EXHIBIT 4(k)
FORM OF
, dated as of ____________ (the "") by and among TXU Corp., a Texas corporation (the "Company"), The
Bank of New York, not individually but solely as purchase contract agent,
trustee and attorney-in-fact of the holders of Purchase Contracts (the "Purchase
Contract Agent"), and ______________________________________, ("XYZ"), as
remarketing agent (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $________________ aggregate stated amount
[(or $___________ aggregate stated amount if the overallotment option granted to
the underwriters ("Underwriters")] pursuant to the Underwriting Agreement, dated
____________ (the "Underwriting Agreement"), between the Company and the
Underwriters, is exercised in full) of its Equity Units (initially consisting of
Corporate Units (as defined below)) under the Purchase Contract Agreement, dated
as of ____________ (the "Purchase Contract Agreement"), by and between the
Purchase Contract Agent and the Company; and
WHEREAS, the Corporate Units will initially consist of _________ units [(or
__________ units if the overallotment option granted to the Underwriters is
exercised in full)] referred to as "Corporate Units"; and
WHEREAS, the Company will issue concurrently as components of the Corporate
Units $___________ [(or $___________ if the Underwriters' overallotment option
is exercised in full)] aggregate principal amount of its Series _ Senior Notes
due ____________ ("Senior Notes"), issued pursuant to an Indenture (For
Unsecured Debt Securities Series _), dated as of ____________ (the "Indenture"),
between The Bank of New York, as trustee, and the Company; and
WHEREAS, the Senior Notes that are components of Corporate Units will be
pledged pursuant to the Pledge Agreement, dated as of ____________ (the "Pledge
Agreement") as required pursuant to the Purchase Contract Agreement, by and
among the Company, ___________________, as Collateral Agent, Securities
Intermediary and Custodial Agent (the "Collateral Agent") and the Purchase
Contract Agent, to secure a Corporate Unit holder's obligations to purchase
common stock of the Company under the related Purchase Contract on
________________ (the "Purchase Contract Settlement Date"); and
WHEREAS, unless a Tax Event Redemption has occurred, the Senior Notes of
Corporate Unit holders who have not settled their Purchase Contracts early, will
be remarketed (the "Initial Remarketing") on the third Business Day immediately
preceding the Initial Reset Date (as defined below) (the "Initial Remarketing
Date"). The "Initial Reset Date" shall mean________________________________; and
WHEREAS, unless a Tax Event Redemption has occurred, in the event that the
Initial Remarketing results in a Failed Remarketing, the Senior Notes of
Corporate Unit holders who have not given notice on or prior to the fifth
Business Day prior to the Purchase Contract Settlement Date that they intend to
settle the Purchase Contracts related to their Corporate Units with separate
cash and who have not settled their Purchase Contracts early will be remarketed
(the "Secondary Remarketing") on the third Business Day immediately preceding
____________ (the "Secondary Remarketing Date"; each of the Initial Remarketing
and the Secondary Remarketing is referred to herein as a "Remarketing," and each
of the Initial Remarketing Date and the Secondary Remarketing Date, is referred
to herein as a "Remarketing Date"); and
WHEREAS, holders of Senior Notes that are not components of Corporate Units
may elect to have their Senior Notes remarketed in either Remarketing, in each
case by providing notice of such election within five Business Days prior to the
applicable Remarketing Date, and delivering their Senior Notes to the Custodial
Agent; and
WHEREAS, the applicable Reset Rate on the Senior Notes will be determined
on the applicable Remarketing Date by the Reset Agent (as defined herein) as the
rate that such Senior Notes should bear in order to have an approximate market
value of [100.5]%, as of the Initial Reset Date or [___________], as the case
may be, (i) of the Remarketing Treasury Portfolio Purchase Price, plus any
accrued and unpaid interest on such Senior Notes (in the case of the Initial
Remarketing) on the third Business Day immediately preceding Initial Reset Date
or (ii) of the Aggregate Principal Amount of the Senior Notes, plus any accrued
and unpaid interest on such Senior Notes (in the case of the Secondary
Remarketing) on the third Business Day immediately preceding ____________, such
Reset Rate to be effective on the applicable Reset Date; provided, however, that
(a) the Company may limit the Reset Rate to be no higher than the rate on the
Applicable Benchmark Treasury on such Business Day plus ___ basis points (___%);
(b) such market value may be less than [100.5]% if the Company exercises such
right to limit the Reset Rate; (c) the Reset Rate shall in no event exceed the
maximum permitted by applicable law; and (d) in the event that the Initial
Remarketing results in a Failed Remarketing, the interest rate on the Senior
Notes will not be reset on the Initial Reset Date; and
WHEREAS, the Company has requested XYZ to act as the Reset Agent and
Remarketing Agent, and in each such capacity to perform the services described
herein; and
WHEREAS, XYZ is willing to act as Reset Agent and Remarketing Agent and in
each such capacity is willing to perform such duties on the terms and conditions
expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Section 1. DEFINITIONS. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein stated, the Pledge Agreement.
