EXHIBIT (d)(10)
, dated as of October 16, 2001 (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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
("Xxxxxxx Xxxxx") and Xxxxxxx, Xxxxx & Co. ("Goldman"), as remarketing agents
(the "Remarketing Agents").
WITNESSETH:
WHEREAS, the Company will issue $875,000,000 aggregate stated amount
(or $1,000,000,000 aggregate stated amount if the overallotment option granted
to the underwriters ("Underwriters") under the Underwriting Agreement, dated as
of October 10, 2001 (the "Underwriting Agreement"), between the Company and the
Underwriters, is exercised in full) of its Equity Units (initially consisting of
Corporate Units (the "Corporate Units")) under the Purchase Contract Agreement,
dated as of October 1, 2001 (the "Purchase Contract Agreement"), by and between
the Purchase Contract Agent and the Company; and
WHEREAS, the Corporate Units will initially consist of up to
17,500,000 units (or 20,000,000 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 in connection with the
issuance of the Corporate Units $437,500,000 (or $500,000,000 if the
Underwriters' overallotment option is exercised in full) aggregate principal
amount of its Series K Senior Notes due November 16, 2006 ("Series K Notes") and
$437,500,000 (or $500,000,000 if the Underwriters' overallotment option is
exercised in full) aggregate principal amount of its Series L Senior Notes due
November 16, 2007 ("Series L Notes", and together with the Series K Notes, the
"Senior Notes"), in each case, issued pursuant to an Indenture (For Unsecured
Debt Securities Series K and Series L), dated as of October 1, 2001 (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 October 1, 2001 (the
"Pledge Agreement") as required pursuant to the Purchase Contract Agreement, by
and among the Company, The Chase Manhattan Bank, 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 each of the
First Purchase Contract Settlement Date and the Second Purchase Contract
Settlement Date, as applicable; and
WHEREAS, unless a Tax Event Redemption has occurred, the Series K
Notes of Corporate Unit holders who have not settled their Purchase Contracts
early, will be remarketed (the "Initial Series K Remarketing") on the third
Business Day immediately preceding August 16, 2004 (the "Initial Series K
Remarketing Date"), and the Series L Notes of Corporate Unit holders who have
not settled their Purchase Contracts early), will be remarketed (the "Initial
Series L Remarketing", and together with the Initial Series K Remarketing, the
"Initial Remarketings") on the third Business Day immediately preceding August
16, 2005 (the "Initial Series L Remarketing Date" and, together with the Initial
Series K Remarketing Date, the "Initial Remarketing Dates"); and
WHEREAS, unless a Tax Event Redemption has occurred, in the event that
the Initial Series K Remarketing results in a Failed Remarketing, the Series K
Notes of Corporate Unit holders who have not given notice on or prior to the
fifth Business Day prior to the First Purchase Contract Settlement Date that
they intend to settle the applicable portion of the Purchase Contracts related
to their Corporate Units with separate cash and who have not settled their
Purchase Contracts early will be remarketed (the "Final Series K Remarketing")
on the third Business Day immediately preceding the First Purchase Contract
Settlement Date (the "Final Series K Remarketing Date"), and in the event the
Initial Series L Remarketing results in a Failed Remarketing, the Series L Notes
of Corporate Unit holders who have not given notice on or prior to the fifth
Business Day prior to the Second Purchase Contract Settlement Date that they
intend to settle the applicable portion of the Purchase Contracts related to
their Corporate Units with separate cash and who have not settled their Purchase
Contracts early will be remarketed (the "Final Series L Remarketing" and
together with the Final Series K Remarketing, the "Final Remarketings") on the
third Business Day immediately preceding the Second Purchase Contract Settlement
Date (the "Final Series L Remarketing Date" and, together with the Final Series
K Remarketing Date, the "Final Remarketing Dates." Each of the Initial
Remarketings and the Final Remarketings is referred to herein as a
"Remarketing"; and each of the Initial Remarketing Dates and the Final
Remarketing Dates, is referred to herein as a "Remarketing Date"); and
WHEREAS, holders of Series K Notes that are not components of
Corporate Units may elect to have their Series K Notes remarketed in either the
Initial Series K Remarketing or the Final Series K Remarketing, and holders of
Series L Notes that are not components of Corporate Units may elect to have
their Series L Notes remarketed in either the Initial Series L Remarketing or
the Final Series L Remarketing, as applicable, in each case by providing notice
of such election within five Business Days prior to the applicable Remarketing
Date, and delivering their Series K Notes or Series L Notes, as applicable, to
the Custodial Agent; and
WHEREAS, the interest rate on the Series K Notes will be reset by the
Reset Agent to the applicable Series K Reset Rate on the applicable Series K
