EXHIBIT 4(k)
FORM OF REMARKETING AGREEMENT
REMARKETING
AGREEMENT, dated as of ____________ (the "Remarketing
Agreement") 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
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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
Remarketing Agreement 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 Remarketing Agreement due
to changes in law or facts and
circumstances). Pursuant to the
Supplemental Remarketing Agreement, 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 Remarketing Agreement 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 remarketing agreement 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 remarketing agreement
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,