Section 2. Appointment and Obligations of Reset Agent and Remarketing
Agent. The Company hereby appoints:
(a) XYZ, and XYZ hereby accepts such appointment, as the Reset Agent
to determine, in consultation with the Company and in the manner provided for in
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the Officer's Certificate establishing the terms of the Senior Notes and in the
Indenture, the Applicable Benchmark Treasury, applicable Reset Spread and, in
the case of an Initial Reset Date [prior to _________________], the portion of
the Applicable Ownership Interest in the Remarketing Treasury Portfolio relating
to the interest payment that would have been due on the Senior Notes on
_________________, in each case on the seventh Business Day preceding the
applicable Reset Date and the applicable Reset Rate on the third Business Day
immediately preceding each applicable Reset Date; and
(b) XYZ, and XYZ hereby accepts such appointment, as the Remarketing
Agent, to remarket Senior Notes (x) of Senior Note holders electing to have
their Senior Notes remarketed on the Initial Remarketing Date or the Secondary
Remarketing Date, as the case may be, and (y) (i) of Corporate Unit holders who
have not early settled the related Purchase Contracts, on the Initial
Remarketing Date and (ii) if the Initial Remarketing has resulted in a Failed
Remarketing, of Corporate Unit holders who have not early settled the related
Purchase Contracts and have failed to notify the Purchase Contract Agent, on or
prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of their intention to settle the related Purchase Contracts
through Cash Settlement, on the Secondary Remarketing Date (all such Senior
Notes specified in clauses (x) and (y) above are hereinafter referred to as the
"Subject Senior Notes"), to the exclusion of other remarketing agents except
such as may be appointed pursuant to Section 4 hereof. Subject Senior Notes will
be remarketed pursuant to the Supplemental attached hereto
as Exhibit A, among the Company, the Purchase Contract Agent and the Remarketing
Agent (with such changes as the Company, the Purchase Contract Agent and the
Remarketing Agent may agree upon, it being understood that changes may be
necessary in the representations, warranties, covenants and other provisions of
the Supplemental due to changes in law or facts and
circumstances). Pursuant to the Supplemental , the
Remarketing Agent will agree, subject to the terms and conditions set forth
therein, that it will (i) use its reasonable efforts to remarket not less than
the percentage agreed to in the Supplemental of the
Subject Senior Notes on the applicable Remarketing Date, (a) at a price of
approximately (i) [100.5]% of the Remarketing Treasury Portfolio Purchase Price,
plus any accrued and unpaid interest on the Subject Senior Notes (in the case of
the Initial Remarketing), and (ii) [100.5]% of the aggregate principal amount of
such Subject Senior Notes, plus any accrued and unpaid interest on the Subject
Senior Notes (in the case of the Secondary Remarketing), and (b) purchase all
such remarketed Subject Senior Notes for sale to purchasers from the Remarketing
Agent. The Remarketing Agent shall not remarket any Subject Senior Notes for a
price less than (x) 100% of the Remarketing Treasury Portfolio Purchase Price,
plus any accrued and unpaid interest on the Subject Senior Notes (in the case of
the Initial Remarketing) and (y) 100% of the aggregate principal amount of such
Subject Senior Notes, plus any accrued and unpaid interest on the Subject Senior
Notes(in the case of the Secondary Remarketing), and shall not be required to
purchase any Subject Senior Notes not successfully remarketed. The proceeds of
such remarketing shall be paid to the Collateral Agent in accordance with
Section 6.2(b) of the Pledge Agreement and Section 4.3(b) of the Purchase
Contract Agreement (in the case of the Initial Remarketing) and Section 4.6 of
the Pledge Agreement and Section 5.4 of the Purchase Contract Agreement (in the
case of the Secondary Remarketing) (all of which Sections are incorporated
herein by reference). If fewer than all of the Subject Senior Notes are
remarketed in accordance with the terms hereof, a Remarketing shall be deemed to
have failed as to all Subject Senior Notes.
