Exhibit 99(c)
October 1, 2002
FORM OF EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
Ladies and Gentlemen:
Oncor Electric Delivery Company, a Texas corporation (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange up to $200,000,000
aggregate principal amount of its outstanding 5% Debentures due 2007 and up to
$800,000,000 aggregate principal amount of its outstanding 7% Debentures due
2022 (collectively, the "Old Debentures") for equal principal amounts,
respectively, of its 5% Exchange Debentures due 2007 and its 7% Exchange
Debentures due 2022 (collectively, the "New Debentures") which New Debentures
have been registered under the Securities Act of 1933, as amended. The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated ________, 2002 (the "Prospectus"), proposed to be distributed
to all holders of the Old Debentures. The Old Debentures and the New Debentures
are collectively referred to herein as the "Debentures". Unless the context
requires otherwise, references herein to the Debentures, the Old Debentures, the
New Debentures or any series of the Debentures will mean beneficial interests in
the book-entry interests that The Depository Trust Company ("DTC") has in such
debentures. Capitalized terms used herein and not defined shall have the
meanings ascribed to them in the Prospectus or the related letter of transmittal
in the form or forms to be delivered with the Prospectus to holders of the Old
Debentures (the "Letter of Transmittal").
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York in its capacity as
Exchange Agent hereunder.
The Exchange Offer is expected to be commenced by the Company on or
about __________, 2002. The Letter of Transmittal accompanying the Prospectus
(or in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Old Debentures to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Debentures
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
__________, 2002 or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 A.M.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend, in any way not
inconsistent with the Registration Rights Agreement, or terminate the Exchange
Offer, and not to accept for exchange any Old Debentures not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption THE EXCHANGE OFFER
-- "Conditions to the Exchange Offer." The Company will give oral (promptly
confirmed in writing) or written notice of any amendment, termination or
non-acceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned THE EXCHANGE
OFFER and in the Letter of Transmittal or as specifically set forth herein;
provided, however, that in no way will your general duty to act in good faith
and without gross negligence be discharged by the foregoing.
2. You will establish an account with respect to the Old Debentures at
DTC (the "Book-Entry Transfer Facility") for purposes of the Exchange Offer
within two business days after the date of the Prospectus, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Old Debentures by causing the Book-Entry
Transfer Facility to transfer such Old Debentures into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility (or certificates for Old Debentures) and any other documents delivered
or mailed to you by or for holders of the Old Debentures to ascertain whether:
(i) the Letters of Transmittal and any such other documents are duly executed
and properly completed in accordance with instructions set forth therein and
(ii) the Old Debentures have otherwise been properly tendered. The determination
of all questions as to validity, form, eligibility, acceptance and withdrawal
with respect to the exchange of any Old Debentures shall be made by the Company.
In each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Old Debentures
are not in proper form for transfer or some other irregularity in connection
with the acceptance of the Exchange Offer exists, you will endeavor to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be reasonably necessary or advisable to cause such
irregularity to be corrected. However, you shall not incur any liabilities under
this agreement for failure to give any such notification.
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4. With the approval of the President, Vice President or Treasurer of
the Company or any other person designated by such an officer in writing (such
approval, if given orally, to be promptly confirmed in writing), you are
authorized to waive any defects, irregularities or conditions of tender in
connection with any tender of Old Debentures pursuant to the Exchange Offer.
5. Tenders of Old Debentures may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned THE
EXCHANGE OFFER -- "Procedures for Tendering - Registered Holders and DTC
Participants", and Old Debentures shall be considered properly tendered only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 0, Xxx Xxxxxxxxxx which the
President, Vice President or Treasurer of the Company or any other person
designated in writing by such an officer shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, to be promptly confirmed in writing).
6. You shall advise the Company with respect to any Old Debentures
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Debentures.
7. You shall accept tenders:
a. in cases where the Old Debentures are registered in two or more
names only if signed by all named holders;
b. in cases where the signing person (as indicated in the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only
when proper evidence of his or her authority so to act is submitted; and
c. from persons other than the registered holder of Old Debentures
provided that customary transfer requirements, including the payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Debentures when so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Debentures to the registrar for split-up and return any untendered Old
Debentures or Old Debentures that have not been accepted by the Company to the
holder (or such other person as may be designated in the Letter of Transmittal)
as promptly as practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Debentures properly tendered and you, on behalf of the Company, will
exchange such Old Debentures for New Debentures and cause such Old Debentures to
be cancelled. Delivery of New Debentures will be made on behalf of the Company
by you at the rate of $1,000 principal amount of New Debentures for each $1,000
principal amount of the corresponding series of Old Debentures tendered as
promptly as practicable after notice (such notice if given orally, to be
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confirmed in writing) of acceptance of said Old Debentures by the Company;
provided, however, that in all cases, Old Debentures tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Debentures (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or manually signed facsimile thereof or an
Agent's Message (as defined in the Prospectus) in lieu thereof) with any
required signature guarantees and any other required documents. You shall issue
New Debentures only in denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Debentures tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Debentures
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Debentures
tendered shall be given in a notice (and, if given orally, promptly confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Debentures tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption THE EXCHANGE OFFER -- "Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return such certificates for unaccepted Old Debentures (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such book-entry
transfer).
12. All certificates for reissued Old Debentures, unaccepted Old
Debentures or for New Debentures shall be forwarded by first-class mail, postage
prepaid under a blanket surety bond protecting you and the Company from loss or
liability arising out of the nonreceipt or nondelivery of such certificates or
(b) registered mail insured separately for the replacement value of each such
certificates..
