AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 1, 1997
REGISTRATION NO. 33-83976
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TEXAS UTILITIES ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
TEXAS 75-1837355
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
ENERGY PLAZA, 1601 BRYAN STREET
DALLAS, TEXAS 75201
(214) 812-4600
(Address, including zip code, and telephone number, including area code,
of registrant s principal executive office)
ROBERT A. WOOLDRIDGE, ESQ. PETER B. TINKHAM, ESQ.ROBERT J. REGER, JR., ESQ.
WORSHAM, FORSYTHE SECRETARY REID & PRIEST LLP
& WOOLDRIDGE, L.L.P. TEXAS UTILITIES 40 WEST 57TH STREET
ENERGY PLAZA, 1601 BRYAN ELECTRIC COMPANY NEW YORK, NEW YORK 10019
STREET ENERGY PLAZA, 1601 (212) 603-2000
DALLAS, TEXAS 75201 BRYAN STREET
(214) 979-3000 DALLAS, TEXAS 75201
(214) 812-4600
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
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IT IS RESPECTFULLY REQUESTED THAT THE COMMISSION SEND
COPIES OF ALL NOTICES, ORDERS AND COMMUNICATIONS TO:
STEPHEN K. WAITE, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
(212) 858-1000
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE PRICE OFFERING REGISTRA-
REGISTERED REGISTERED PER UNIT PRICE TION FEE
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First Mortgage Bonds . . (1)(3) (2) (1)(2)(3) N/A
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Debt Securities . . . . . (1)(4) (2) (1)(2)(4) N/A
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Total . . . . . . . . $448,850,000 (2) $448,850,000 $172,415(5)
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(1) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Post-
Effective Amendment No. 1 to Registration Statement No. 33-
83976 exceed $448,850,000. If any such securities are
issued at an original issue discount, then the aggregate
initial offering price as so discounted shall not exceed
$448,850,000, notwithstanding that the stated principal
amount of such securities may exceed such amount.
(2) The proposed maximum initial offering price per unit will be
determined, from time to time, by the registrant in
connection with the issuance by the registrant of the
securities registered hereunder.
(3) Subject to footnote (1), there are being registered
hereunder an indeterminate principal amount of First
Mortgage Bonds as may be sold, from time to time, by the
registrant.
(4) Subject to footnote (1), there are being registered
hereunder an indeterminate principal amount of Debt
Securities as may be sold, from time to time, by the
registrant.
(5) Registration fee paid with filing of Registration Statement
on Form S-3 on September 15, 1994.
<PAGE>
SUBJECT TO COMPLETION, DATED __________, 1997
PROSPECTUS
$448,850,000
TEXAS UTILITIES ELECTRIC COMPANY
FIRST MORTGAGE BONDS
DEBT SECURITIES
Texas Utilities Electric Company (Company) intends to offer
from time to time up to $448,850,000 in aggregate principal
amount of (i) its First Mortgage Bonds (New Bonds), (ii)
unsecured debt securities of the Company consisting of
debentures, notes or other unsecured evidence of indebtedness
(Debt Securities), or (iii) any combination of the foregoing, in
one or more series at prices and on terms to be determined at the
time of sale. New Bonds and Debt Securities are collectively
referred to herein as "Securities."
For each issue of Securities for which this Prospectus is
being delivered (Offered Bonds or Offered Debt Securities, as the
case may be, and, together, Offered Securities) there will be an
accompanying Prospectus Supplement (Prospectus Supplement) that
sets forth, without limitation and to the extent applicable, the
specific designation, aggregate principal amount, denomination,
maturity, premium, if any, rate of interest (which may be fixed
or variable) or method of calculation thereof, time of payment of
interest, any terms for redemption, any sinking fund provisions,
the initial public offering price, the principal amounts, if any,
to be purchased by underwriters and any other special terms of
the Offered Securities.
The Company may sell the Securities through underwriters,
dealers or agents, or directly to one or more of a limited number
of purchasers. If any agents of the Company or any underwriters
are involved in the sales of the Offered Securities, the names of
such agents or such underwriters and any applicable commissions
or discounts will be set forth in the Prospectus Supplement. See
PLAN OF DISTRIBUTION for possible indemnification arrangements
for underwriters and agents.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1997.
Information contained herein is subject to completion or
amendment. A post-effective amendment to the registration
statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be
sold nor may offers to buy be accepted prior to the time the
post-effective amendment to the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Securities and Exchange Commission (Commission) pursuant to the
Securities Exchange Act of 1934, as amended (1934 Act), are
incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December
31, 1996 (1996 10-K).
2. Quarterly Report on Form 10-Q for the quarter ended March
31, 1997.
3. Current Report on Form 8-K, dated March 31, 1997.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and prior to
the termination of the offering hereunder shall be deemed to be
incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents; provided,
however, that the documents enumerated above or subsequently
filed by the Company pursuant to Section 13 of the 1934 Act prior
to the filing with the Commission of the Company's most recent
Annual Report on Form 10-K shall not be incorporated by reference
in this Prospectus or be a part hereof from and after the filing
of such Annual Report on Form 10-K. The documents which are
incorporated by reference in this Prospectus are sometimes
hereinafter referred to as the "Incorporated Documents."
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which is deemed to be
incorporated by reference herein or in the Prospectus Supplement
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO
EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF
THIS PROSPECTUS HAS BEEN DELIVERED, UPON WRITTEN OR ORAL REQUEST
OF ANY SUCH PERSON, A COPY OF ANY AND ALL OF THE INCORPORATED
DOCUMENTS WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS
PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS
(UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO SUCH DOCUMENTS). REQUESTS SHOULD BE DIRECTED TO: SECRETARY,
TEXAS UTILITIES ELECTRIC COMPANY, ENERGY PLAZA, 1601 BRYAN
STREET, DALLAS, TEXAS 75201, TELEPHONE NUMBER (214) 812-4600.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the 1934 Act and in accordance therewith files reports, proxy
statements and other information with the Commission. Such
reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following
Regional Offices of the Commission: Chicago Regional Office, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511;
and New York Regional Office, 7 World Trade Center, Suite 1300,
New York, New York 10048. Copies of such material can also be
obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, the Commission maintains a World Wide Web
site (http://www.sec.gov) that contains reports and other
information filed by the Company. Certain Depositary Shares
representing fractional interests in shares of cumulative
preferred stock of the Company are listed on the New York Stock
Exchange, where reports and other information concerning the
Company may be inspected.
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Securityholders of the Company may obtain, upon request,
copies of an Annual Report on Form 10-K containing financial
statements as of the end of the most recent fiscal year audited
and reported upon (with an opinion expressed) by independent
auditors.
THE COMPANY
The Company was incorporated under the laws of the
State of Texas in 1982 and has perpetual existence under the
provisions of the Texas Business Corporation Act. The Company is
an electric utility engaged in the generation, purchase,
transmission, distribution and sale of electric energy wholly
within the State of Texas. The principal executive offices of the
Company are located at Energy Plaza, 1601 Bryan Street, Dallas,
Texas 75201; the telephone number is (214) 812-4600.
The Company is the principal subsidiary of Texas
Utilities Company (Texas Utilities). The other electric utility
subsidiaries of Texas Utilities are Southwestern Electric Service
Company, which is engaged in the purchase, transmission,
distribution and sale of electric energy in ten counties in the
eastern and central parts of Texas with a population estimated at
126,900, and Texas Utilities Australia Pty. Ltd., owner of
Eastern Energy Limited, which is engaged in the purchase,
distribution, marketing and sale of electric energy to
approximately 481,000 customers in the State of Victoria,
Australia. Texas Utilities also has three other subsidiaries
which perform specialized functions within the Texas Utilities
Company system: Texas Utilities Fuel Company owns a natural gas
pipeline system, acquires, stores and delivers fuel gas and
provides other fuel services at cost for the generation of
electric energy by the Company; Texas Utilities Mining Company
owns, leases and operates fuel production facilities for the
surface mining and recovery of lignite at cost for the generation
of electric energy by the Company and Texas Utilities Services
Inc. provides financial, accounting, information technology,
environmental services, customer services, personnel, procurement
and other administrative services at cost. In April 1996, Texas
Utilities announced that it had entered into a merger agreement
with ENSERCH Corporation (ENSERCH). Under the terms of the
agreement, Lone Star Gas Company and Lone Star Pipeline Company,
the local distribution and pipeline divisions of ENSERCH, and
other businesses, excluding Enserch Exploration Inc., a
subsidiary of ENSERCH, will be acquired by a new holding company,
which will be named Texas Utilities Company and will own all of
the common stock of ENSERCH and Texas Utilities. Consummation
of the transaction is subject, among other matters, to the
receipt of various regulatory authorizations, some of which
have not yet been obtained.
The Company's service area covers the north central,
eastern and western parts of Texas, with a population estimated
at 5,890,000 about one-third of the population of Texas.
Electric service is provided in 91 counties and 372 incorporated
municipalities, including Dallas, Fort Worth, Arlington, Irving,
Plano, Waco, Mesquite, Grand Prairie, Wichita Falls, Odessa,
Midland, Carrollton, Tyler, Richardson and Killeen. The area is a
diversified commercial and industrial center with substantial
banking, insurance, communications, electronics, aerospace,
petrochemical and specialized steel manufacturing, and automotive
and aircraft assembly. The territory served includes major
portions of the oil and gas fields in the Permian Basin and East
Texas, as well as substantial farming and ranching sections of
the State. It also includes the Dallas-Fort Worth International
Airport and the Alliance Airport.
USE OF PROCEEDS
The Company is offering hereby a maximum of $448,850,000
aggregate principal amount of Securities. The net proceeds to be
received by the Company from the sale of the Securities, together
with funds from operations, are expected to be used for the
redemption or repurchase of certain of its outstanding debt and
preferred stock, and may also be used to meet expenditures for
its construction program and for other corporate purposes,
including the repayment of short-term borrowings incurred for
similar purposes and outstanding at the time of any such sale.
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Proceeds may be temporarily invested in short-term instruments
pending their application to the foregoing purposes.
Reference is made to the Incorporated Documents with respect
to the Company's estimated capital expenditures and its general
financing plan and capabilities. Reference is also made to the
Prospectus Supplement applicable to each series of Offered
Securities.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the years
ended December 31, 1992 through 1996 and the twelve months ended
March 31, 1997 was 2.48, 2.00, 2.45, 2.02, 2.95 and 2.94,
respectively. The computation of the ratio of earnings to fixed
charges does not include interest payments made by affiliated
companies on senior notes, which are recovered currently through
the fuel component of rates.
