ONCOR ELECTRIC DELIVERY COMPANY
LLC
ESTABLISHING THE FORM AND CERTAIN
TERMS OF THE 5.95% SENIOR SECURED
NOTES DUE 2013, THE 6.80% SENIOR SECURED NOTES DUE 2018 AND THE
7.50%
SENIOR SECURED NOTES DUE 2038.
The undersigned,
John M. Casey, Treasurer of Oncor Electric Delivery Company LLC
(formerly TXU Electric Delivery Company (formerly Oncor Electric
Delivery Company)) (the “ Company ”), (all
capitalized terms used herein which are not defined herein but are
defined in the Indenture referred to below, shall have the meanings
specified in the Indenture), pursuant to a Board Resolution dated
February 19, 2008 and Sections 102, 201, 301, 303 and
707(c)(ii) of the Indenture, does hereby certify to The Bank of New
York Mellon (formerly The Bank of New York), as Trustee (the
“ Trustee ”), under the Indenture (For Unsecured
Debt Securities) of the Company dated as of August 1, 2002, as
supplemented and amended by Supplemental Indenture No. 1 dated
as of May 15, 2008 (“ Supplemental Indenture
No. 1 ”), between the Company and the Trustee (as
heretofore supplemented, the “ Indenture ”)
that:
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1.
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The
Securities of the fourth series to be issued under the Indenture
(the “ 2013 Notes ”) shall be initially issued
in a series designated “5.95% Senior Secured Notes due
2013”, the Securities of the fifth series to be issued under
the Indenture (the “ 2018 Notes ”) shall be
initially issued in a series designated “6.80% Senior Secured
Notes due 2018”, and the Securities of the sixth series to be
issued under the Indenture (the “ 2038 Notes ”,
and together with the 2013 Notes and the 2018 Notes, the “
Notes ”) shall be initially issued in a series
designated “7.50% Senior Secured Notes due 2038”; the
2013 Notes shall be in substantially the form set forth in
Exhibit A hereto, the 2018 Notes shall be in substantially the
form set forth in Exhibit B hereto, and the 2038 Notes shall
be in substantially the form set forth in Exhibit C
hereto;
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2.
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(A) The 2013 Notes shall be
initially authenticated and delivered in the aggregate principal
amount of $650,000,000 (the “ Initial 2013 Notes
”); provided, however, that the Company may, without the
consent of the Holders of the Initial 2013 Notes, create and issue
additional 2013 Notes ranking equally with, and otherwise identical
in all respects to, the Initial 2013 Notes (except for the issue
price therefor, the date from which interest first accrues thereon
and the first interest payment date therefor), which additional
2013 Notes shall form a single series with the Initial 2013
Notes;
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(B) The
2018 Notes shall be initially authenticated and delivered in the
aggregate principal amount of $550,000,000 (the “ Initial
2018 Notes ”); provided, however, that the Company may,
without the consent of the Holders of the Initial 2018 Notes,
create and issue additional 2018 Notes ranking equally with, and
otherwise identical in all respects to, the Initial 2018 Notes
(except for the issue price therefor, the date from which interest
first accrues thereon and the first interest payment date
therefor), which additional 2018 Notes shall form a single series
with the Initial 2018 Notes;
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(C) The
2038 Notes shall be initially authenticated and delivered in the
aggregate principal amount of $300,000,000 (the “ Initial
2038 Notes ”); provided, however, that the Company may,
without the consent of the Holders of the Initial 2038 Notes,
create and issue additional 2038 Notes ranking equally with, and
otherwise identical in all respects to, the Initial 2038 Notes
(except for the issue price therefor, the date from which interest
first accrues thereon and the first interest payment date
therefor), which additional 2038 Notes shall form a single series
with the Initial 2038 Notes;
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3.