Reset Date and the interest rate on the Series L Notes will be reset by the
Reset Agent to the applicable Series L Reset Rate on the applicable Series L
Reset Date; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx to act as the Reset
Agent, and Xxxxxxx Xxxxx and Goldman together to act as the Remarketing Agents,
and in such capacities to perform the services described herein; and
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WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent, and Xxxxxxx
Xxxxx and Goldman are willing to act as Remarketing Agents, and each such party
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
Agents. The Company hereby appoints:
(a) Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx hereby accepts such
appointment, as the Reset Agent to determine, in consultation with the Company
and in the manner provided for in the Officer's Certificate establishing the
terms of the Senior Notes, the Applicable Benchmark Treasury and applicable
Reset Spread 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) each of Xxxxxxx Xxxxx and Goldman, and each of Xxxxxxx Xxxxx
and Goldman, acting severally and not jointly, accepts such appointment, as one
of two Remarketing Agents, to remarket, on the applicable Remarketing Date, the
Senior Notes that the Purchase Contract Agent and the Custodial Agent shall have
notified the Remarketing Agent have been tendered for inclusion, or are
otherwise to be included, in such Remarketing (all such Senior Notes to be
remarketed, 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 Agents (with such
changes as the Company, the Purchase Contract Agent and the Remarketing Agents
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 Agents will
each agree, subject to the terms and conditions set forth therein, that such
Remarketing Agent 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 applicable Treasury Portfolio Purchase Price,
plus any accrued and unpaid interest (in the case of Initial Remarketings), and
(ii) 100.5% of the aggregate Applicable Principal Amount of such Subject Senior
Notes, plus any accrued and unpaid interest (in the case of Final Remarketings),
and (b) purchase all such remarketed Subject Senior Notes for sale to purchasers
from the Remarketing Agents. The Remarketing Agents shall not remarket any
Subject Senior Notes for a price less than 100% of the aggregate principal
amount of such Senior Notes, plus accrued and unpaid interest, 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 4.6 of the Pledge Agreement and Section 5.4 of the Purchase
Contract Agreement (both of which Sections are incorporated herein by
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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.
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 Agents conduct 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 Agents are 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 Agents. The
Remarketing Agents are not obligated to purchase any Subject Senior Notes that
would otherwise remain unsold in a Remarketing. The Remarketing Agents 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 Agents, not exceeding 25 basis points (.25%) of the
aggregate principal amount of the Subject Senior Notes remarketed by such
Remarketing Agent from any amount received in connection with such Remarketing
in excess of aggregate principal amount of such remarketed Subject Senior Notes
plus any accrued and unpaid interest. 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. (a) The Company may in its absolute discretion replace Xxxxxxx Xxxxx,
Goldman or both as the Remarketing Agents and/or Xxxxxxx Xxxxx as the Reset
Agent in its or their 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 to perform the services that would otherwise be
performed hereunder by the Remarketing Agents and/or the Reset Agent. Upon
providing such notice, the Company shall use all reasonable efforts to appoint
such a successor and to enter into a with such successor
as soon as reasonably practicable.
(b) Xxxxxxx Xxxxx, Goldman or both may resign at any time and be
discharged from its or their 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 any Remarketing Date. Any
such resignation shall become effective upon the Company's appointment of a
successor 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 appoint such a successor and enter into a
with it as soon as reasonably practicable.
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Section 5. DEALING IN THE SECURITIES. Each 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, each Remarketing Agent may
exercise any vote or join in any action with like effect as if it did not act in
any capacity hereunder. Each 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 Agents 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 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 Agents under the Supplemental and shall
pay all expenses relating thereto.
Section 7. CONDITIONS TO THE REMARKETING AGENTS' OBLIGATIONS. (a) The
several obligations of each 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 Agents 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 Agents notice of all such Events of Default and
events of which the Trustee is aware.