DESCRIPTION OF NEW BONDS
General. The New Bonds are to be issued under the Company's
Mortgage and Deed of Trust, dated as of December 1, 1983, as
supplemented, with The Bank of New York, Trustee (Mortgage
Trustee), referred to herein as the "Mortgage." Whenever
particular provisions or defined terms in the Mortgage are
referred to under this DESCRIPTION OF NEW BONDS, such provisions
or defined terms are incorporated by reference herein.
As herein summarized, bonds now or hereafter issued under
the Mortgage (Bonds) are, or will be, secured by a first mortgage
Lien on certain property of the Company. Bonds issued under the
Mortgage are equally secured and pari passu.
The Mortgage is an exhibit to the Registration Statement.
The statements herein concerning the Mortgage, the New Bonds and
the Bonds are merely an outline and do not purport to be
complete. Such statements include terms defined in the Mortgage
and are qualified in their entirety by reference to the Mortgage.
The New Bonds will be issuable in the form of fully
registered bonds in denominations of $1,000 and any multiple
thereof, unless otherwise specified in the Prospectus Supplement.
The New Bonds may be transferred without charge, other than for
applicable taxes or other governmental charges, at The Bank of
New York, New York, New York.
Maturity and Interest Payments. Reference is made to the
Prospectus Supplement for the date or dates on which the Offered
Bonds will mature; the rate or rates per annum at which the
Offered Bonds will bear interest; and the times at which such
interest will be payable.
Redemption, Repayment or Purchase of New Bonds. The New
Bonds may be redeemable, in whole or in part, on not less than 30
days' notice either at the option of the Company or as required
by the Mortgage.
Reference is made to the Prospectus Supplement for the
redemption terms, if any, and other specific terms of the Offered
Bonds.
If, at the time notice of redemption is given, the
redemption moneys are not held by the Mortgage Trustee, the
redemption may be made subject to their receipt on or before the
date fixed for redemption and such notice shall be of no effect
unless such moneys are so received.
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While the Mortgage contains provisions for the maintenance
of the Mortgaged and Pledged Property, the Mortgage does not
permit redemption of Bonds pursuant to these provisions. There is
no sinking fund under the Mortgage.
Cash deposited under any provisions of the Mortgage may be
applied (with certain exceptions) to the purchase or redemption
of Bonds of any series. (Mortgage, Arts. XII and XIII.)
In addition to or in lieu of any terms of redemption, the
Company may grant holders of a particular series of New Bonds the
right to tender their bonds prior to maturity to the Company for
repayment at stated prices and at stated times. Reference is made
to the Prospectus Supplement for the terms of any such right to
tender New Bonds.
Security and Priority. The Bonds issued under the Mortgage
will be secured by a first mortgage Lien of the Mortgage.
Substantially all of the Company's property is subject to the
Lien of the Mortgage.
The Lien of the Mortgage is subject to Excepted
Encumbrances, including tax and construction liens, purchase
money liens and certain other exceptions.
There are excepted from the Lien of the Mortgage all cash
and securities (except those specifically deposited); equipment,
materials or supplies held for sale or other disposition; any
fuel and similar consumable materials and supplies; automobiles,
other vehicles, aircraft and vessels; timber, minerals, mineral
rights and royalties; receivables, contracts, leases and
operating agreements; electric energy, gas, water, steam, ice and
other products for sale, distribution or other use; natural gas
wells; and gas transportation lines or other property used in the
sale of natural gas to customers or to a natural gas distribution
or pipeline company, up to the point of connection with any
distribution system.
The Mortgage contains provisions subjecting after-acquired
property to the Lien thereof. These provisions may be limited, at
the option of the Company, in the case of consolidation, merger
or sale of substantially all of the Company's assets. (Mortgage,
Sec. 18.03.) In addition, after-acquired property may be subject
to purchase money mortgages and other liens or defects in title.
The Mortgage provides that the Mortgage Trustee shall have a
lien upon the mortgaged property, prior to the Bonds, for the
payment of its reasonable compensation and expenses and for
indemnity against certain liabilities. (Mortgage, Sec. 19.09.)
Issuance of Additional Bonds. The maximum principal amount
of Bonds which may be issued under the Mortgage is not limited.
Bonds of any series may be issued from time to time on the basis
of: (1) 70% of qualified Property Additions after adjustments to
offset retirements; (2) retirement of Bonds or certain prior lien
bonds; and/or (3) deposits of cash. With certain exceptions in
the case of (2) above, the issuance of Bonds is subject to
Adjusted Net Earnings of the Company (before income taxes) being,
for 12 out of the preceding 15 months, equal to at least twice
the Annual Interest Requirements on all Bonds at the time
outstanding, including the additional issue and all other
indebtedness of prior rank. In general, interest on variable
interest bonds, if any, is calculated using the average rate in
effect during such 12 month period.
Property Additions generally include electric, gas, steam
and/or hot water utility property but not fuel, securities,
automobiles, other vehicles or aircraft, or property used
principally for the production or gathering of natural gas.
Unfunded net Property Additions, at cost, of approximately
$6,838,000,000 were available under the Mortgage as of April 30,
1997. Up to approximately $4,787,000,000 aggregate principal
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amount of Bonds could be issued based on such Property Additions.
In addition, approximately $1,738,000,000 aggregate principal
amount of Bonds could be issued on the basis of Bonds that have
been retired, subject, where applicable, to the earnings test and
other requirements of the Mortgage.
The issuance of Bonds on the basis of Property Additions
subject to prior liens is restricted. (Mortgage, Secs. 1.04 to
1.07 and 3.01 to 7.01.)
Release and Substitution of Property. Property subject to
the Lien of the Mortgage may be released upon the basis of: (1)
the deposit of cash or, to a limited extent, purchase money
mortgages, (2) Property Additions, after making adjustments for
certain prior lien bonds outstanding against Property Additions,
and/or (3) waiver of the right to issue Bonds. Cash may be
withdrawn upon the bases stated in (2) and (3) above. When
property released is not funded property, Property Additions used
to effect the release may be available as credits under the
Mortgage. Similar provisions are in effect as to cash proceeds of
such property. The Mortgage contains special provisions with
respect to certain prior lien bonds deposited and disposition of
moneys received on deposited prior lien bonds. (Mortgage, Secs.
1.05, 7.02, 7.03, 9.05, 10.01 to 10.04 and 13.03 to 13.09.)
Dividend Restrictions. The Mortgage provides that the
Company may declare or pay dividends (other than dividends
payable solely in shares of its common stock) on any shares of
its common stock only out of the unreserved and unrestricted
retained earnings of the Company and will not make any such
declaration or payment when the Company is insolvent, or when the
payment thereof would render the Company insolvent. (Mortgage,
Sec. 9.07.) The amount restricted is subject to being increased
or decreased on the basis of various factors, and any restricted
retained earnings can be otherwise used by the Company. Reference
is made to the Incorporated Documents for information relating to
other restrictions.
Special Provisions for Retirement of Bonds. If mortgaged
property is condemned or sold (other than in a project to be
jointly owned by the Company and others) to any governmental
authority resulting in the receipt of $50,000,000 or more as
proceeds, the Company (subject to certain conditions) must apply
such proceeds, less certain deductions, to the retirement of
Bonds. (Mortgage, Sec. 9.14.)
Modification. The rights of bondholders may be modified
with the consent of holders of 60% of the Bonds, or, if less than
all series of Bonds are adversely affected, the consent of the
holders of 60% of the Bonds adversely affected and (unless Bonds
issued prior to 1989 are retired or the holders thereof otherwise
consent) of the holders of a majority of all Bonds. In general,
no modification of the terms of payment of principal, premium, if
any, or interest and no modification affecting the Lien or
reducing the percentage required for modification is effective
against any bondholder without such holder's consent. (Mortgage,
Art. XXI.)
Defaults and Notice Thereof. Defaults are defined in the
Mortgage as: default in payment of principal; default for 60 days
in payment of interest or an installment of any fund required to
be applied to the purchase or redemption of any Bonds; default in
payment of principal or interest with respect to certain prior
lien bonds; certain events in bankruptcy, insolvency or
reorganization; and default in other covenants for 90 days after
notice. (Mortgage, Sec. 15.01.) The Mortgage Trustee may withhold
notice of default (except in the case of a default in the payment
of principal, interest or an installment of any fund required to
be applied to the purchase or redemption of any Bonds) if it
determines that it is in the best interest of the bondholders.
(Mortgage, Sec. 15.02.)
The Mortgage Trustee or the holders of 25 % of the Bonds may
declare the principal and interest due and payable on Default,
but a majority may annul such declaration if such Default has
been cured. (Mortgage, Sec. 15.03.) No holder of Bonds may
enforce the Lien of the Mortgage without giving the Mortgage
Trustee written notice of a Default and unless the holders of 25
% of the Bonds have requested the Mortgage Trustee to act and
have offered it reasonable opportunity to act and indemnity
satisfactory to it against the costs, expenses and liabilities to
be incurred thereby and the Mortgage Trustee shall have failed to
act. (Mortgage, Sec. 15.16.) The holders of a majority of the
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Bonds may direct the time, method and place of conducting any
proceedings for any remedy available to the Mortgage Trustee or
exercising any trust or power conferred on the Mortgage Trustee.
(Mortgage, Sec. 15.07.) The Mortgage Trustee is not required to
risk its funds or incur personal liability if there is reasonable
ground for believing that repayment is not reasonably assured.
(Mortgage, Sec. 19.08.)
Evidence to be Furnished to the Mortgage Trustee.
Compliance with Mortgage provisions is evidenced by written
statements of Company officers or persons selected or paid by the
Company. In certain cases, opinions of counsel and certification
of an engineer, accountant, appraiser or other expert (who in
some cases must be independent) must be furnished. The Company
must give the Mortgage Trustee an annual statement as to whether
or not the Company has fulfilled its obligations under the
Mortgage throughout the preceding calendar year.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued in one or more series
under an Indenture or Indentures (each an Indenture) between the
Company and The Bank of New York or other financial institutions
to be named, as Trustee (each an Indenture Trustee), which is
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. The following description of the terms
of the Debt Securities does not purport to be complete and is
qualified in its entirety by reference to (i) the Indenture and
(ii) one or more officer's certificates establishing the Debt
Securities to which a form of Debt Security is attached.
