Exhibit 99(c)
July __, 2003
[FORM OF]
EXCHANGE AGENT AGREEMENT
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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 $500,000,000
aggregate principal amount of its outstanding 6.375% Senior Secured Notes due
2015 and up to $350,000,000 aggregate principal amount of its outstanding 7.250%
Senior Secured Notes due 2033 (collectively, the "Old Notes") for equal
principal amounts, respectively, of its 6.375% Exchange Senior Secured Notes due
2015 and its 7.250% Exchange Senior Secured Notes due 2033 (collectively, the
"New Notes") which New Notes 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 July __, 2003 (the
"Prospectus"), proposed to be distributed to all holders of the Old Notes.
Unless the context requires otherwise, references herein to the Old Notes, the
New Notes or any series of the such Notes 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
(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 July __, 2003. 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 Notes to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Notes tendered
in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
[ ], 2003 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 Notes 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 of
the Exchange Offer 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 negligence be discharged by the foregoing.
2. You will establish an account with respect to the Old Notes
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 Notes by causing the Book-Entry Transfer
Facility to transfer such Old Notes into your account in accordance with the
Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each Letter of Transmittal and
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility (or certificates for Old Notes) and any other documents delivered or
mailed to you by or for holders of the Old Notes to ascertain whether: (i) each
Letter of Transmittal and any such other documents are duly executed and
properly completed in accordance with instructions set forth therein and (ii)
the Old Notes 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 Notes 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 Notes 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,
Treasurer or Assistant 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 Notes pursuant to
the Exchange Offer.
5. Tenders of Old Notes 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 Notes shall be considered properly tendered only when
tendered in accordance with the procedures set forth therein. Notwithstanding
the provisions of this paragraph 5, Old Notes which the President, Vice
President, Treasurer or Assistant 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 Notes
received subsequent to the Expiration Date and accept its instructions with
respect to the disposition of such Old Notes.
7. You shall accept tenders:
a. in cases where the Old Notes 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
Notes provided that customary transfer requirements, including
the payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes when so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the registrar for split-up and return any untendered Old Notes or Old Notes 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 Notes properly tendered and you, on behalf of the Company, will
exchange such Old Notes for New Notes and cause such Old Notes to be cancelled.
Delivery of New Notes will be made on behalf of the Company by you at the rate
of $1,000 principal amount of New Notes for each $1,000 principal amount of the
corresponding series of Old Notes tendered as promptly as practicable after
notice (such notice if given orally, to be confirmed in writing) of acceptance
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of said Old Notes by the Company; provided, however, that in all cases, Old
Notes tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Old Notes(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 in lieu thereof) with any required
signature guarantees and any other required documents. You shall issue New Notes
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 Notes tendered pursuant to the
Exchange Offer may be validly withdrawn at any time prior to the Expiration
Date.
10. The Company shall not be required to exchange any Old Notes
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 Notes 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 Notes 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 Notes (or
effect appropriate book-entry transfer), together with any related required
documents and any Letter 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 Notes, unaccepted Old
Notes or for New Notes shall be forwarded by (a) first-class mail, postage
prepaid under a blanket surety bond protecting you and the Company from loss or
liability arising out of the non-receipt or non-delivery 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
security holder, the Company or any third party for special,
indirect or consequential damages, or lost profits, arising in
connection with this Agreement.
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;
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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 Notes
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, 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 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 Notes pursuant
to the Exchange Offer as to whether to tender or refrain from
tendering any portion of Old Notes or as to the market value,
decline or appreciation in market value of any Old Notes that may
or may not occur as a result of the Exchange Offer or as to the
market value of the New Notes.
15. You shall take such action as may be requested from time to
time 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
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 the merits of the Exchange Offer. The Company will furnish you
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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: Assistant Treasurer.
16. You shall advise by facsimile transmission or telephone (and
promptly thereafter confirm in writing) to (i) the Assistant Treasurer of the
Company (facsimile number (000) 000-0000 or telephone number (000) 000-0000),
(ii) Xxxxxx Xxxx & Priest LLP, counsel to the Company (facsimile number (212)
000-0000 or telephone number (000) 000-0000), and (iii) 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 Notes
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 or persons 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 Notes tendered and
the aggregate principal amount of Old Notes accepted and deliver said list to
the Company.
17. Each Letter 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 each unused Letter 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 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,
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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 Notes
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
Notes; 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 Notes, 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 Notes; 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 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.
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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: Assistant 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
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.
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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: Xxxx X. Xxxxx
Title: Assistant Treasurer
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________
Name: Xxxx X. Xxxxx
Title: Vice President
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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
6.375% Senior Secured Notes due 2015
7.250% Senior Secured Notes due 2033
for its
6.375% Exchange Senior Secured Notes due 2015
and 7.250% Exchange Senior Secured Notes due 2033
Fees.....................................................................$5,000*
* In addition, the Company will pay the Exchange Agent an additional $500 for
each extension of the Expiration Date and will reimburse the Exchange Agent
for its reasonable attorney's fees and expenses.
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