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The
2013 Notes shall mature and the principal thereof shall be due and
payable together with all accrued and unpaid interest thereon on
September 1, 2013, the 2018 Notes shall mature and the
principal thereof shall be due and payable together with all
accrued and unpaid interest thereon on September 1, 2018, and
the 2038 Notes shall mature and the principal thereof shall be due
and payable together with all accrued and unpaid interest thereon
on September 1, 2038, and the Company shall not have any right
to extend the Maturity of the Notes as contemplated in Section
301(d) of the Indenture;
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4.
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The
Notes shall bear interest as provided in the applicable form
thereof set forth in Exhibits A, B and C hereto; the Interest
Payment Dates for the Notes shall be March 1 and September 1 of
each year, commencing March 1, 2009;
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5.
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Each installment of interest on a
Note shall be payable as provided in the applicable form thereof
set forth in Exhibits A, B and C hereto; the Company shall not have
any right to extend any interest payment periods for the Notes as
contemplated in Section 301(e) of the Indenture;
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6.
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The
principal of, premium, if any, each installment of interest on and
Additional Interest (as defined below), if any, on the Notes shall
be payable at, and registration of transfers and exchanges in
respect of the Notes may be effected at, the office or agency of
the Company in The City of New York; and notices and demands to or
upon the Company in respect of the Notes and the Indenture may be
served at the office or agency of the Company in The City of New
York; the Corporate Trust Office of the Trustee will initially be
the agency of the Company for such payment, registration and
registration of transfers and exchanges and service of notices and
demands, and the Company hereby appoints the Trustee as its agent
for all such purposes; and the Trustee will initially be the
Security Registrar and the Paying Agent for the Notes; provided,
however, that the Company reserves the right to establish or
change, by one or more Officer’s Certificates, any such
office or agency and such agent.
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7.
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The
Regular Record Date for the interest payable on any given Interest
Payment Date with respect to the Notes shall be the 15
th
calendar day before such
Interest Payment Date;
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8.
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The
Notes of each series are subject to redemption as provided in the
applicable form thereof set forth in Exhibits A, B and C
hereto;
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9.
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The
Notes of each series are “Benefitted Securities” and
shall have the benefit of the covenant of the Company contained in
Section 707 of the Indenture and, pursuant to
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Section 707(b)(i) of the
Indenture, the Notes are and shall be secured equally and ratably
with the Secured Debt under the Indenture and the Additional
Secured Debt (as defined in Supplemental Indenture No. 1)
pursuant to, and subject to the terms and conditions of, the Deed
of Trust, Security Agreement and Fixture Filing, dated as of
May 15, 2008 (the “ Deed of Trust ”), by
the Company to and for the benefit of The Bank of New York Mellon
(formerly The Bank of New York) as collateral agent and trustee
thereunder;
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10.
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The
Notes shall be issuable in denominations of $2,000 and integral
multiples of $1,000 in excess thereof;
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11.
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No
service charge shall be made for the registration of transfer or
exchange of the Notes; provided, however, that the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with the
exchange or transfer;
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12.
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The
Notes shall be initially issued in global form registered in the
name of Cede & Co. (as nominee for The Depository Trust Company
(“ DTC ”)); provided, that the Company reserves
the right to provide for another depositary, registered as a
clearing agency under the Exchange Act, to act as depositary for
the global Notes (DTC and any such successor depositary, and any
successor to any thereto, the “ Depositary ”);
beneficial interests in Notes issued in global form may not be
exchanged in whole or in part for individual certificated Notes in
definitive form, and no transfer of a global Note in whole or in
part may be registered in the name of any Person other than the
Depositary or its nominee except that (i) if the Depositary
(A) has notified the Company that it is unwilling or unable to
continue as depositary for the global Notes or (B) has ceased
to be a clearing agency registered under the Exchange Act and, in
either case, a successor depositary for such global Notes has not
been appointed, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Notes, will authenticate and deliver Notes in definitive
certificated form in an aggregate principal amount equal to the
principal amount of the global Notes representing such Notes in
exchange for such global Notes, such definitive Notes to be
registered in the names provided by the Depositary; each global
Note (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the outstanding Notes to
be represented by such global Note (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary, its nominee, any
custodian for the Depositary or otherwise pursuant to the
Depositary’s instruction and (iv) shall bear a legend
restricting the transfer of such global Note to any Person other
than the Depositary or its nominee; none of the Company, the
Trustee, any Paying Agent, any Security Registrar or any
Authenticating Agent will have any responsibility or liability for
any aspect of the records relating to, or payments made on account
of, or transfers of, beneficial ownership interests in a global
Note or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests; and the Notes in
global form will contain restrictions on transfer, substantially as
described in the forms set forth in Exhibits A, B and C
hereto;
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13.