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A holder of Senior Notes not pledged pursuant to the Pledge Agreement shall
have no right to have such Senior Notes remarketed unless (i) the Remarketing
Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) the
Subject Senior Notes have not been called for redemption as a result of a Tax
Event, (iii) the Remarketing Agent is able to find a purchaser or purchasers for
Subject Senior Notes, and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent. The Remarketing Agent is not obligated
to purchase any Subject Senior Notes that would otherwise remain unsold in a
Remarketing. The Remarketing Agent shall not be obligated in any case to provide
funds to make payment upon tender of Subject Senior Notes for remarketing.
Section 3. FEES. With respect to each Remarketing, the Remarketing Agent
shall retain as a Remarketing Fee an amount, to be agreed upon by the Company
and the Remarketing Agent, not exceeding ___ basis points (.__%) of the
aggregate principal amount of (i) the Remarketing Treasury Portfolio Purchase
Price (in the case of the Initial Remarketing) and (ii) the aggregate principal
amount of the Subject Senior Notes remarketed (in the case of the Secondary
Remarketing), from any amount received in connection with such Remarketing in
excess of (x) the Remarketing Treasury Portfolio Purchase Price, plus any
accrued and unpaid interest on the Subject Senior Notes (in the case of the
Initial Remarketing), and (y) the aggregate principal amount of such remarketed
Subject Senior Notes, plus any accrued and unpaid interest on the Subject Senior
Notes (in the case of the Secondary Remarketing). In addition, the Reset Agent
shall receive from the Company a reasonable and customary fee for acting as the
Reset Agent (the "Reset Agent Fee"); provided, however, that if a Remarketing
Agent shall also act as the Reset Agent, then the Reset Agent shall not be
entitled to receive any such Reset Agent Fee. Payment of such Reset Agent Fee
shall be made by the Company on the third Business Day immediately preceding the
applicable Remarketing Date in immediately available funds or, upon the
instructions of the Reset Agent, by certified or official bank check or checks
or by wire transfer.
Section 4. REPLACEMENT AND RESIGNATION OF REMARKETING AGENT AND RESET
AGENT; APPOINTMENT OF ADDITIONAL REMARKETING AGENTS. (a) The Company may in its
absolute discretion replace XYZ as the Remarketing Agent and/or XYZ as the Reset
Agent in its capacities hereunder by giving notice prior to 3:00 p.m., New York
City time, on the eighth Business Day immediately prior to any Remarketing Date.
Any such replacement shall become effective upon the Company's appointment of a
successor or successors to perform the services that would otherwise be
performed hereunder by the Remarketing Agent and/or the Reset Agent. Upon
providing such notice, the Company shall use all reasonable efforts to appoint
such a successor or successors and to enter into a with
such successor or successors as soon as reasonably practicable.
(b) XYZ may resign at any time and be discharged from its duties and
obligations hereunder as the Remarketing Agent and/or the Reset Agent by giving
notice prior to 3:00 p.m., New York City time, on the eighth Business Day
immediately prior to either Remarketing Date. Any such resignation shall become
effective upon the Company's appointment of a successor or successors to perform
the services that would otherwise be performed hereunder by the Remarketing
Agent and/or the Reset Agent. Upon receiving notice from any Remarketing Agent
and/or the Reset Agent that it wishes to resign hereunder, the Company shall
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appoint such a successor or successors and enter into a
with it or them as soon as reasonably practicable.
