Exhibit 4(d)
FORM OF NEW 2015 NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ONCOR
ELECTRIC DELIVERY COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO. _____ CUSIP NO. _______
ONCOR ELECTRIC DELIVERY COMPANY
6.375% EXCHANGE SENIOR SECURED NOTES DUE 2015
ONCOR ELECTRIC DELIVERY COMPANY, a corporation duly organized and existing
under the laws of the State of Texas (herein referred to as the "Company", which
term includes any successor Person under the Indenture referred to below), for
value received, hereby promises to pay to
or registered assigns, the principal sum of __________ ($________) Dollars on
January 15, 2015, and to pay interest on said principal sum semi-annually in
arrears on January 15 and July 15 of each year commencing July 15, 2003 (each an
"Interest Payment Date") at the rate of 6.375% per annum until the principal
hereof is paid or made available for payment. Interest on the Securities of this
series will accrue from and including December 20, 2002, to and excluding the
first Interest Payment Date, and thereafter will accrue from and including the
last Interest Payment Date to which interest has been paid or duly provided for.
No interest will accrue on the Securities of this series with respect to the day
on which the Securities of this series mature. In the event that any Interest
Payment Date is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of such delay) with the same
force and effect as if made on the Interest Payment Date. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on December 31 for the January 15 Interest Payment Date and on July 1
for the July 15 Interest Payment Date (each a "Regular Record Date") immediately
preceding such Interest Payment Date, except that interest payable at Maturity
will be payable to the Person to whom principal shall be paid. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture referred to
herein.
Payment of the principal of (and premium, if any) and interest at
Maturity on this Security shall be made upon presentation of this Security at
the office or agency of the Company maintained for that purpose in The City of
New York, in the State of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that, at the option of the Company,
interest on this Security (other than interest payable at Maturity) may be paid
by check mailed to the address of the person entitled thereto, as such address
shall appear on the Security Register, and provided, further, that if such
person is a securities depositary, such payment may be made by such other means
in lieu of check as shall be agreed upon by the Company, the Trustee and such
person.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture and in the Officer's
Certificate establishing the terms of the Securities of this series.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture and Deed of Trust dated as of May 1, 2002 (herein,
together with any amendments or supplements thereto, called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and The Bank of New York, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture, for a statement of the property mortgaged, pledged
and held in trust, the nature and extent of the security, the conditions upon
which the Lien of the Indenture may be released and to the Indenture, Board
Resolutions and Officer's Certificate creating the series designated on the face
hereof, for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The acceptance of this Security shall be deemed to
constitute the consent and agreement by the Holder thereof to all of the terms
and provisions of the Indenture. This Security is one of the series designated
on the face hereof.
This Security is subject to redemption at the election of the Company,
in whole at any time or in part from time to time, at a redemption price as
calculated by the Company equal to the greater of
o 100% of the principal amount of the Securities of this series being
redeemed, or
o the sum of the present values of the remaining scheduled payments of
principal and interest on the Securities of this series being redeemed,
discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus
30 basis points,
plus, in each case, accrued interest on those Securities of this
series to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
2
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third business day preceding such redemption date, as set forth in the H. 15
Daily Update of the Federal Reserve Bank or (ii) if such release (or any
successor release) is not published or does not contain prices on such business
day, the Reference Treasury Dealer Quotation actually obtained by the Trustee
for such redemption date.
"H.15(519)" means the weekly statistical release entitled "H.15 (519)
Selected Interest Rates", or any successor publication, published by the Board
of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519) available
through the worldwide website of the Board of Governors of the Federal Reserve
System or any successor site or publication.
"Independent Investment Banker" means the Reference Treasury Dealer
appointed by the Company.
"Reference Treasury Dealer" means Merrill Lynch Government Securities,
Inc., and its successors; provided, however, that if the foregoing shall cease
to be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such redemption date.
The Company shall deliver to the Trustee before any Redemption Date
for the Securities of this series its calculation of the Redemption Price
applicable to such redemption. Except with respect to the obligations of the
Trustee expressly set forth in the foregoing definitions of "Comparable Treasury
Issue" and "Comparable Treasury Price," the Trustee shall be under no duty to
inquire into, may presume the correctness of, and shall be fully protected in
acting upon the Company's calculation of any Redemption Price of the Securities
of this series.
In lieu of stating the Redemption Price, notices of redemption of the
Securities of this series shall state substantially the following: "The
Redemption Price of the Securities of this series to be redeemed shall equal the
sum of (a) the greater of (i) 100% of the principal amount of such Securities of
this series, or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Senior Notes being redeemed,
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis
points, plus accrued interest on the principal amount hereof to the Redemption
Date."
3
Notice of redemption (other than at the option of the Holder) shall be
given by mail to Holders of Securities, not less than 30 days prior to the date
fixed for redemption, all as provided in the Indenture. As provided in the
Indenture, notice of redemption at the election of the Company as aforesaid may
state that such redemption shall be conditional upon the receipt by the
applicable Paying Agent or Agents of money sufficient to pay the principal of
and premium, if any, and interest, if any, on this Security on or prior to the
date fixed for such redemption; a notice of redemption so conditioned shall be
of no force or effect if such money is not so received and, in such event, the
Company shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a new
Security or Securities of this series of like tenor representing the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth in the Indenture.
The Indenture contains provisions for release of the Lien thereof upon
compliance with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
4
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000 in
excess thereof. As provided in the Indenture and subject to certain limitations
therein and herein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
and of authorized denominations, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company shall not be required to execute and the Security
Registrar shall not be required to register the transfer of or exchange of (a)
Securities of this series during a period of 15 days immediately preceding the
date notice is given identifying the serial numbers of the Securities of this
series called for redemption or (b) any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part. The Company shall not be required to make transfers or exchanges of the
Securities of this series for a period of 15 days next preceding an Interest
Payment Date.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
Each Holder shall be deemed to understand that the offer and sale of
the Securities of this series have not been registered under the Securities Act
and that the Securities of this series may not be offered or sold except as
permitted in the following sentence. Each Holder shall be deemed to agree, on
its own behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that if such Holder sells any Securities of this series,
such Holder will do so only (A) to the Company, (B) to a person whom it
reasonably believes is a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, (C) to an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) that, prior to such transfer, furnishes to the
Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Securities of this series, (D)
in an offshore transaction in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), or (F) pursuant to an effective
registration statement under the Securities Act, and each Holder is further
deemed to agree to provide to any person purchasing any of the Securities of
this series from it a notice advising such purchaser that resales of the
Securities of this series are restricted as stated herein.
Each Holder shall be deemed to understand that, on any proposed resale
of any Securities of this series pursuant to the exemption from registration
under Rule 144 under the Securities Act, any Holder making any such proposed
resale will be required to furnish to the Trustee and Company such
certifications, legal opinions and other information as the Trustee and Company
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions.
5
This Security 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),
except to the extent that the Trust Indenture Act shall be applicable and except
to the extent that the laws of the State of Texas shall mandatorily govern.
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or premium, if any, or interest on any Securities, or any
part thereof, or for any claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, stockholder, member,
officer or director, as such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through the Company or
a predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all the Securities are solely corporate obligations and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of the Indenture and the
issuance of the Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
ONCOR ELECTRIC DELIVERY COMPANY
By:____________________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK, as Trustee
By:____________________________________
Authorized Signatory
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