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The
Notes will be initially issued pursuant to Section 4(2) of the
Securities Act of 1933, as amended (the “ Securities
Act ”). Each Note, whether in a global form or in
a
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certificated
form, shall bear the non-registration legend and the registration
rights legend in substantially the form set forth in such form,
unless otherwise agreed to by the Company, such agreement to be
confirmed in writing to the Trustee. DTC or its nominee shall be
the Holder of such global Note for all purposes under the Indenture
and the Notes, and beneficial owners with respect to such global
Note shall hold their interests pursuant to applicable procedures
of the Depositary. The Company, the Trustee and the Security
Registrar shall be entitled to deal with the Depositary for all
purposes of the Indenture relating to such global Note (including
the payment of principal, premium, if any, and interest, and the
giving of instructions or directions by or to the beneficial owners
of such global Note) as the sole Holder of such global Note and
shall have no obligations to the beneficial owners thereof. Nothing
in the Indenture, the Notes or this certificate shall be construed
to require the Company to register any Notes under the Securities
Act, unless otherwise expressly agreed by the Company, confirmed in
writing to the Trustee, or to make any transfer of such Notes in
violation of applicable law. The Company has entered into a
registration rights agreement with the initial purchasers of the
Notes pursuant to which, among other things, the Notes may be
exchanged for notes registered under the Securities Act (the
“Exchange Notes”). The Exchange Notes shall be in
substantially the form of Exhibit A, with respect to the 2013
Notes, Exhibit B, with respect to the 2018 Notes, and
Exhibit C, with respect to the 2038 Notes, but, in each case,
without the non-registration legend, the registration rights legend
and the Certificate of Transfer. The Trustee, at the request of the
Company, shall authenticate and deliver Exchange Notes in exchange
for an equal principal amount of Notes of such series;
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14.
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It
is contemplated that beneficial interests in Notes owned by
“qualified institutional buyers” (as defined in
Rule 144A under the Securities Act) (“ QIBs
”) or sold to QIBs in reliance upon Rule 144A under the
Securities Act will be represented by one or more separate
certificates in global form registered in the name of Cede &
Co., as registered owner and as nominee for DTC; beneficial
interests in Notes sold to foreign purchasers pursuant to
Regulation S under the Securities Act will be evidenced by one
or more separate certificates in global form (each a “
Regulation S Global Certificate ”) and will be
registered in the name of Cede & Co., as registered owner and
as nominee for DTC for the accounts of Euroclear and Clearstream
Banking; prior to the 40th day after the date of initial issuance
of the Notes, beneficial interests in a Regulation S Global
Certificate may be held only through Euroclear or Clearstream
Banking other than beneficial interests sold in accordance with
Rule 144A;
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In
connection with any transfer of Notes, or of any transfer of a
beneficial interest in one global Note to another global Note, as
the case may be, the Trustee, the Security Registrar and the
Company shall be under no duty to inquire into, may conclusively
presume the correctness of, and shall be fully protected in relying
upon the certificates and other information (in the forms attached
hereto as Exhibits A, B and C, for use in connection with the
transfer of the Notes in certificated form, or Exhibit D, for
use in connection with the transfer of beneficial interests in one
certificate in global form to another certificate or to a Note in
certificated form, or otherwise) received from the Holders and any
transferees of any Notes, or from the transferors or transferees of
any beneficial interest in a global Note transferred to another
global Note, as the case may be, regarding the validity, legality
and due authorization of any such transfer, the
eligibility
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of the
transferee to receive such Note or such beneficial interest, as the
case may be, and any other facts and circumstances related to such
transfer;
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15.