(c) The Company may appoint additional remarketing agents at any time
prior to 3:00 p.m., New York City time, on the eight Business Day immediately
prior to any Remarketing Date. The appointment of any such additional
remarketing agents shall be effective upon such additional remarketing agents
agreeing to be bound by the terms of this agreement. To the extent any
additional remarketing agents are appointed, the obligations of all remarketing
agents thereunder shall be several and not joint.
Section 5. DEALING IN THE SECURITIES. The Remarketing Agent, when acting
hereunder or acting in its individual or any other capacity, may, to the extent
permitted by law, buy, sell, hold or deal in any of the Senior Notes. With
respect to any Senior Notes owned by it, the Remarketing Agent may exercise any
vote or join in any action with like effect as if it did not act in any capacity
hereunder. The Remarketing Agent, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
Section 6. REGISTRATION STATEMENT AND PROSPECTUS. In connection with a
Remarketing, if and to the extent required (in the opinion of counsel for either
the Remarketing Agent or the Company) by applicable law, regulations or
interpretations in effect at the time of such Remarketing, the Company shall use
its reasonable efforts to have a registration statement relating to the Subject
Senior Notes effective under the Securities Act of 1933, as amended (the
"Securities Act") by the third Business Day immediately preceding the applicable
Remarketing Date, shall furnish a current prospectus and/or prospectus
supplement to be used in such Remarketing by the Remarketing Agent under the
Supplemental and shall pay all expenses relating thereto.
Section 7. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. (a) The
obligations of the Remarketing Agent to remarket and purchase the Subject Senior
Notes shall be subject to the terms and conditions of the Supplemental
Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined therein) under the Indenture, or event that with the passage
of time or the giving of notice or both would become an Event of Default under
the Indenture, has occurred and is continuing, then the obligations and duties
of the Remarketing Agent under this Agreement shall be suspended until such
Event of Default or event has been cured. The Company will cause the Trustee to
give the Remarketing Agent notice of all such Events of Default and events of
which the Trustee is aware.
Section 8. INDEMNIFICATION. (a) The Company agrees to indemnify the
Remarketing Agent and the Reset Agent, and their respective affiliates,
directors and officers and each person who controls the Remarketing Agent or
Reset Agent within the meaning of Section 15 of the Securities Act (each such
person being an "Indemnified Party", from and against any and all losses,
claims, damages and liabilities, joint or several, to which such Indemnified
Party may become subject under any applicable federal or state statute,
regulation or common law, and related to or arising out of any acts or omissions
of the Remarketing Agent or Reset Agent in connection with their respective
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duties and obligations as contemplated by Section 2 of this Agreement and will
reimburse any Indemnified Party for all expenses (including reasonable attorney
fees and expenses) as they are incurred in connection with the investigation or
defense of any pending or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party. The Company will
not be liable to any Indemnified Party under the foregoing indemnification
provision to the extent that any loss, claim, damage, liability or expense is
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the Remarketing Agent's or Reset Agent's bad faith, willful
misconduct or negligence. The Company also agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company or its security holders or creditors related to or
arising out of any acts or omissions of the Remarketing Agent or Reset Agent in
connection with their respective duties and obligations as contemplated by
Section 2 hereof, except to the extent that any loss, claim, damage or liability
is found in a final non-appealable judgment by a court of competent jurisdiction
to have resulted from the Remarketing Agent's or Reset Agent's bad faith or
negligence.
(b) If the indemnification provided for in Section 8(a) shall be
unenforceable for any reason, the Company agrees to contribute to the losses,
claims, damages and liabilities for which such indemnification shall be
unenforceable, in such proportion as shall be appropriate to reflect (i) the
relative fault of the Company on the one hand and the Indemnified Party on the
other in connection with the acts or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, (ii) the relative benefits to
the Company of the work performed by the Remarketing Agent or Reset Agent as
contemplated by the Agreement, on the one hand, and the value of the engagement
to the Remarketing Agent or Reset Agent on the other hand, 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 the Company, provided
the Company is not also guilty of such fraudulent misrepresentation. The Company
and the Remarketing Agent and Reset Agent agree that it would not be just and
equitable if contribution pursuant to this Section 8(b) were to be determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above.