Whenever particular provisions or defined terms in the Indenture
are referred to under this DESCRIPTION OF DEBT SECURITIES, such
provisions or defined terms are incorporated by reference herein.
General. The Indenture provides for the issuance of
debentures, notes or other unsecured evidence of indebtedness by
the Company (each a Debt Security) in an unlimited amount from
time to time. All Debt Securities will be unsecured obligations
of the Company. All Debt Securities issued under the Indenture
will rank equally and ratably with all other Debt Securities
issued under the Indenture. The Indenture does not limit other
unsecured debt. The Company's financial statements included in
the Incorporated Documents show the amount of such other debt and
of the Company's First Mortgage Bonds Outstanding at the date of
such statements. See the Prospectus Supplement applicable to
each series of Offered Debt Securities.
The applicable Prospectus Supplement or Prospectus
Supplements will describe the following terms of the Debt
Securities: (1) the title of the Debt Securities; (2) any limit
upon the aggregate principal amount of the Debt Securities; (3)
the date or dates on which the principal of the Debt Securities
is payable or the method of determination thereof; (4) the rate
or rates, if any, or the method by which such rate will be
determined, at which the Debt Securities will bear interest, if
any, the date or dates from which any such interest will accrue,
the Interest Payment Dates on which any such interest will be
payable and the Regular Record Date for any interest payable on
any Interest Payment Date and the Person or Persons to whom
interest on such Debt Securities will be payable on any Interest
Payment Date, if other than the Persons in whose names such Debt
Securities are registered at the close of business on the Regular
Record Date for such interest; (5) the place or places where,
subject to the terms of the Indenture as described below under
Payment and Paying Agents, the principal of and premium, if any,
and interest on the Debt Securities will be payable and where,
subject to the terms of the Indenture as described below under
Registration and Transfer, the Debt Securities may be presented
for registration of transfer or exchange and the place or places
where notices and demands to or upon the Company in respect of
the Debt Securities and the Indenture may be served; the Security
Registrar for such Debt Securities; and, if such is the case,
that the principal of such Debt Securities will be payable
without presentment or surrender thereof; (6) the period or
periods within, or date or dates on, which, the price or prices
at which and the terms and conditions upon which Debt Securities
may be redeemed, in whole or in part, at the option of the
Company; (7) the obligation or obligations, if any, of the
Company to redeem or purchase any of the Debt Securities pursuant
to any sinking fund or other mandatory redemption provisions or
at the option of the Holder thereof, and the period or periods
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within which, or the date or dates on which, the price or prices
at which and the terms and conditions upon which the Debt
Securities will be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the
requirements of a notice of redemption in the case of mandatory
redemption or redemption at the option of the Holder; (8) the
denominations in which any Debt Securities will be issuable, if
other than denominations of $1,000 and any integral multiple
thereof; (9) the currency or currencies, including composite
currencies in which the principal of or any premium or interest
on the Debt Securities will be payable (if other than in
Dollars); (10) if the principal of or any premium or interest on
the Debt Securities is to be payable, at the election of the
Company or the Holder thereof, in a coin or currency other than
that in which the Debt Securities are stated to be payable, the
period or periods within which and the terms and conditions upon
which, such election is to be made; (11) if the principal of or
premium or interest on the Debt Securities is to be payable, or
is to be payable at the election of the Company or a Holder
thereof, in securities or other property, the type and amount of
such securities or other property, or the method or other means
by which such amount will be determined, and the period or
periods within which, and the terms and conditions upon which,
any such election may be made; (12) if the amount payable in
respect of principal of or any premium or interest on the Debt
Securities may be determined with reference to an index or other
fact or event ascertainable outside of the Indenture, the manner
in which such amounts will be determined; (13) if other than the
principal amount thereof, the portion of the principal amount of
the Debt Securities which will be payable upon declaration of
acceleration of the Maturity thereof; (14) any Events of Default,
in addition to those specified in the Indenture, with respect to
the Debt Securities and any covenants of the Company for the
benefit of the Holders of the Debt Securities, in addition to
those specified in the Indenture; (15) the terms, if any,
pursuant to which the Debt Securities may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person; (16) the obligations or instruments,
if any, which will be considered to be Eligible Obligations in
respect of such Debt Securities denominated in a currency other
than Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Debt Securities after the
satisfaction and discharge thereof; (17) if the Debt Securities
are to be issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Debt Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all
other matters incidental to such Debt Securities; (18) if the
Debt Securities are to be issuable as bearer securities any and
all matters incidental thereto; (19) to the extent not addressed
in item (17) above, any limitations on the rights of the Holders
of the Debt Securities to transfer or exchange the Debt
Securities or to obtain the registration of transfer thereof, and
if a service charge will be made for the registration of transfer
or exchange of the Debt Securities, the amount or terms thereof;
(20) any exceptions to the provisions governing payments due on
legal holidays or any variations in the definition of Business
Day with respect to such Debt Securities; and (21) any other
terms of the Debt Securities, not inconsistent with the
provisions of the Indenture. (Indenture, Section 301).
Debt Securities may be sold at a discount below their
principal amount. Certain special United States federal income
tax considerations, if any, applicable to Debt Securities sold at
an original issue discount may be described in the applicable
Prospectus Supplement. In addition, certain special United States
Federal income tax or other considerations, if any, applicable to
any Debt Securities which are denominated in a currency or
currency unit other than Dollars may be described in the
applicable Prospectus Supplement.
Except as may otherwise be described in the applicable
Prospectus Supplement, the covenants contained in the Indenture
would not afford Holders of Debt Securities protection in the
event of a highly-leveraged transaction involving the Company.
Payment and Paying Agents. Except as may be provided in the
applicable Prospectus Supplement, interest, if any, on each Debt
Security payable on each Interest Payment Date will be paid to
the Person in whose name such Debt Security is registered as of
the close of business on the Regular Record Date relating to such
Interest Payment Date; provided, however, that interest payable
at maturity (whether at stated maturity, upon redemption or
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<PAGE>
otherwise, hereinafter a Maturity) will be paid to the Person to
whom principal is paid. However, if there has been a default in
the payment of interest on any Debt Security, such defaulted
interest may be payable to the Holder of such Debt Security as of
the close of business on a date selected by the Indenture Trustee
which is not more than 15 days and not less than 10 days prior to
the date proposed by the Company for payment on such defaulted
interest or in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt
Security may be listed, if the Indenture Trustee deems such
manner of payment practicable (Indenture, Section 307).
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of and premium, if any, and interest
on, the Debt Securities at Maturity will be payable upon
presentation of the Debt Securities at the corporate trust office
of The Bank of New York, in The City of New York, as Paying Agent
for the Company. The Company may change the Place of Payment on
the Debt Securities, may appoint one or more additional Paying
Agents (including the Company) and may remove any Paying Agent,
all at its discretion (Indenture, Section 602).
Registration and Transfer. Unless otherwise specified in
the applicable Prospectus Supplement, the transfer of Debt
Securities may be registered, and Debt Securities may be
exchanged for other Debt Securities of the same series or
tranche, of authorized denominations and of like tenor and
aggregate principal amount, at the corporate trust office of The
Bank of New York in The City of New York, as Security Registrar
for the Debt Securities. The Company may change the place for
registration of transfer and exchange of the Debt Securities and
may designate one or more additional places for such registration
and exchange, all at its discretion. Except as otherwise provided
in the applicable Prospectus Supplement, no service charge will
be made for any transfer or exchange of the Debt Securities, but
the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of the
Debt Securities. The Company will not be required to execute or
to provide for the registration of transfer of, or the exchange
of, (a) any Debt Security during a period of 15 days prior to
giving any notice of redemption or (b) any Debt Security selected
for redemption in whole or in part, except the unredeemed portion
of any Debt Security being redeemed in part (Indenture, Section
305).
Defeasance. The principal amount of any series of Debt
Securities issued under the Indenture will be deemed to have been
paid for purposes of the Indenture and the entire indebtedness of
the Company in respect thereof will be deemed to have been
satisfied and discharged if there shall have been irrevocably
deposited with the Indenture Trustee or any paying agent, in
trust: (a) money in an amount which will be sufficient, or (b)
in the case of a deposit made prior to the maturity of the Debt
Securities, Eligible Obligations (as defined below), the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
Indenture Trustee, will be sufficient, or (c) a combination of
(a) and (b) which will be sufficient, to pay when due the
principal of and premium, if any, and interest, if any, due and
to become due on the Debt Securities of such series that are
Outstanding. For this purpose, Eligible Obligations include
direct obligations of, or obligations unconditionally guaranteed
by, the United States of America entitled to the benefit of the
full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership
interest in such obligations or in any specific interest or
principal payments due in respect thereof and which do not
contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof.
Consolidation, Merger, and Sale of Assets. Under the terms
of the Indenture, the Company may not consolidate with or merge
into any other entity or convey, transfer or lease its properties
and assets substantially as an entirety to any entity, unless
(i) the corporation formed by such consolidation or into which
the Company is merged or the entity which acquires by conveyance
or transfer, or which leases, the property and assets of the
Company substantially as an entirety shall be a entity organized
and validly existing under the laws of any domestic jurisdiction
and such entity expressly assumes the Company's obligations on
all Debt Securities and under the Indenture, (ii) immediately
after giving effect to the transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be
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<PAGE>
continuing, and (iii) the Company shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of
Counsel as provided in the Indenture (Indenture, Section 1101).
The terms of the Indenture do not restrict the Company in a
merger in which the Company is the surviving entity.
Events of Default. Each of the following will constitute an
Event of Default under the Indenture with respect to the Debt
Securities of any series: (a) failure to pay any interest on the
Debt Securities of such series within 30 days after the same
becomes due and payable; (b) failure to pay principal or premium,
if any, on the Debt Securities of such series when due and
payable; (c) failure to perform, or breach of, any other covenant
or warranty of the Company in the Indenture (other than a
covenant or warranty of the Company in the Indenture solely for
the benefit of one or more series of Debt Securities other than
such series) for 60 days after written notice to the Company by
the Indenture Trustee, or to the Company and the Indenture
Trustee by the Holders of at least 33% in principal amount of the
Debt Securities of such series Outstanding under the Indenture as
provided in the Indenture; (d) the entry by a court having
jurisdiction in the premises of (1) a decree or order for relief
in respect of the Company in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than the
Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief or any such
other decree or order shall have remained unstayed and in effect
for a period of 90 consecutive days; and (e) the commencement by
the Company of a voluntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in a case or other similar proceeding or
to the commencement of any bankruptcy or insolvency case or
proceeding against it under any applicable Federal or state law
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state
law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official
of the Company of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due, or the authorization of such action
by the Board of Directors (Indenture, Section 801).
An Event of Default with respect to the Debt Securities of a
particular series may not necessarily constitute an Event of
Default with respect to Debt Securities of any other series
issued under the Indenture.
Remedies. If an Event of Default due to the default in
payment of principal of or interest on any series of Debt
Securities or due to the default in the performance or breach of
any other covenant or warranty of the Company applicable to the
Debt Securities of such series but not applicable to all series
occurs and is continuing, then either the Indenture Trustee or
the Holders of 33% in principal amount of the outstanding Debt
Securities of such series may declare the principal of all of the
Debt Securities of such series and interest accrued thereon to be
due and payable immediately. If an Event of Default due to the
default in the performance of any other covenants or agreements
in the Indenture applicable to all Outstanding Debt Securities or
due to certain events of bankruptcy, insolvency or reorganization
of the Company has occurred and is continuing, either the
Indenture Trustee or the Holders of not less than 33% in
principal amount of all Outstanding Debt Securities, considered
as one class, and not the Holders of the Debt Securities of any
one of such series may make such declaration of acceleration.
There is no automatic acceleration, even in the event of
bankruptcy, insolvency or reorganization of the Company.
At any time after the declaration of acceleration with
respect to the Debt Securities of any series has been made and
before a judgment or decree for payment of the money due has been
obtained, the Event or Events of Default giving rise to such
declaration of acceleration will, without further act, be deemed
10
<PAGE>
to have been waived, and such declaration and its consequences
will, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company has paid or deposited with the Indenture
Trustee a sum sufficient to pay
(1) all overdue interest on all Debt Securities of
such series;
(2) the principal of and premium, if any, on any Debt
Securities of such series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Debt Securities;
(3) interest upon overdue interest at the rate or
rates prescribed therefor in such Debt Securities, to the extent
that payment of such interest is lawful; and
(4) all amounts due to the Indenture Trustee under the
Indenture; and
(b) any other Event or Events of Default with respect to
Debt Securities of such series, other than the nonpayment of the
principal of the Debt Securities of such series which has become
due solely by such declaration of acceleration, have been cured
or waived as provided in the Indenture (Indenture, Section 802).
Subject to the provisions of the Indenture relating to the
duties of the Indenture Trustee in case an Event of Default shall
occur and be continuing, the Indenture Trustee will be under no
obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Indenture Trustee
reasonable indemnity (Indenture, Section 903). If an Event of
Default has occurred and is continuing in respect of a series of
Debt Securities, subject to such provisions for the
indemnification of the Indenture Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities
of such series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee, with respect to the Debt Securities of
such series; provided, however, that if an Event of Default
occurs and is continuing with respect to more than one series of
Debt Securities, the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of all such series,
considered as one class, will have the right to make such
direction, and not the Holders of the Debt Securities of any one
of such series; and provided, further, that such direction will
not be in conflict with any rule of law or with the Indenture
(Indenture, Section 812).
No Holder of Debt Securities of any series will have any
right to institute any proceeding with respect to the Indenture,
or for the appointment of a receiver or a trustee, or for any
other remedy thereunder, unless (i) such Holder has previously
given to the Indenture Trustee written notice of a continuing
Event of Default with respect to the Debt Securities of such
series, (ii) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of all series
in respect of which an Event of Default shall have occurred and
be continuing, considered as one class, have made written request
to the Indenture Trustee, and such Holder or Holders have offered
reasonable indemnity to the Indenture Trustee to institute such
proceeding in respect of such Event of Default in its own name as
trustee and (iii) the Indenture Trustee has failed to institute
any proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of such series a direction inconsistent with such
request, within 60 days after such notice, request and offer
(Indenture, Section 807). However, such limitations do not apply
to a suit instituted by a Holder of a Debt Security for the
enforcement of payment of the principal of or any premium or
interest on such Debt Security on or after the applicable due
date specified in such Debt Security (Indenture, Section 808).
The Company will be required to furnish to the Indenture
Trustee annually a statement by an appropriate officer as to such
officer's knowledge of the Company's compliance with all
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<PAGE>
conditions and covenants under the Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under the Indenture (Indenture, Section
606).
Modification and Waiver. Without the consent of any Holder
of Debt Securities, the Company and the Indenture Trustee may
enter into one or more supplemental indentures for any of the
following purposes: (a) to evidence the assumption by any
permitted successor to the Company of the covenants of the
Company in the Indenture and in the Debt Securities; or (b) to
add one or more covenants of the Company or other provisions for
the benefit of all Holders or for the benefit of the Holders of,
or to remain in effect only so long as there shall be
Outstanding, Debt Securities of one or more specified series, or
one or more specified Tranches thereof, or to surrender any right
or power conferred upon the Company by the Indenture; or (c) to
add any additional Events of Default with respect to Outstanding
Debt Securities; or (d) to change or eliminate any provision of
the Indenture or to add any new provision to the Indenture,
provided that if such change, elimination or addition will
adversely affect the interests of the Holders of Debt Securities
of any series or Tranche in any material respect, such change,
elimination or addition will become effective with respect to
such series or Tranche only (1) when the consent of the Holders
of Debt Securities of such series or Tranche has been obtained in
accordance with the Indenture, or (2) when no Debt Securities of
such series or Tranche remain Outstanding under the Indenture; or
(e) to provide collateral security for all but not part of the
Debt Securities; or (f) to establish the form or terms of Debt
Securities of any other series or Tranche as permitted by the
Indenture; or (g) to provide for the authentication and delivery
of bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the procedures for
the registration, exchange and replacement thereof and for the
giving of notice to, and the solicitation of the vote or consent
of, the Holders thereof, and for any and all other matters
incidental thereto; or (h) to evidence and provide for the
acceptance of appointment of a successor Indenture Trustee with
respect to the Debt Securities of one or more series and to add
to or change any of the provisions of the Indenture as shall be
necessary to provide for or to facilitate the administration of
the trusts under the Indenture by more than one trustee; or (i)
to provide for the procedures required to permit the utilization
of a noncertificated system of registration for the Debt
Securities of all or any series or Tranche; or (j) to change any
place where (1) the principal of and premium, if any, and
interest, if any, on all or any series or Tranche of Debt
Securities shall be payable, (2) all or any series or Tranche of
Debt Securities may be surrendered for registration of transfer
or exchange and (3) notices and demands to or upon the Company in
respect of Debt Securities and the Indenture may be served; or
(k) to cure any ambiguity or inconsistency or to add or change
any other provisions with respect to matters and questions
arising under the Indenture, provided such changes or additions
shall not adversely affect the interests of the Holders of Debt
Securities of any series or Tranche in any material respect
(Indenture, Section 1201).
The Holders of a majority in aggregate principal amount of
the Debt Securities of all series then Outstanding may waive
compliance by the Company with certain restrictive provisions of
the Indenture (Indenture, Section 607). The Holders of not less
than a majority in principal amount of the Outstanding Debt
Securities of any series may waive any past default under the
Indenture with respect to such series, except a default in the
payment of principal, premium, or interest and certain covenants
and provisions of the Indenture that cannot be modified or be
amended without the consent of the Holder of each Outstanding
Debt Security of such series affected (Indenture, Section 813).
Without limiting the generality of the foregoing, if the
Trust Indenture Act is amended after the date of the Indenture in
such a way as to require changes to the Indenture or the
incorporation therein of additional provisions or so as to permit
changes to, or the elimination of, provisions which, at the date
of the Indenture or at any time thereafter, were required by the
Trust Indenture Act to be contained in the Indenture, the
Indenture will be deemed to have been amended so as to conform to
such amendment of the Trust Indenture Act or to effect such
changes, additions or elimination, and the Company and the
Indenture Trustee may, without the consent of any Holders, enter
into one or more supplemental indentures to evidence or effect
such amendment (Indenture, Section 1201).
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<PAGE>
Except as provided above, the consent of the Holders of a
majority in aggregate principal amount of the Debt Securities of
all series then Outstanding, considered as one class, is required
for the purpose of adding any provisions to, or changing in any
manner, or eliminating any of the provisions of, the Indenture or
modifying in any manner the rights of the Holders of such Debt
Securities under the Indenture pursuant to one or more
supplemental indentures; provided, however, that if less than all
of the series of Debt Securities Outstanding are directly
affected by a proposed supplemental indenture, then the consent
only of the Holders of a majority in aggregate principal amount
of Outstanding Debt Securities of all series so directly
affected, considered as one class, shall be required; and
provided, further, that if the Debt Securities of any series
shall have been issued in more than one Tranche and if the
proposed supplemental indenture shall directly affect the rights
of the Holders of Debt Securities of one or more, but less than
all, of such Tranches, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of all Tranches so directly affected, considered as
one class, will be required; and provided further, that no such
amendment or modification may (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest
on, any Debt Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such rate
or reduce any premium payable upon the redemption thereof, or
change the coin or currency (or other property) in which any Debt
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity of any Debt Security
(or, in the case of redemption, on or after the redemption date)
without, in any such case, the consent of the Holder of such Debt
Security, (b) reduce the percentage in principal amount of the
Outstanding Debt Security of any series, or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of the
Indenture or any default thereunder and its consequences, or
reduce the requirements for quorum or voting, without, in any
such case, the consent of the Holder of each outstanding Debt
Security of such series or Tranche, or (c) modify certain of the
provisions of the Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults with
respect to the Debt Security of any series or Tranche, without
the consent of the Holder of each Outstanding Debt Security
affected thereby. A supplemental indenture which changes or
eliminates any covenant or other provision of the Indenture which
has expressly been included solely for the benefit of one or more
particular series of Debt Securities or one or more Tranches
thereof, or modifies the rights of the Holders of Debt Securities
of such series with respect to such covenant or other provision,
will be deemed not to affect the rights under the Indenture of
the Holders of the Debt Securities of any other series or Tranche
(Indenture, Section 1202).
The Indenture provides that in determining whether the
Holders of the requisite principal amount of the Outstanding Debt
Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture, or
whether a quorum is present at the meeting of the Holders of Debt
Securities, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any affiliate of the Company
or of such other obligor (unless the Company, such affiliate or
such obligor owns all Debt Securities Outstanding under the
Indenture, determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding.
If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, election,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other such act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the
Outstanding Debt Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Debt Securities shall be computed as of the record
date. Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind
every future Holder of the same Debt Security and the Holder of
every Debt Security issued upon the registration of transfer
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<PAGE>
thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Indenture
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debt Security
(Indenture, Section 104).
Resignation of Indenture Trustee. The Indenture Trustee may
resign at any time by giving written notice thereof to the
Company or may be removed at any time by Act of the Holders of a
majority in principal amount of all series of Debt Securities
then Outstanding delivered to the Indenture Trustee and the
Company. No resignation or removal of the Indenture Trustee and
no appointment of a successor trustee will become effective until
the acceptance of appointment by a successor trustee in
accordance with the requirements of the Indenture. So long as no
Event of Default or event which, after notice or lapse of time,
or both, would become an Event of Default has occurred and is
continuing and except with respect to an Indenture Trustee
appointed by Act of the Holders, if the Company has delivered to
the Indenture Trustee a resolution of its Board of Directors
appointing a successor trustee and such successor has accepted
such appointment in accordance with the terms of the Indenture,
the Indenture Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in
accordance with the Indenture (Indenture, Section 910).
Notices. Notices to Holders of Debt Securities will be
given by mail to the addresses of such Holders as they may appear
in the security register therefor.
Title. The Company, the Indenture Trustee, and any agent of
the Company or the Indenture Trustee, may treat the Person in
whose name Debt Securities are registered as the absolute owner
thereof (whether or not such Debt Securities may be overdue) for
the purpose of making payments and for all other purposes
irrespective of notice to the contrary.
Governing Law. The Indenture and the Debt Securities will
be governed by, and construed in accordance with, the laws of the
State of New York.
Regarding the Indenture Trustee. The Indenture Trustee
under the Indenture is The Bank of New York. In addition to
acting as Indenture Trustee, The Bank of New York acts as trustee
under the Company's Mortgage and Deed of Trust with respect to
substantially all of the properties of the Company, which secures
the Company's First Mortgage Bonds. The Company also maintains
various banking and trust relationships with The Bank of New
York.
EXPERTS AND LEGALITY
The consolidated financial statements included in the latest
Annual Report of the Company on Form 10-K, incorporated herein by
reference, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report included in said
latest Annual Report of the Company on Form 10-K, and have been
incorporated by reference herein in reliance upon such report
given upon authority of that firm as experts in accounting and
auditing.
With respect to any unaudited condensed consolidated interim
financial information included in the Company's Quarterly Reports
on Form 10-Q which are or will be incorporated herein by
reference, Deloitte & Touche LLP has applied limited procedures
in accordance with professional standards for reviews of such
information. As stated in any of their reports included in the
Company's Quarterly Reports on Form 10-Q, which are or will be
incorporated herein by reference, Deloitte & Touche LLP did not
audit and did not express an opinion on such interim financial
information. Deloitte & Touche LLP is not subject to the
liability provisions of Section 11 of the 1933 Act for any of
their reports on such unaudited condensed consolidated interim
financial information because such reports were not "reports" or
a "part" of the Registration Statement filed under the 1933 Act
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<PAGE>
with respect to the Securities prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the 1933
Act.
The statements made in the Company's 1996 Form 10-K under
Part I, Item 1--Business-Regulation and Rates and Environmental
Matters, incorporated herein by reference, have been reviewed by
Worsham, Forsythe & Wooldridge, L.L.P., Dallas, Texas, General
Counsel for the Company. All of such statements are set forth or
incorporated by reference herein in reliance upon the opinion of
that firm given upon their authority as experts. At May 31, 1997,
members of the firm of Worsham, Forsythe & Wooldridge, L.L.P.
owned approximately 46,200 shares of the common stock of Texas
Utilities.
The legality of the Offered Securities will be passed upon
for the Company by Worsham, Forsythe & Wooldridge, L.L.P. and by
Reid & Priest LLP, New York, New York, of counsel to the Company,
and for any underwriters or agents by Winthrop, Stimson, Putnam &
Roberts, New York, New York. However, all matters pertaining to
incorporation, franchises, licenses and permits, the Lien of the
Mortgage on property located in Texas and all other matters of
Texas law will be passed upon only by Worsham, Forsythe &
Wooldridge, L.L.P.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways:
(i) through underwriters or dealers; (ii) directly to a limited
number of purchasers or to a single purchaser; or (iii) through
agents. The Prospectus Supplement with respect to the Offered
Securities sets forth the terms of the offering of the Offered
Securities, including the name or names of any underwriters,
dealers or agents, the purchase price of such Offered Securities
and the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time
to time.
If underwriters are used in the sale, the Offered Securities
will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of the sale.
The underwriter or underwriters with respect to a particular
underwritten offering of Offered Securities are named in the
Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or
underwriters are set forth on the cover page of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the
Offered Securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all
such Offered Securities if any are purchased.
Offered Securities may be sold directly by the Company or
through agents designated by the Company from time to time. The
Prospectus Supplement sets forth the name of any agent involved
in the offer or sale of the Offered Securities in respect of
which the Prospectus Supplement is delivered as well as any
commissions payable by the Company to such agent. Unless
otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its
appointment.
If so indicated in the Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit offers
by certain specified institutions to purchase Offered Securities
from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the
future. Such contracts will be subject to those conditions set
forth in the Prospectus Supplement, and the Prospectus Supplement
will set forth the commission payable for solicitation of such
contracts.
15
<PAGE>
Subject to certain conditions, the Company may agree to
indemnify the several underwriters or agents and their
controlling persons against certain liabilities, including
liabilities under the 1933 Act arising out of or based upon,
among other things, any untrue statement or alleged untrue
statement of a material fact contained in the registration
statement, this Prospectus, a Prospectus Supplement or the
Incorporated Documents or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. See the
applicable Prospectus Supplement.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT
IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY OTHER PERSON, UNDERWRITER, DEALER OR AGENT.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT DOES NOT CONSTITUTE
AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
16
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Restated Articles of Incorporation of the
Company provides as follows:
"The Corporation shall reimburse or indemnify any former,
present or future director, officer or employee of the
Corporation, or any person who may have served at its request as
a director, officer or employee of another corporation, or any
former, present or future director, officer or employee of the
Corporation who shall have served or shall be serving as an
administrator, agent or fiduciary for the Corporation or for
another corporation at the request of the Corporation (and his
heirs, executors and administrators) from and against all
expenses and liabilities incurred by him or them, or imposed on
him or them, including, but not limited to, judgments,
settlements, court costs and attorneys' fees, in connection with,
or arising out of, the defense of any action, suit or proceeding
in which he may be involved by reason of his being or having been
such director, officer or employee, except with respect to
matters as to which he shall be adjudged in such action, suit or
proceeding to be liable because he did not act in good faith, or
because of dishonesty or conflict of interest in the performance
of his duty.
"No former, present or future director, officer or employee
of the Corporation (or his heirs, executors and administrators)
shall be liable for any act, omission, step or conduct taken or
had in good faith, which is required, authorized or approved by
any order or orders issued pursuant to the Public Utility Holding
Company Act of 1935, the Federal Power Act, or any other federal
or state statute regulating the Corporation or its subsidiaries,
or any amendments to any thereof. In any action, suit or
proceeding based on any act, omission, step or conduct, as in
this paragraph described, the provisions hereof shall be brought
to the attention of the court. In the event that the foregoing
provisions of this paragraph are found by the court not to
constitute a valid defense, each such director, officer or
employee (and his heirs, executors and administrators) shall be
reimbursed for, or indemnified against, all expenses and
liabilities incurred by him or them, or imposed on him or them,
including, but not limited to, judgments, settlements, court
costs and attorneys' fees, in connection with, or arising out of,
any such action, suit or proceeding based on any act, omission,
step or conduct taken or had in good faith as in this paragraph
described.
"The foregoing rights shall not be exclusive of other rights
to which any such director, officer or employee (or his heirs,
executors and administrators) may otherwise be entitled under any
bylaw, agreement, vote of shareholders or otherwise, and shall be
available whether or not the director, officer or employee
continues to be a director, officer or employee at the time of
incurring such expenses and liabilities. In furtherance, and not
in limitation of the foregoing provisions of this Article IX, the
Corporation may indemnify and insure any such persons to the
fullest extent permitted by the Texas Business Corporation Act,
as amended from time to time, or the laws of the State of Texas,
as in effect from time to time."
Article 2.02-1 of the Texas Business Corporation Act permits
the Company, in certain circumstances, to indemnify any present
or former director, officer, employee or agent of the Company
against judgments, penalties, fines, settlements and reasonable
expenses incurred in connection with a proceeding in which any
such person was, is or is threatened to be, made a party by
reason of holding such office or position, but only to a limited
extent for obligations resulting from a proceeding in which the
person is found liable on the basis that a personal benefit was
improperly received or in circumstances in which the person is
found liable in a derivative suit brought on behalf of the
Company.
Article X of the Articles of Incorporation of the Company
provides as follows:
II-1
<PAGE>
"A director of the Corporation shall not be liable to
the Corporation or its shareholders for monetary damages for
any act or omission in the director's capacity as a
director, except that this provision does not eliminate or
limit the liability of a director for:
(a) a breach of a director's duty of loyalty to the
Corporation or its shareholders;
(b) an act or omission not in good faith that constitutes a
breach of duty of a director to the Corporation or an act or
omission that involved intentional misconduct or a knowing
violation of the law;
(c) a transaction from which a director received an improper
benefit, whether or not the benefit resulted from an action taken
within the scope of the director's office; or
(d) an act or omission for which the liability of a director
is expressly provided for by statute.
If the laws of the State of Texas are amended to authorize action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
such laws as so amended. Any repeal or modification of this
Article X shall not adversely affect any right of protection of a
director of the Corporation existing at the time of such repeal
or modification. "
Section 18 of the Company's bylaws provides as follows:
"Section 18. Insurance, Indemnification and Other
Arrangements. Without further specific approval of the
shareholders of the corporation, the corporation may
purchase, enter into, maintain or provide insurance,
indemnification or other arrangements for the benefit of any
person who is or was a director, officer, employee or agent
of the corporation or is or was serving another entity at
the request of the corporation as a director, officer,
employee, agent or otherwise, to the fullest extent
permitted by the laws of the State of Texas, including
without limitation Art. 2.02-1 of the Texas Business
Corporation Act or any successor provision, against any
liability asserted against or incurred by any such person in
any such capacity or arising out of such person's service in
such capacity whether or not the corporation would otherwise
have the power to indemnify against any such liability under
the Texas Business Corporation Act. If the laws of the State
of Texas are amended to authorize the purchase, entering
into, maintaining or providing of insurance, indemnification
or other arrangements in the nature of those permitted
hereby to a greater extent than presently permitted, then
the corporation shall have the power and authority to
purchase, enter into, maintain and provide any additional
arrangements in such regard as shall be permitted from time
to time by the laws of the State of Texas without further
approval of the shareholders of the corporation. No repeal
or modification of such laws or this Section 18 shall
adversely affect any such arrangement or right to
indemnification existing at the time of such repeal or
modification."
The Company has entered into agreements with its directors
which provide, among other things, for their indemnification by
the Company to the fullest extent permitted by Texas law, unless
a final adjudication establishes that the indemnitee's acts were
committed in bad faith, were the result of active and deliberate
dishonesty or that the indemnitee personally gained a financial
profit to which the indemnitee was not legally entitled. These
agreements further provide, under certain circumstances, for the
advancement of expenses and the implementation of other
arrangements for the benefit of the indemnitee.
The Company has insurance covering its expenditures which
might arise in connection with its lawful indemnification of its
directors and officers for their liabilities and expenses.
Directors and officers of the Company also have insurance which
insures them against certain other liabilities and expenses.
II-2
<PAGE>
ITEM 16. EXHIBITS.
PREVIOUSLY FILED*
-----------------
WITH FILE AS
EXHIBIT NUMBER EXHIBIT
------- ------ -------
1(c) Form of Underwriting Agreement for
Debt Securities
Supplemental Indentures to Mortgage
and Deed of Trust executed since
September 15, 1994
NUMBER DATED
------ -----
4(b) Fifty-second April 1, 1995
4(c) Fifty-third June 1, 1995
4(d) Fifty-fourth October 1, 1995
4(e) Fifty-fifth March 1, 1996
4(f) Fifty-sixth September 1, 1996
4(g) Fifty-seventh February 1, 1997
4(h) Form of Indenture (For Unsecured Debt
Securities), dated _________, 1997,
between the Company and The Bank of
New York, Trustee.
4(i) Form of Officer's Certificate
establishing Debt Securities.
5(c) Opinion of Worsham, Forsythe &
Wooldridge, L.L.P., General Counsel
for the Company.
5(d) Opinion of Reid & Priest LLP, of
Counsel to the Company.
12(b) Computation of Ratio of Earnings to
Fixed Charges of the Company.
15(b) Letter of Deloitte & Touche LLP
regarding unaudited condensed interim
financial information.
23(c) Independent Auditors' Consent.
23(d) Consents of Worsham, Forsythe &
Wooldridge, L.L.P. and Reid & Priest
LLP are contained in Exhibits 5(c) and
5(d), respectively.
25(b) Statement on Form T-1 of The Bank of
New York.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this post-effective amendment to the
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, and State of Texas, on
the 30th day of June, 1997.
TEXAS UTILITIES ELECTRIC COMPANY
By: /s/ Robert J. Reger, Jr.
----------------------------------
(Robert J. Reger, Jr., Esq.,
Attorney-in-fact)
Pursuant to the requirements of the Securities Act of 1933, this post-
effective amendment to the registration statement has been signed below by
the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Erle Nye* Principal Executive
-------------------------- Officer and Director June 30, 1997
(Erle Nye, Chairman of the
Board and Chief Executive)
/s/ Robert S. Shapard Principal Financial
-------------------------- Officer June 30, 1997
(Robert S. Shapard,
Treasurer and Assistant
Secretary)
Marc D. Moseley* Principal Accounting
-------------------------- Officer June 30, 1997
(Marc D. Moseley,
Controller)
T.L. Baker* Director
-------------------------- June 30, 1997
(T.L. Baker)
J.S. Farrington* Director
-------------------------- June 30, 1997
(J.S. Farrington)
H. Jarrell Gibbs* Director June 30, 1997
--------------------------
(H. Jarrell Gibbs)
/s/ M.S. Greene Director
-------------------------- June 30, 1997
(M.S. Greene)
/s/ Michael J. McNally Director
-------------------------- June 30, 1997
(Michael J. McNally)
W.M. Taylor* Director
-------------------------- June 30, 1997
(W.M. Taylor)
E.L. Watson* Director
-------------------------- June 30, 1997
(E.L. Watson)
*By: /s/ Robert J. Reger, Jr.
----------------------------------------------
(Robert J. Reger, Jr., Esq., Attorney-in-fact)
II-4
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
1(c) Form of Underwriting Agreement for
Debt Securities
Supplemental Indentures to Mortgage
and Deed of Trust executed since
September 15, 1994
NUMBER DATED
------ -----
4(b) Fifty-second April 1, 1995
4(c) Fifty-third June 1, 1995
4(d) Fifty-fourth October 1, 1995
4(e) Fifty-fifth March 1, 1996
4(f) Fifty-sixth September 1, 1996
4(g) Fifty-seventh February 1, 1997
4(h) Form of Indenture (For Unsecured Debt
Securities), dated _________, 1997,
between the Company and The Bank of
New York, Trustee.
4(i) Form of Officer's Certificate
establishing Debt Securities.
5(c) Opinion of Worsham, Forsythe &
Wooldridge, L.L.P., General Counsel
for the Company.
5(d) Opinion of Reid & Priest LLP, of
Counsel to the Company.
12(b) Computation of Ratio of Earnings to
Fixed Charges of the Company.
15(b) Letter of Deloitte & Touche LLP
regarding unaudited condensed interim
financial information.
23(c) Independent Auditors' Consent.
23(d) Consents of Worsham, Forsythe &
Wooldridge, L.L.P. and Reid & Priest
LLP are contained in Exhibits 5(c) and
5(d), respectively.
25(b) Statement on Form T-1 of The Bank of
New York.
Exhibit 1(c)
TEXAS UTILITIES ELECTRIC COMPANY
Unsecured Debt Securities
UNDERWRITING AGREEMENT
----------------------
[DATE]
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Electric Company, a
------------
Texas corporation (the "Company"), proposes to issue and sell
severally to you (the "Underwriters"), the Company's unsecured
debt securities of the series designation, with the terms and in
the principal amount specified in Schedule I hereto (the "Debt
Securities").
2. Description of Debt Securities. The Company
------------------------------
proposes to issue the Debt Securities under its Indenture (For
Unsecured Debt Securities), dated as of _________ __, 1997, to
The Bank of New York, Trustee (the "Indenture Trustee"), said
Indenture, together with any amendments or supplements thereto,
being hereinafter referred to as the "Indenture".
3. Representations and Warranties of the Company. The
---------------------------------------------
Company represents and warrants to the several Underwriters that:
(a) It has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the
"Original Registration Statement") on Form S-3, including a
prospectus, on September 15, 1994 (Registration No. 33-
83976) for the registration of $500,000,000 principal amount
of the Company's First Mortgage Bonds under the Securities
Act of 1933, as amended (the "Securities Act"). Such regis-
tration statement was declared effective by the Commission
on September 26, 1994. The Company also filed with the
Commission post-effective amendment no. 1 (the "Post-
Effective Amendment") to the Original Registration Statement
on July ___, 1997 to include the Debt Securities in the
securities registered with the Commission pursuant to the
Original Registration Statement. The Post-Effective
Amendment was declared effective by the Commission on [
]. References herein to the term "Registration
Statement" as of any date shall be deemed to refer to the
Original Registration Statement, as amended or supplemented
to such date, including all documents incorporated by
reference therein as of such date pursuant to Item 12 of
Form S-3 ("Incorporated Documents"). References herein to
the term "Prospectus" as of any given date shall be deemed
to refer to the prospectus forming a part of the Post-
Effective Amendment, as amended or supplemented as of such
date, including all Incorporated Documents as of such date.
References herein to the term "Effective Date" shall be
deemed to refer to the time and date the Post Effective
Amendment was declared effective. The Company will not file
any amendment to the Registration Statement or supplement to
the Prospectus on or after the date of this Agreement and
prior to the Closing Date, as hereinafter defined, without
prior notice to the Underwriters, or to which Counsel for
the Underwriters shall reasonably object in writing. For the
purposes of this Agreement, any Incorporated Document filed
with the Commission on or after the date of this agreement
and prior to the Closing Date, as hereinafter defined,
shall be deemed an amendment or supplement to the
Registration Statement and the Prospectus.
(b) On the Effective Date, the Registration Statement
and the Prospectus fully complied and at the Closing Date,
as hereinafter defined, the Registration Statement, the
Prospectus and the Indenture will fully comply in all
material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and the applicable rules and regu-
lations of the Commission thereunder; on the Effective Date
the Registration Statement did not, and at the Closing Date,
as hereinafter defined, the Registration Statement will not,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; on
the Effective Date the Prospectus did not, and at the
Closing Date, as hereinafter defined, and on the date it is
filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 of the General Rules and Regulations of
the Securities Act ("Rule 424"), the Prospectus will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and on said dates the
Incorporated Documents, taken together as a whole, fully
complied or will comply in all material respects with the
applicable provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the applicable
rules and regulations of the Commission thereunder, and,
when read together with the Prospectus on said dates did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information
furnished in writing to the Company by, or on behalf of, any
Underwriter for use in connection with the preparation of
the Registration Statement or the Prospectus or to any
statements in or omissions from the Statement of Eligibility
and Qualification under the Trust Indenture Act, or
amendments thereto, of the Indenture Trustee under the
Indenture.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which the
Company is now a party.
4. Purchase and Sale. On the basis of the
-----------------
representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall sell
to each of the Underwriters, and each Underwriter shall purchase
from the Company, at the time and place herein specified,
severally and not jointly, the respective principal amount of the
Debt Securities set forth opposite the name of such Underwriter
in Schedule II attached hereto, at the purchase price or prices
set forth in Schedule I hereto.
5. Time and Place of Closing. Delivery of the Debt
-------------------------
Securities against payment therefor by certified or official bank
check or checks payable to the Company or its order in
funds shall be made at the office of Reid & Priest
LLP, 40 West 57th Street, New York, New York, at 10:00 A.M., New
York Time, on , or at such other place, time and date
as shall be agreed upon in writing by the Company and you or
established in accordance with the following paragraph. The hour
and date of such delivery and payment are herein called the
"Closing Date". The Debt Securities shall be delivered to you
for the respective accounts of the Underwriters in fully
registered form in such denominations of $1,000 or any multiple
thereof and registered in such names as you shall reasonably
request in writing not later than the close of business on the
second business day prior to the Closing Date, or, to the extent
not so requested, registered in the names of the respective
Underwriters in such authorized denominations as the Company
shall determine. The Company agrees to make the Debt Securities
available to you for checking purposes not later than 10:00 A.M.,
New York Time, on the last business day preceding the Closing
Date at the office of .
If any Underwriter shall fail or refuse (otherwise than
for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the principal amount of the
Debt Securities which such Underwriter has agreed to purchase and
pay for hereunder, the Company shall immediately give notice to
the other Underwriters of the default of such Underwriter, and
the other Underwriters shall have the right within 24 hours after
the receipt of such notice to determine to purchase, or to
procure one or more others, who are members of the National
Association of Securities Dealers, Inc. ("NASD") (or, if not
members of the NASD, who are not eligible for membership in the
NASD and who agree (i) to make no sales within the United States,
its territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply
with the NASD's Rules of Fair Practice) and satisfactory to the
Company, to purchase, upon the terms herein set forth, the
principal amount of the Debt Securities which the defaulting
Underwriter had agreed to purchase. If any non-defaulting
Underwriter or Underwriters shall determine to exercise such
right, such Underwriter or Underwriters shall give written notice
to the Company of the determination in that regard within 24
hours after receipt of notice of any such default, and thereupon
the Closing Date shall be postponed for such period, not
exceeding three business days, as the Company shall determine.
If in the event of such a default no non-defaulting Underwriter
shall give such notice then this Agreement may be terminated by
the Company, upon like notice given to the non-defaulting
Underwriters, within a further period of 24 hours. If in such
case the Company shall not elect to terminate this Agreement it
shall have the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to
purchase and pay for the respective principal amounts of
Debt Securities which they had severally agreed to purchase
hereunder as hereinabove provided and, in addition, the
principal amounts of Debt Securities which the defaulting
Underwriter shall have so failed to purchase up to a
principal amount thereof equal to one-ninth (1/9) of the
respective principal amounts of the Debt Securities which
such non-defaulting Underwriters have otherwise agreed to
purchase hereunder, and/or
(b) to procure one or more persons, who are members of
the NASD (or, if not members of the NASD, who are not
eligible for membership in the NASD and who agree (i) to
make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the princi-
pal amount of the Debt Securities which such defaulting
Underwriter had agreed to purchase or that portion thereof
which the remaining Underwriters shall not be obligated to
purchase pursuant to the foregoing clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred
to in this Section 5, there shall be excluded a period of 24
hours in respect of each Saturday, Sunday or legal holiday which
would otherwise be included in such period of time.
Any action taken by the Company under this Section 5
shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 5 shall be without
any liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 6(g) and 9
hereof.
6. Covenants of the Company. The Company agrees that:
------------------------
(a) It will promptly deliver to each of you a signed
copy of the Original Registration Statement as originally
filed or, to the extent a signed copy is not available, a
conformed copy, certified by an officer of the Company to be
in the form as originally filed, including all Incorporated
Documents and exhibits and of all amendments thereto,
including the Post Effective Amendment.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as soon as practicable and advise you of the issuance of
any stop order under the Securities Act with respect to the
Registration Statement or the institution of any proceedings
therefor of which the Company shall have received notice.
The Company will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 as in the opinion of Counsel for the Underwriters a
prospectus covering the Debt Securities is required by law
to be delivered in connection with sales by an Underwriter
or dealer, any event relating to or affecting the Company or
of which the Company shall be advised in writing by you
shall occur which in the Company's reasonable opinion should
be set forth in a supplement to, or an amendment of, the
Prospectus in order to make the Prospectus not misleading in
the light of the circumstances when it is delivered to a
purchaser, the Company will, at its expense, amend or
supplement the Prospectus by either (i) preparing and
furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an
appropriate filing pursuant to Section 13 of the Exchange
Act, which will supplement or amend the Prospectus so that,
as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the
expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver
a prospectus after the expiration of nine months from the
date the Prospectus is filed with, or transmitted for filing
to, the Commission pursuant to Rule 424, the Company, upon
your request, will furnish to you, at the expense of such
Underwriter, a reasonable quantity of a supplemental
prospectus or supplements to the Prospectus complying with
Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Debt Securities for offer and sale under the blue-sky laws
of such jurisdictions as you may designate, provided that
the Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be
unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Debt Securities as provided in Section 5 hereof, (iii)
the qualification of the Debt Securities under blue-sky laws
(including counsel fees not to exceed $7,500), and (iv) the
printing and delivery to the Underwriters of reasonable
quantities of the Registration Statement and, except as
provided in Section 6(d) hereof, of the Prospectus. The
Company shall not, however, be required to pay any amount
for any expenses of yours or any of the Underwriters, except
that, if this Agreement shall be terminated in accordance
with the provisions of Section 7, 8 or 10 hereof, the
Company will reimburse you for the fees and disbursements of
Counsel for the Underwriters, whose fees and disbursements
the Underwriters agree to pay in any other event, and will
reimburse the Underwriters for their reasonable out-of-
pocket expenses, in an aggregate amount not exceeding
$5,000, incurred in contemplation of the performance of this
Agreement. The Company shall not in any event be liable to
any of the several Underwriters for damages on account of
loss of anticipated profits.
7. Conditions of Underwriters' Obligations. The
---------------------------------------
obligations of the Underwriters to purchase and pay for the Debt
Securities shall be subject to the accuracy of the rep-
resentations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to
be performed hereunder prior to the Closing Date, and to the
following conditions:
(a) The Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule
424 prior to 6:00 P.M., New York Time, on the second
business day after the date of this Agreement, or such other
time and date as may be approved by you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Worsham, Forsythe & Wooldridge, L.L.P., General Counsel for
the Company, Reid & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, Putnam & Roberts, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules III, IV and V hereto (i)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Debt Securities shall be supplemented or amended after the
Prospectus shall have been filed with, or transmitted for
filing to, the Commission pursuant to Rule 424, with any
changes therein necessary to reflect such supplementation or
amendment.
(d) On and as of the date of this Agreement and on and
as of the Closing Date you shall have received from Deloitte
& Touche LLP a letter to the effect that (i) they are
independent certified public accountants with respect to the
Company, within the meaning of the Securities Act and the
applicable published rules and regulations thereunder, (ii)
in their opinion, the financial statements audited by them
and included or incorporated by reference in the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and
the published rules and regulations thereunder, (iii) on the
basis of a reading of the unaudited amounts of operating
revenues and net income included or incorporated by
reference in the Prospectus and the related financial
statements from which these amounts were derived, the latest
available unaudited financial statements of the Company and
the minute books of the Company and inquiries of officers of
the Company who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance
with generally accepted auditing standards and would not
necessarily reveal matters of significance with respect to
the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention which caused
them to believe that (A) the unaudited financial statements
incorporated by reference in the Prospectus were not
determined in accordance with generally accepted accounting
principles applied on a basis substantially consistent with
that of the corresponding amounts in the latest available
audited financial statements, (B) the unaudited amounts of
operating revenues and net income of the Company included or
incorporated by reference in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of
income incorporated by reference in the Prospectus, (C) for
the twelve months ended as of the date of the latest
available financial statements of the Company, there were
any decreases in operating revenues or net income as
compared with the comparable period of the preceding year,
and (D) at a specified date not more than seven days prior
to the date of such letter, there was any change in the
capital stock of the Company, short-term bank loans,
commercial paper, notes payable to Texas Utilities Company
or long-term debt of the Company or decrease in its net
assets, in each case as compared with amounts shown in the
most recent balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
that the Prospectus discloses have occurred or may occur or
which are occasioned by the declaration of a regular
quarterly dividend or the acquisition of long-term debt for
sinking fund purposes, or which are described in such
letter, and (iv) they have compared the dollar amounts (or
percentages or ratios derived from such dollar amounts) and
other financial information included or incorporated by
reference in the Registration Statement and the Prospectus
as reasonably requested by you (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company subject to the internal controls of the
Company's accounting system or are derived indirectly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter, and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(e) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus there shall not have been any material adverse
change in the business, property or financial condition of
the Company and, since such dates, there shall not have been
any material transaction entered into by the Company, in
each case other than transactions in the ordinary course of
business and transactions contemplated by the Registration
Statement or Prospectus and at the Closing Date you shall
have received a certificate to such effect dated the Closing
Date and signed by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Debt Securities shall have
been satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, this Agreement may be
terminated with the consent of Underwriters which have agreed to
purchase in the aggregate 50% or more of the principal amount of
Debt Securities upon notice thereof to the Company. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
8. Conditions of Company's Obligations. The obligation
-----------------------------------
of the Company to deliver the Debt Securities shall be subject to
the conditions that the Prospectus shall have been filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
prior to 6:00 P.M., New York Time, on the second business day
after the date of this Agreement or such other time and date as
may be approved by the Company, and no stop order suspending the
effectiveness of the Registration Statement shall be in effect at
the Closing Date and no proceedings for that purpose shall be
pending before, or threatened by, the Commission at the Closing
Date. In case these conditions shall not have been fulfilled,
this Agreement may be terminated by the Company upon notice
thereof to you. Any such termination shall be without liability
of any party to any other party except as otherwise provided in
Sections 6(g) and 9 hereof.