Section 8. INDEMNIFICATION. (a) The Company agrees to indemnify each
Remarketing Agent and the Reset Agent, and their respective affiliates,
directors and officers and each person who controls any Remarketing Agent or
Reset Agent within the meaning of Section 15 of the Securities Act of 1933 (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 Agents or Reset Agent in connection with their respective
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 Agents' or Reset Agent's bad faith, wilful
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
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arising out of any acts or omissions of the Remarketing Agents 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 Agents' 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 Agents or Reset Agent as
contemplated by the Agreement, on the one hand, and the value of the engagement
to the Remarketing Agents 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 of 1933) shall be entitled to contribution from the Company,
provided the Company is not also guilty of such fraudulent misrepresentation.
The Company and each 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
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 each 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 under Section 8 hereof notwithstanding the replacement or resignation
of such Remarketing Agent or Reset Agent.
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Section 10. REMARKETING AGENTS' PERFORMANCE; DUTY OF CARE. The duties
and obligations of the Remarketing Agents 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 Agents and the Purchase Contract
Agent. The rights and obligations of Xxxxxxx Xxxxx and Goldman as the
Remarketing Agents hereunder, or Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx and Goldman, as the Remarketing Agents,
and Xxxxxxx Xxxxx, as the Reset Agent, and their respective 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.
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,
7
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, (i) to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 0
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Debt Syndicate and
(ii) to Xxxxxxx, Sachs & Co., 0 Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Registration Department/Xxx Xxxxxx; if to the Reset Agent, to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Debt Syndicate; 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.
8
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: Xxxxxxx X. XxXxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:____________________________________
Authorized Signatory
XXXXXXX, SACHS & CO.
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 October 16, 2001, 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. Each of
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated and Xxxxxxx, Sachs & Co. (the
"Remarketing Agents") hereby agree, 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 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 Agents or the Company) by applicable law, the
Company has filed with the Securities and Exchange 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: the provisions of Section 10, except that Section 10
is amended and supplemented to (i) allow termination of this Remarketing
Agreement Supplement by and with respect to either of the Remarketing Agents if
the Company's representations and warranties herein and in the Remarketing
Agreement are not accurate and correct); (ii) to add the words "after the third
Business Day preceding the applicable Remarketing Date and at or prior to the
Remarketing Closing Date" after the letter "(b)" in the first sentence; and
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(iii) to delete the penultimate sentence thereof and to substitute the following
sentence therefor:
"This Agreement may also be terminated at any time prior to the
Remarketing Closing Date by and with respect to either Remarketing Agent
if, in the reasonable judgment of such Remarketing Agent, the subject
matter of any amendment or supplement to any Registration Statement filed
or Prospectus distributed pursuant to Section 2 of the Supplemental
Remarketing Agreement (other than an amendment or supplement relating
solely to the activity of any Remarketing Agent or Agents or in the event
no Registration Statement and Prospectus have been filed and distributed
pursuant to Section 2 of the Supplemental Remarketing Agreement, any report
prepared and filed by the Company pursuant to the Securities Exchange Act
of 1934 after the third Business Day preceding the applicable Remarketing
Date and prior to the Remarketing Closing Date shall have disclosed a
material adverse change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole, whether or not in
the ordinary course of business, that has materially impaired the
marketability of the Securities;"
and such provisions are made applicable to the obligations of the Remarketing
Agents to the extent applicable to any remarketing of the Subject Senior Notes,
except as such provisions are explicitly amended hereby.
If the Remarketing Agent has determined, based on advice of counsel,
that applicable law, regulations or interpretations of the Securities and
Exchange Commission make it necessary or advisable to deliver a current
prospectus or other offering document in connection with this remarketing, the
entirety of the Underwriting Agreement (other than Sections 1, 4 and 5 and
Subsections 6(g), 7(c)(ii) and (iii), 7(g), 7(h) and 7(i)) shall be incorporated
by reference into this Agreement and, to the extent they are relevant to a
Remarketing of Subject Senior Notes, made applicable hereto, except as
explicitly amended hereby; provided that (i) the following sentence shall be
added at the beginning of Subsection 2(c): "The Remarketing Agreement, as
supplemented by the Supplemental Remarketing Agreement, constitutes a valid and
binding agreement of the Company" and (ii) the following clause (e) shall be
added after Subsection 8(d):
"(e) The indemnification and contribution provisions contained in
Section 9 of this Supplemental Remarketing Agreement shall supersede and
replace any indemnification or contribution provisions contained in the
Remarketing Agreement ("Remarketing Agreement") insofar as the Remarketing
Agreement purports to provide for indemnification or contribution for any
Indemnified Party (as defined in the Remarketing Agreement) in connection
with losses, claims, damages or liabilities relating to or arising out of
the offering of the Subject Senior Notes to subsequent purchasers by the
Remarketing Agents; provided, however, that this Section 9 shall neither
supersede nor replace any obligations of the Company to indemnify for or
contribute to any claims, losses, damages or liabilities of any indemnified
Party (as defined the Remarketing Agreement) relating to or arising out of
any acts or omissions by the Indemnified Party in connection with its
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functions specified in or contemplated by the Remarketing Agreement other
than the offering of the Subject Senior Notes to subsequent purchasers by
the Indemnified Party as Remarketing Agent."