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None of the Company, the Trustee or
the Security Registrar shall have any liability for any acts or
omissions of the Depositary, for any Depositary records of
beneficial interests, for any transactions between the Depositary
or any participant member of the Depositary and/or beneficial
owners, for any transfers of beneficial interests in the Notes, or
in respect of any transfers effected by the Depositary or by any
participant member of the Depositary or any beneficial owner of any
interest in any Notes held through any such participant member of
the Depositary;
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16.
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If
the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Notes, or any portion of the
principal amount thereof, as contemplated by Section 801 of
the Indenture, the Company shall not deliver an Officer’s
Certificate described in clause (z) in the first paragraph of said
Section 801 unless the Company shall also deliver to the
Trustee, together with such Officer’s Certificate,
either:
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(A) an
instrument wherein the Company, notwithstanding the satisfaction
and discharge of its indebtedness in respect of such Notes, shall
assume the obligation (which shall be absolute and unconditional)
to irrevocably deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 801), if any,
or any combination thereof, at such time or times, as shall be
necessary, together with the money and/or Eligible Obligations
theretofore so deposited, to pay when due the principal of and
premium, if any, and interest due and to become due on such Notes
or portions thereof, all in accordance with and subject to the
provisions of said Section 801; provided, however, that such
instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall be subject to the delivery
to the Company by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public accountant of
nationally recognized standing, selected by the Trustee, showing
the calculation thereof; or
(B) an
Opinion of Counsel to the effect that, as a result of a change in
law occurring after the date of this certificate, the Holders of
such Notes, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the
Company’s indebtedness in respect thereof and will be subject
to United States federal income tax on the same amounts, at the
same times and in the same manner as if such satisfaction and
discharge had not been effected.
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17.
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The
Eligible Obligations with respect to the Notes of each series shall
be Government Obligations.
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18.
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The
2013 Notes shall have such other terms and provisions as are
provided in the form thereof set forth in Exhibit A hereto,
the 2018 Notes shall have such other terms and provisions as are
provided in the form thereof set forth in Exhibit B hereto,
and the 2038
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Notes shall
have such other terms and provisions as are provided in the form
thereof set forth in Exhibit C hereto;
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19.
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No
Event of Default under the Indenture has occurred or is occurring;
and to the knowledge of the undersigned, (a) no Event of
Default has occurred and is continuing and (b) no event has
occurred and is continuing which entitles the Secured Parties (as
defined in the Deed of Trust) under the Deed of Trust, or any of
them, to accelerate the maturity of the indebtedness secured
thereby;
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20.
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The
aggregate principal amount of indebtedness issuable under and
secured by the Deed of Trust is $6,350,000,000 (after giving effect
to the issuance of the Notes and assuming all amounts are fully
drawn under the commitment under the Credit Agreement (as defined
in the Deed of Trust)). The aggregate principal amount of
indebtedness now proposed to be issued under and secured by the
Deed of Trust (viz., the Notes) is $1,500,000,000;
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21.
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The
undersigned has read all of the covenants and conditions contained
in the Indenture, and the definitions in the Indenture relating
thereto, relating to the issuance and authentication and delivery
of the Notes and to the creation or existence of Secured Debt
pursuant to Section 707(a) and Section 707(b) of the Indenture, and
in respect of compliance with which this certificate is
made;
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22.
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The
statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the
undersigned with officers and employees of the Company familiar
with the matters set forth herein;
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23.
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In
the opinion of the undersigned, he has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenants and conditions have
been complied with; and
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24.
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In
the opinion of the undersigned, such conditions and covenants, and
all conditions precedent provided for in the Indenture (including
covenants compliance with which constitutes a condition precedent)
relating to the authentication and delivery of the Notes as
requested in the accompanying Company Order and to the creation or
existence of Secured Debt pursuant to Section 707(a) and Section
707(b) of the Indenture, have been complied with.