(c) Each Indemnified Party shall give written notice as promptly as
reasonably practicable to the Company of any action commenced against it in
respect of which indemnification may be sought hereunder but failure to so
notify the Company hereunder of any such action shall not relieve the Company of
any liability hereunder to the extent the Company is not materially prejudiced
as a result of such failure to notify. The Company may participate at its own
expense in the defense of any such action and may, at its option, assume the
defense thereof with counsel selected by the Company and reasonably acceptable
to the Indemnified Party and such Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it. If the defendants in any such
action include both the Indemnified Party and the Company and counsel for the
Company shall have reasonably concluded that there may be a conflict of interest
involved in the representation by a single counsel of both the Indemnified Party
and the Company, the Indemnified Party shall have the right to select separate
counsel, satisfactory to the Company, provided that, in no event shall the
Company be liable for the fees and expenses of more than one counsel separate
from its own counsel in addition to local counsel for all Indemnified Parties in
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connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Section 9. TERMINATION OF REMARKETING AGREEMENT. This Agreement shall
terminate as to the Remarketing Agent on the effective date of its replacement
pursuant to Section 4(a) hereof or pursuant to Section 4(b) hereof.
Notwithstanding any such termination, the obligations set forth in Section 3
hereof shall survive and remain in full force and effect until all amounts
payable under said Section 3 shall have been paid in full. In addition, each
former Remarketing Agent and Reset Agent shall be entitled to the rights and
benefits, and subject to the obligations, under Section 8 hereof notwithstanding
any such termination or the replacement or resignation of such Remarketing Agent
or Reset Agent.
Section 10. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE. The duties and
obligations of the Remarketing Agent hereunder shall be determined solely by the
express provisions of this Agreement and the Supplemental Remarketing Agreement.
Section 11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 12. TERM OF AGREEMENT. Unless otherwise terminated in accordance
with the provisions hereof and except as otherwise provided herein, this
Agreement shall remain in full force and effect from the date hereof until the
first day thereafter on which no Senior Notes are outstanding.
Section 13. SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of the Remarketing Agent and the Purchase Contract
Agent. The rights and obligations of XYZ as the Remarketing Agent hereunder and
as the Reset Agent hereunder, may not be assigned or delegated to any other
person without the prior written consent of the Company. This Agreement shall
inure to the benefit of and be binding upon the Company, XYZ, as the Remarketing
Agent, and XYZ, as the Reset Agent, and its successors and assigns. The terms
"successors" and "assigns" shall not include any purchaser of Securities merely
because of such purchase.
Section 14. HEADINGS. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
Section 15. SEVERABILITY. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
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Section 16. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
Section 17. AMENDMENTS. This Agreement may be amended by any instrument in
writing signed by the parties hereto.
Section 18. NOTICES. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid or
transmitted by facsimile. All such notices, requests, consents or other
communications shall be addressed as follows: if to the Company, to TXU Corp.,
0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Treasurer; if to the
Remarketing Agent or the Reset Agent, to __________________________, Attention:
_______________; and if to the Purchase Contract Agent, to The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration, or to such other address as any of the above shall specify to
the others in writing.
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IN WITNESS WHEREOF, each of the Company, the Remarketing Agent and the
Purchase Contract Agent has caused this Agreement to be executed in its name and
on its behalf by one of its duly authorized officers as of the date first above
written.
TXU CORP.
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
_________________________________________
By: _________________________________
Authorized Signatory
THE BANK OF NEW YORK
not individually but solely as
Purchase Contract Agent, trustee
and as attorney-in-fact for the
holders of the Purchase Contracts
By: _________________________________
Name:
Title:
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Exhibit A to
Remarketing Agreement
FORM OF SUPPLEMENTAL REMARKETING AGREEMENT
This Supplemental Remarketing Agreement supplements a Remarketing
Agreement, dated ____________, among the parties hereto (the "Remarketing
Agreement"), and the terms hereof together with the terms of the Remarketing
Agreement constitute the entire agreement among the parties with respect to the
Remarketing of the Subject Senior Notes named in Schedule I hereto.
