Exhibit 99(c)
__________, 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 $700,000,000
aggregate principal amount of its outstanding 6.375% Senior Secured Notes due
2012 and up to $500,000,000 aggregate principal amount of its outstanding 7.000%
Senior Secured Notes due 2032 (collectively, the "Old Notes") for equal
principal amounts, respectively, of its 6.375% Exchange Senior Secured Notes due
2012 and its 7.000% Exchange Senior Secured Notes due 2032 (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 ________, 2002 (the
"Prospectus"), proposed to be distributed to all holders of the Old Notes. The
Old Notes and the New Notes are collectively referred to herein as the "Notes".
Unless the context requires otherwise, references herein to the Notes, the Old
Notes, the New Notes or any series of the Notes will mean beneficial interests
in the book-entry interests that The Depository Trust Company ("DTC") has in
such notes. 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
Notes (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 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
__________, 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 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 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 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 of the Letters 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) 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
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 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 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 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 Notes received
subsequent to the Expiration Date and accept its instructions with respect to
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 (as defined in the Prospectus) 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
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 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 Notes, unaccepted Old Notes or for
New Notes 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 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
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 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 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 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 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. 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
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
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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 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.
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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
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
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any termination of this Agreement, you shall promptly deliver to the Company any
certificates for Notes, 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
6.375% Senior Secured Notes due 2012
and 7.000% Senior Secured Notes due 2032
for its
6.375% Exchange Senior Secured Notes due 2012
and 7.000% Exchange Senior Secured Notes due 2032
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.