For the purposes of Section 9 of the Underwriting Agreement, the
relative benefits received by the Company on the one hand and the Remarketing
Agents on the other in connection with the remarketing of the Subject Senior
Notes pursuant to this Agreement and the Remarketing Agreement shall be deemed
to be in the same respective proportions as the aggregate price at Remarketing
of the Subject Senior Notes outstanding on the applicable Remarketing Date bears
to the remarketing fee received by the Remarketing Agents pursuant to this
Agreement. The Schedules to the Underwriting Agreement will be superseded by
Schedule I hereto.
(b) To the extent the Underwriting Agreement is applicable hereto,
references therein to (i) the "Underwriter" shall be deemed to refer to the
Remarketing Agents, (ii) the "Securities" and the "Senior Notes" shall be deemed
to refer to the Subject Senior Notes, (iii) "this Agreement" shall be deemed to
refer to the Remarketing Agreement as supplemented by this Agreement, (iv) "the
date hereof" shall be deemed to refer to the third Business Day preceding the
applicable Purchase Contract Settlement Date, 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 Securities and Exchange
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 9(b) to information furnished by the Underwriters shall be deemed to
refer to information provided by the Remarketing Agents 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 Agents agree to use their reasonable
efforts to remarket, and to purchase from the registered holder or holders
thereof in the manner specified in Section 5 hereof, the Subject Senior Notes,
such purchase to be at a purchase price not less than 100% of the [[3-Year]
[4-Year] Treasury Portfolio Purchase Price] [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 Agents a Remarketing Fee, equal to an amount determined by agreement
of the Company and the Remarketing Agents with respect to each Supplemental
Remarketing Agreement, which shall not exceed 25 basis points (.25%) of the
aggregate principal amount of the remarketed Senior Notes, from any amount
received from such Remarketing in excess of the [[3-Year] [4-Year] Treasury
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Portfolio Purchase Price] [aggregate principal amount of such remarketed Senior
Notes], plus any accrued and unpaid interest.
The Obligations of the Remarketing Agents to use their reasonable efforts
hereunder are several and not joint, and neither Remarketing Agent agrees 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 Agents shall designate), which date and
time may be postponed by agreement among the Remarketing Agents, the Company,
and the registered holder or holders thereof. Delivery of the Subject Senior
Notes to be remarketed shall be made by the Collateral Agent to the Remarketing
Agents on the fourth Business Day immediately preceding the applicable
Remarketing Date. Upon a successful Remarketing, the Remarketing Agents may
deduct the Remarketing Fee from any amount of such Remarketing proceeds in
excess of the [[3-Year] [4-Year] Treasury Portfolio Purchase Price] [aggregate
principal amount of such remarketed Senior Notes] plus accrued and unpaid
interest, if any, or, if the remarketed 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 Agents and the Depositary for the Senior Notes
under the Indenture.
If the remarketed 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 Agents 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 Agents, (i) to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Debt Syndicate and (ii) to Xxxxxxx, Sachs & Co., 0
Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department/Xxx Xxxxxx; if to the Reset Agent, to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Debt Syndicate; 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.
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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 several Remarketing Agents.
Very truly yours,
TXU CORP.
By: _________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:____________________________________
Authorized Signatory
CONFIRMED AND ACCEPTED:
XXXXXXX, SACHS & CO.
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:
14
SCHEDULE I
Title of Subject Senior Notes: [Series K Senior Notes due 2006]
[Series L Senior Notes due 2007]
Reset Spread: %
Applicable Benchmark Treasury:
Minimum percentage to be remarketed by Xxxxxxx Xxxxx: %
Minimum percentage to be remarketed by Goldman: %
Underwriting Agreement, dated as of October 10, 2001, between the Company
and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and Xxxxxxx, Sachs & Co., as representatives of the underwriters named
therein.
Remarketing Fee: % ($ )
Remarketing Closing Date, Time and Location:
