, the Partnership and the Trust with the
Securities and Exchange Commission on or about December 21, 1999;
(h) A Certificate of Good Standing for the Partnership, dated
December 21, 1999, obtained from the Secretary of State; and
(i) A Certificate of Good Standing for the Trust, dated December 21,
1999, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as
defined in the Partnership Agreement.
TXU Europe Funding I, L.P.
TXU Europe Capital I
December 21, 1999
Page 3
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (i) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (i) 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
Partnership Agreement constitutes the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
admission of partners to, and 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, (ii) 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, (iii)
except to the extent provided in paragraphs 1 and 5 below, the due creation or
the 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 or organization or formation, (iv)
the legal capacity of natural persons who are signatories to the documents
examined by us, (v) 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) that all documents examined by us have
been duly authorized, executed and delivered by all parties thereto, (vii) the
receipt by each Person to whom a Preferred Partnership Security is to be issued
by the Partnership (collectively, the "Preferred Partnership Security Holders")
of an L.P. Certificate and the payment for the Preferred Partnership Security
acquired by it, in accordance with the Partnership Agreement and the
Registration Statement, (viii) the receipt by each Person to whom a Preferred
Trust Security is to be issued by the Trust (collectively, the "Preferred Trust
Security Holders") of a Preferred Trust Security Certificate (as defined in the
Trust Agreement) and the payment for the Preferred Trust Security acquired
TXU Europe Funding I, L.P.
TXU Europe Capital I
December 21, 1999
Page 4
by it, in accordance with the Trust Agreement and the Registration Statement,
(ix) 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 (6 Del. C. ss. 17-101, et seq.) (the "Partnership Act"),
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including all information with respect to all Persons to be admitted as Partners
and their contributions to the Partnership, (x) that the Partnership Preferred
Securities are issued and sold to the Partnership Preferred Security Holders
in accordance with the Registration Statement and the Partnership Agreement,
and (xi) that the Preferred Trust Securities are issued and sold to the
Preferred Trust Security Holders in accordance with the Registration Statement
and the Trust Agreement. We have not participated in the preparation of the
Registration Statement 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 Partnership has been duly formed and is validly
existing in good standing as a limited partnership under the Partnership Act.
2. The Preferred Partnership Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable limited partner interests in the Partnership.
3. Assuming that the Preferred Partnership Security Holders, as
limited partners of the Partnership, do not participate in the control of
the business of the Partnership, the Preferred Partnership Security Holders,
as limited partners of the Partnership, 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 Preferred Partnership Security Holder to repay any funds
wrongfully distributed to it).
TXU Europe Funding I, L.P.
TXU Europe Capital I
December 21, 1999
Page 5
4. There are no provisions in the Partnership Agreement the inclusion
of which, subject to the terms and conditions therein, or, assuming that the
Preferred Partnership Security Holders, as limited partners of the Partnership,
take 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 Preferred Partnership Security Holders, as limited partners of the
Partnership, to be deemed to be participating in the control of the business
of the Partnership.
5. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (12 Del.
---
C. s. 3801, et seq.).
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6. The Preferred Trust Securities will represent valid and, 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 to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Legality" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission hereunder. 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,
/s/ Richards, Layton & Finger, P.A.