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
a. shall not be liable for any act or omission to act unless the
same constitutes your own negligence, willful misconduct or bad faith, and
in no event shall you be liable to a securityholder, the Company or any
third party for special, indirect or consequential damages, or lost
profits, arising in connection with this Agreement.
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b. shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing by you and
the Company;
c. will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or the Old Debentures represented thereby deposited
with you pursuant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or genuineness of the
Exchange Offer;
d. shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with indemnity reasonably satisfactory to you
and any additional fees for taking such action as is agreed by the parties
hereto;
e. may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper person
or persons;
f. may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution
and validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a
proper person or persons or persons acting in a fiduciary or representative
capacity;
g. may reasonably rely on and shall be protected in acting upon
written or oral instructions from any officer of the Company or any other
party designated by the Company;
h. may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
i. shall not advise any person tendering Old Debentures pursuant to
the Exchange Offer as to whether to tender or refrain from tendering any
portion of Old Debentures or as to the market value, decline or
appreciation in market value of any Old Debentures that may or may not
occur as a result of the Exchange Offer or as to the market value of the
New Debentures.
15. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as described in the Prospectus) or such other
forms as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests for
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information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer and not on the merits of the Exchange Offer. The Company will furnish you
with copies of such documents at your request. All other requests for
information relating to the Exchange Offer shall be directed to the Company,
Attention: Treasurer.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Treasurer of the Company and such
other person or persons as the Company may request, daily (and more frequently
during the week immediately preceding the Expiration Date and if otherwise
reasonably requested) up to and including the Expiration Date, as to the
principal amount of Old Debentures which have been tendered pursuant to the
terms of the Exchange Offer and the items received by you pursuant to the
Exchange Offer and this Agreement (separately reporting and giving cumulative
totals as to items properly received and items improperly received). In
addition, you will also inform, and cooperate in making available to, the
Company or any such other person or persons upon request made from time to time
prior to the Expiration Date of such other information in your possession as it
or he or she reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company and such person as the Company
may request, of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the Expiration
Date the Company shall have received information in sufficient detail to enable
it to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal amount
of Old Debentures tendered and the aggregate principal amount of Old Debentures
accepted and deliver said list to the Company.
17. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by you as to the date and the time of
receipt thereof and shall be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
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respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you harmless
in your capacity as Exchange Agent hereunder against any loss, liability, cost
or expense, including attorneys' fees and expenses, arising out of or in
connection with your acceptance or administration of this Agreement and the
performance of its duties hereunder, including without limitation any act,
omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document reasonably believed by you to be valid, genuine and
sufficient and in accepting any tender or effecting any transfer of Old
Debentures reasonably believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Old Debentures; provided, however, that the Company shall not be liable for
any indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your own negligence, willful misconduct or bad faith or as
a result of your acting or failing to act upon the instructions of the Company
arising out of or in connection with the Exchange Offer, this Agreement or the
administration of your duties hereunder, including without limitation the costs
and expenses of defending and appealing against any action, proceeding, suit or
claim in the premises. In no case shall the Company be liable under this
indemnity with respect to any claim against you unless the Company shall be
notified by you, by letter or by facsimile confirmed by letter, of the written
assertion of a claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or notice of
commencement of action. The Company shall be entitled to participate at its own
expense in the defense of any such claim or other action, and, if the Company so
elects, the Company shall assume the defense of any suit brought to enforce any
such claim. In the event that the Company shall assume the defense of any such
suit, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Company shall
retain counsel reasonably satisfactory to you to defend such suit, and so long
as you shall have not determined, in your reasonable judgment, that a conflict
of interest exists between you and the Company.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. You shall deliver or cause to be delivered, in a timely manner
to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Old Debentures, your check in the amount of all
transfer taxes so payable, and the Company shall reimburse you for the amount of
any and all transfer taxes payable in respect of the exchange of Old Debentures;
provided, however, that you shall reimburse the Company for amounts refunded to
you in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be governed by and construed in accordance with the laws of the State of
New York (including without limitation Section 5-1401 of the New York General
Obligations Law or any successor to such statute) applicable to agreements made
and to be performed entirely within such state, and shall inure to the benefit
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of, and the obligations created hereby shall be binding upon, the successors and
assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby so long as the
economic or legal substance of the agreements contained herein is not affected
in any manner adverse to any party. Upon such determination that any terms or
provisions or the application thereof is invalid, illegal or unenforceable, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the agreements contained herein may be performed
as originally contemplated to the fullest extent possible.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Oncor Electric Delivery Company
c/o TXU Corp.
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Treasurer
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
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28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Debentures, funds or property then held by you
as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
ONCOR ELECTRIC DELIVERY COMPANY
By:____________________________
Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________________
Name:
Title:
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SCHEDULE I
For Services By
THE BANK OF NEW YORK
As Exchange Agent for
Oncor Electric Delivery Company (the "Company")
in the exchange of the Company's
5% Debentures due 2007
7% Debentures due 2022
for its
5% Exchange Debentures due 2007
and 7% Exchange Debentures due 2022
Fees.....................................................................$5,000*
* In addition, the Company will pay the Exchange Agent an additional $500 for
each extension of the Expiration Date, reimburse the Exchange Agent for its
reasonable attorney's fees and expenses.
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