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IN WITNESS
WHEREOF, I have executed this Officer’s Certificate this 8th
day of September, 2008.
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By:
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/s/ John M.
Casey
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John M. Casey,
Treasurer
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[UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC ”), TO ONCOR ELECTRIC DELIVERY COMPANY LLC 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.]
[non-registration legend]
“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”). THE HOLDER HEREOF,
BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF ONCOR
ELECTRIC DELIVERY COMPANY LLC (THE “COMPANY”) THAT THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER
THAN (A) (1) TO THE COMPANY, (2) IN A TRANSACTION
ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
(“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY), (5) IN ACCORDANCE WITH ANOTHER
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR IN ANY OTHER APPLICABLE JURISDICTION. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE COMPANY
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THAT IT IS
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF, OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2) OF RULE 902 UNDER, REGULATION S UNDER THE
SECURITIES ACT.”
[registration rights
legend]
The Holder of this
Security, by acceptance hereof, will be deemed to have agreed to be
bound by the provisions of the Registration Rights Agreement dated
September 8, 2008, among the Company and the initial
purchasers of this Security.
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[144A Global Certificate:
____________]
[Regulation S Global
Certificate: ____________]
[Exchange Notes:
____________]
ONCOR ELECTRIC DELIVERY COMPANY
LLC
5.95% SENIOR SECURED NOTES DUE
2013
ONCOR ELECTRIC
DELIVERY COMPANY LLC, a limited liability company duly organized
and existing under the laws of the State of Delaware (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 September 1, 2013, and to pay interest on said
principal sum semi-annually in arrears on March 1 and September 1
of each year commencing March 1, 2009 (each an “Interest
Payment Date”) at the rate of 5.95% 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
September 8, 2008, 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 with
respect to the day on which the Securities mature. If the Company
does not comply with certain of its obligations under the
registration rights agreement dated September 8, 2008 between
the Company and the parties named therein (the “Registration
Rights Agreement”), this Security shall, in accordance with
Section 2(e) of the Registration Rights Agreement, bear additional
interest (“Additional Interest”) in addition to the
interest otherwise provided for hereunder. For purposes of this
Security, the term “interest” shall be deemed to
include any such Additional Interest. 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 the 15
th calendar day before such 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
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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 (For Unsecured Debt
Securities) dated as of August 1, 2002 (herein, together with
any amendments or supplements thereto, including Supplemental
Indenture No. 1, dated as of May 15, 2008, called the
“Indenture”, which term shall have the meaning assigned
to it in such instrument), between the Company and The Bank of New
York Mellon (formerly 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, 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, prior to maturity, at a
redemption price as calculated by the Company equal to the greater
of:
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100% of the principal amount of the
Notes of this series being redeemed, or
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the
sum of the present values of the remaining scheduled payments of
principal and interest (excluding the portion of any such interest
accrued to the redemption date) on the Notes 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 50 basis points,
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plus, in each
case, accrued interest on those Notes of this series to the
redemption date.
4
“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.
“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 Notes 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
Notes.
“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 a primary U.S. Government securities
dealer in New York City (a “Primary Treasury Dealer”)
appointed by the Company.
“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.
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.
5
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 obligations of
the Company with respect to the Notes are initially secured by a
lien granted pursuant to the Deed of Trust, Security Agreement and
Fixture Filing, dated as of May 15, 2008 (the “Deed of
Trust”), by the Company to and for the benefit of The Bank of
New York Mellon (formerly The Bank of New York), as collateral
agent and trustee thereunder. The Deed of Trust contains provisions
for the 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.
6
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 $2,000 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 resold, pledged
or otherwise transferred other than 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 resells, pledges or otherwise transfers
any Securities of this series, such Holder will do so only
(A) to the Company, (B) in a transaction entitled to an
exemption from registration provided by Rule 144 under the
Securities Act, (C) so long as Securities of this series are
eligible for resale pursuant to Rule 144A under the Securities
Act, to a Person whom such Holder reasonably believes is a
“qualif
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