_______________________ (the "Remarketing Agent") hereby agrees, subject to the
terms and conditions herein set forth or incorporated herein, to use its
reasonable efforts to remarket not less than the percentage of the Subject
Senior Notes set forth with respect to such Remarketing Agent in Schedule I
hereto. All such Subject Senior Notes have been tendered for remarketing by the
holders thereof, or are the pledged Senior Notes of holders of Corporate Units
who [have not given notice that they intend to settle the Purchase Contracts
related to their Corporate Units with respect to a Purchase Contract Settlement
Date by a Cash Settlement and] have not early settled their Purchase Contracts.
1. DEFINITIONS. Terms defined in the Remarketing Agreement are used herein
with the meaning ascribed to them therein. Capitalized terms used and not
defined in this Agreement and the Remarketing Agreement shall have the meanings
assigned to them in the Purchase Contract Agreement, the Pledge Agreement, the
Underwriting Agreement and the Indenture, as applicable.
2. REGISTRATION STATEMENT AND PROSPECTUS. If required (in the opinion of
counsel to either the Remarketing Agent or the Company) by applicable law, the
Company has filed with the Securities and Exchange Commission (the
"Commission"), and there has become effective, a registration statement on Form
S-3 (No. 333-_____), including a prospectus, relating to the Subject Senior
Notes. Such registration statement, and the documents incorporated by reference
therein, as amended to the date of this Agreement, is hereinafter referred to as
the "Registration Statement", and the prospectus included in the Registration
Statement, as amended or supplemented to the date of this Agreement to relate to
the Subject Senior Notes and to the remarketing of the Subject Senior Notes, and
the documents incorporated by reference therein, is hereinafter referred to as
the "Prospectus" (including in each case all documents incorporated by
reference).
3. PROVISIONS INCORPORATED BY REFERENCE.
(a) Subject to Section 3(b), the following provisions of the
Underwriting Agreement shall be incorporated, as applicable, into this Agreement
and made applicable to the obligations of the Remarketing Agent, except as
explicitly amended hereby: ____________________.
(b) To the extent the Underwriting Agreement is applicable hereto,
references therein to (i) the "Underwriter" shall be deemed to refer to the
Remarketing Agent, (ii) the "Securities" and the "Senior Notes" shall be deemed
to refer to the Subject Senior Notes, (iii) "this Agreement" shall be deemed to
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refer to the Remarketing Agreement as supplemented by this Agreement, (iv) "the
date hereof" shall be deemed to refer to the Initial Remarketing Date or the
Secondary Remarketing Date, as the case may be, and (v) "Closing Date" shall be
deemed to refer to the Remarketing Closing Date specified in Schedule I hereto
(the "Remarketing Closing Date"). To the extent the provisions of such
Underwriting Agreement refer to the "Prospectus" or the "Registration
Statement," such references shall be deemed to (i) refer to any prospectus or
registration statement, or other offering document, that the Company is required
to prepare or file with respect to the Subject Senior Notes pursuant to
applicable law, regulations or interpretations of the Commission in effect at
the time of the Remarketing of such Subject Senior Notes, including all
documents incorporated by reference therein and (ii) refer to each such document
as amended or supplemented to the third Business Day preceding the applicable
Remarketing Date and the Remarketing Closing Date, as applicable. The term
"Incorporated Documents" in such Underwriting Agreement shall be deemed to
include those filed and incorporated through the date hereof and the Tender
Date. References to issuance and/or sale of Senior Notes shall be deemed to
refer to Remarketing of the Subject Senior Notes. References in Section _____ to
information furnished by the Underwriters shall be deemed to refer to
information provided by the Remarketing Agent for use in the Prospectus.
4. PURCHASE AND SALE; REMARKETING FEE. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth or
incorporated herein, the Remarketing Agent agrees to use its reasonable efforts
to remarket, and to purchase from the registered holder or holders thereof in
the manner specified in Section 5 hereof, the principal amount of the Subject
Senior Notes set forth in Schedule 1 hereto, such purchase to be at a purchase
price not less than 100% of [the Remarketing Treasury Portfolio Purchase Price,
plus any accrued and unpaid interest on the Subject Senior Notes] [the aggregate
principal amount of such Senior Notes, plus any accrued and unpaid interest
thereon]. In connection therewith, under the terms of the Senior Notes, the
registered holder or holders thereof have agreed, in the manner specified in
Section 5 hereof, to pay to the Remarketing Agent a Remarketing Fee, equal to an
amount determined by agreement of the Company and the Remarketing Agent with
respect to each Supplemental Remarketing Agreement, which shall not exceed __
basis points (.__%) of the aggregate principal amount of the remarketed Subject
Senior Notes, from any amount received from such Remarketing in excess of [the
Remarketing Treasury Portfolio Purchase Price] [the aggregate principal amount
of such remarketed Subject Senior Notes], plus any accrued and unpaid interest
on the Subject Senior Notes.
The Remarketing Agent does not agree to purchase or underwrite any Senior
Notes not remarketed by it. If fewer than all of the Subject Senior Notes are
remarketed in accordance with the terms hereof, the Remarketing shall be deemed
to have failed as to all Subject Senior Notes.
5. DELIVERY AND PAYMENT. Delivery of payment for the remarketed Subject
Senior Notes and payment of the Remarketing Fee shall be made on the Remarketing
Closing Date (as defined in Schedule I hereto) at the location and time
specified in Schedule I hereto (or such later date not later than five Business
Days after such date as the Remarketing Agent shall designate), which date and
time may be postponed by agreement among the Remarketing Agent, the Company, and
the registered holder or holders of the Subject Senior Notes. Delivery of the
Subject Senior Notes to be remarketed shall be made by the Collateral Agent and
the Custodial Agent, as applicable, to the Remarketing Agent on the fourth
Business Day immediately preceding the applicable Remarketing Date. Upon a
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successful Remarketing, the Remarketing Agent may deduct the Remarketing Fee
from any amount of such Remarketing proceeds in excess of the [Remarketing
Treasury Portfolio Purchase Price] [aggregate principal amount of such
remarketed Subject Senior Notes] plus accrued and unpaid interest, if any, on
the Subject Senior Notes or, if the remarketed Subject Senior Notes are
represented by a Global Security, payment of the Remarketing Fee may be made by
any method of transfer agreed upon by the Remarketing Agent and the Depositary
for the Subject Senior Notes under the Indenture.
If the remarketed Subject Senior Notes are not represented by a Global
Security, certificates for the Senior Notes shall be registered in such names
and denominations as the Remarketing Agents may request and the Company agrees
to have such certificates available for inspection, packaging and checking by
the Remarketing Agent in New York, New York not later than 1:00 p.m. on the
Business Day prior to the Remarketing Closing Date.
6. NOTICES. Unless otherwise specified, any notices, requests, consents or
other communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All written notices
and confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid or transmitted by facsimile. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to TXU Corp., 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000, Attention: Treasurer; if to the Remarketing Agent or the Reset Agent, to
__________________________, Attention:_______________; and if to the Purchase
Contract Agent, to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Administration, or to such other address as
any of the above shall specify to the other in writing.
A-3
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Remarketing Agent.
Very truly yours,
TXU CORP.
By: _______________________________
Name:
Title:
A-4
CONFIRMED AND ACCEPTED:
_________________________________________
By: _________________________________
Authorized Signatory
THE BANK OF NEW YORK
not individually but solely as
Purchase Contract Agent, trustee
and as attorney-in-fact for the
holders of the Purchase Contracts
By: _________________________________
Name:
Title:
A-5
SCHEDULE I
Title of Subject Senior Notes: Series _ Senior Notes due ____________
Principal Amount of Subject Senior Notes: $
Reset Spread: %
Applicable Benchmark Treasury:
[Minimum percentage to be remarketed by XYZ: %]
Underwriting Agreement, ____________, between the Company
and _______________________________________________________________________,
as representative of the underwriters named therein.
Remarketing Fee: % ($ )
Remarketing Closing Date, Time and Location:
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