9. Indemnification.
---------------
(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or
prospectus prior to the Effective Date, or in the
Registration Statement or the Prospectus, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading; provided, however, that the
indemnity agreement contained in this Section 9 shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance upon information furnished in writing
to the Company by any Underwriter, through you or otherwise,
for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from that part of the
Registration Statement which shall constitute the Statement
of Eligibility and Qualification under the Trust Indenture
Act of the Indenture Trustee under the Indenture; and
provided further, that the indemnity agreement contained in
this Section 9 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Debt
Securities to any person if a copy of the Prospectus
(exclusive of the Incorporated Documents) shall not have
been given or sent to such person by or on behalf of such
Underwriter with or prior to the written confirmation of the
sale involved unless, with respect to the delivery of any
amendment or supplement to the Prospectus, the alleged
omission or alleged untrue statement was not corrected in
such amendment or supplement at the time of such written
confirmation. The indemnity agreement of the Company
contained in this Section 9 and the representations and
warranties of the Company contained in Section 3 hereof
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of
the Debt Securities.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its officers and directors, and each
person who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished in writing to the Company by or on
behalf of such Underwriter, through you or otherwise, for
use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. Each Underwriter hereby furnishes to the
Company in writing expressly for use in the Prospectus (i)
the statements relating to offerings by the Underwriters on
the cover page, (ii) the statements in the first paragraph
on page S-2 concerning stabilization and over allotment by
the Underwriters, and, (iii) under "Underwriting," the list
of underwriters and statements in the
paragraphs. The indemnity agreement of the respective
Underwriters contained in this Section 9 shall remain
operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made
by or on behalf of the Company, its directors or its
officers, any such Underwriter, or any such controlling
person, and shall survive the delivery of the Debt
Securities.
(c) The Company and the several Underwriters each
shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder,
but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense, or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel
chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall
be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of
such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them; provided, however,
if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for
the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in
the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the
indemnifying party shall not be liable for the expenses of
more than one separate counsel representing the indemnified
parties who are parties to such action).
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect the
relative fault of each indemnifying party on the one hand
and the indemnified party on the other in connection with
the statements or omissions which have resulted in such
losses, claims, damages, liabilities and expenses, as well
as any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from
any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company
and each of the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
above.
10. Termination. This Agreement may be terminated, at
-----------
any time prior to the Closing Date, by you with the consent of
the Underwriters which have agreed to purchase in the aggregate
50% or more of the aggregate principal amount of the Debt
Securities if (a) after the date hereof and at or prior to the
Closing Date there shall have occurred any general suspension of
trading in securities on the New York Stock Exchange or there
shall have been established by the New York Stock Exchange or by
the Commission or by any federal or state agency or by the deci-
sion of any court, any general limitation on prices for such
trading or any general restrictions on the distribution of
securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any new
material (i) outbreak of hostilities or (ii) other national or
international calamity or crisis, including, but not limited to,
an escalation of hostilities which existed prior to the date of
this Agreement, and the effect of any such event specified in
clause (a) or (b) above on the financial markets of the United
States shall be such as to make it impracticable, in the
reasonable judgment of the Underwriters, for the Underwriters to
enforce contracts for the sale of the Debt Securities. This
Agreement may also be terminated at any time prior to the Closing
Date by you with the consent of the Underwriters which have
agreed to purchase in the aggregate 50% or more of the principal
amount of the Debt Securities, if, in your reasonable judgment,
the subject matter of any amendment or supplement to the
Registration Statement or the Prospectus (other than an amendment
or supplement relating solely to the activity of any Underwriter
or Underwriters) prepared and issued by the Company after the
effectiveness of this Agreement shall have disclosed a material
adverse change in the business, property or financial condition
of the Company which has materially impaired the marketability of
the Debt Securities. Any termination hereof pursuant to this
Section 10 shall be without liability of any party to any other
party except as otherwise provided in Sections 6(g) and 9 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
-------------
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement shall inure to the benefit of the Company,
the several Underwriters and, with respect to the provisions of
Section 9 hereof, each director, officer and controlling person
referred to in said Section 9, and their respective successors.
Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this
Agreement. The term "successor" as used herein shall not include
any purchaser, as such purchaser, of any of the Debt Securities
from any of the several Underwriters.
12. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 1601 Bryan Street,
Dallas, Texas 75201, Attention: Treasurer.
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
TEXAS UTILITIES ELECTRIC COMPANY
By _____________________________
Accepted and delivered as of
the date first above written
BY
By _______________________
<PAGE>
SCHEDULE I
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Underwriting Agreement dated:
Underwriters:
Securities:
Designation:
Principal Amount:
Indenture dated as of:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
<PAGE>
SCHEDULE II
-----------
TEXAS UTILITIES ELECTRIC COMPANY
UNSECURED DEBT SECURITIES
Name Principal Amount
---- ----------------
<PAGE>
SCHEDULE III
[Letterhead of Worsham, Forsythe & Wooldridge, L.L.P.]
[Date]
c/o
Ladies and Gentlemen:
We have acted as General Counsel to Texas Utilities
Electric Company (the "Company") in connection with the issuance
and sale of its in an aggregate principal amount
of $ (the "Debt Securities") pursuant to the
Underwriting Agreement dated among the Company
and you (the "Underwriting Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Debt Securities. We have also examined such
other documents and satisfied ourselves as to such other matters
as we have deemed necessary as a basis for the conclusions of law
contained in the opinions enumerated below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
deemed appropriate, on certificates of public officials. We have
relied upon a certificate of the Indenture Trustee as to the
authentication of the Debt Securities. In our examination we
have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a public utility corporation duly
authorized by its articles of incorporation, as amended, to
conduct the business which it is now conducting, is subject, as
to rates and services, to the jurisdiction of certain
authorities, as set forth in the Prospectus, and holds valid and
subsisting franchises, licenses and permits authorizing it to
carry on the utility business in which it is engaged.
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
3. The Indenture has been duly qualified under the
Trust Indenture Act.
4. The Debt Securities and the Indenture have been
duly authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and the
Debt Securities and the Indenture are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity.
5. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Certain Terms of
the Offered Securities", insofar as they purport to constitute
summaries of the terms of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects.
6. Other than as stated, referred to or incorporated
by reference in the Registration Statement and the Prospectus,
there are no material pending legal proceedings to which the
Company is a party or of which property of the Company is the
subject which depart from the ordinary routine litigation
incident to the kind of business conducted by the Company, and to
our best knowledge no such proceedings are contemplated.
7. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with (or
transmitted for filing to) the Commission pursuant to Rule 424
under the Securities Act, (except for financial statements and
schedules and financial and statistical data as to which we do
not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1) complied as
to form in all material respects with the applicable requirements
of the Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
and the Registration Statement has become and is effective under
the Securities Act and, to our best knowledge, no proceedings for
a stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act.
8. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debt Securities.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference), we had discussions with certain of its officers
and representatives, with other counsel for the Company, with
Deloitte & Touche LLP. the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 5 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for that part of
the Registration Statement that constitutes the Form T-1) (i) the
Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus, at
the time it was filed with (or transmitted for filing to) the
Commission pursuant to Rule 424 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the State Bar of Texas and do not
hold ourselves out as experts in the laws of the State of New
York. As to all matters of New York law, we have, with your
consent, relied upon the opinion of Reid & Priest LLP, New York,
New York, of Counsel to the Company.
Very truly yours,
WORSHAM, FORSYTHE &
WOOLDRIDGE, L.L.P.
By:_________________________
A Partner
<PAGE>
SCHEDULE IV
[Letterhead of Reid & Priest LLP]
[Date]
c/o
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Electric
Company (the "Company") in connection with the issuance and sale
of its in an aggregate principal amount of
$ (the "Debt Securities") pursuant to the Underwriting
Agreement dated among the Company and you (the
"Underwriting Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in or reviewed the
corporate proceedings in connection with the authorization,
execution and delivery of the Underwriting Agreement, the
Indenture and the Debt Securities. We have also examined such
other documents and satisfied ourselves as to such other matters
as we have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. We have relied as to
various questions of fact upon the representations and warranties
of the Company contained in the Underwriting Agreement and, where
we deemed appropriate, on certificates of public officials. We
have relied upon a certificate of the Indenture Trustee as to the
authentication of the Debt Securities. In our examination we
have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted
to us as photostatic or certified copies.
Upon the basis of our familiarity with these transactions
and with the affairs and properties of the Company generally, we
are of the opinion that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
2. The Indenture has been duly qualified under the Trust
Indenture Act;
3. The Debt Securities and the Indenture have been duly
authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and the
Debt Securities and the Indenture are legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors generally and
of general principles of equity;
4. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Certain Terms of
the Offered Securities", insofar as they purport to constitute
summaries of the terms of the documents referred to therein,
constitute accurate summaries of the terms of such documents in
all material respects;
5. The Registration Statement, as of the Effective Date,
and the Prospectus, at the time it was filed with (or transmitted
for filing to) the Commission pursuant to Rule 424 under the
Securities Act, (except as to the financial statements and
schedules and other financial and statistical data contained
therein as to which we do not express any belief and except for
that part of the Registration Statement that constitutes the Form
T-1) complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder;
the Incorporated Documents (except as to the financial statements
and schedules and other financial and statistical data contained
therein, as to which we do not express any belief), at the time
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and
the applicable instructions, rules and regulations of the
Commission thereunder; and the Registration Statement has become
and is effective under the Securities Act and, to our best
knowledge, no proceedings for a stop order with respect thereto
are pending or threatened under Section 8 of the Securities Act;
and
6. No other approval, authorization, consent or order of
any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Debt Securities.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference) we had discussions with certain of its officers and
representatives, with other counsel for the Company, with
Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 4 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for that part of
the Registration Statement that constitutes the Form T-1) (i) the
Registration Statement, as of the Effective Date, included an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus, at
the time it was filed with (or transmitted for filing to) the
Commission pursuant to Rule 424 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Worsham, Forsythe & Wooldridge, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
REID & PRIEST LLP
<PAGE>
SCHEDULE V
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[Date]
c/o
Ladies and Gentlemen:
We have acted as counsel to you in connection with your
several purchases from Texas Utilities Electric Company (the
"Company") of its , in an aggregate
principal amount of $ (the "Debt Securities"), pursuant
to the Underwriting Agreement, dated , between you
and the Company (the "Underwriting Agreement").
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Worsham, Forsythe & Wooldridge,
L.L.P., of Dallas, Texas, General Counsel for the Company, as to
the matters covered in such opinion relating to Texas law. We
have reviewed such opinion and believe that it is satisfactory
and that you and we are justified in relying thereon. We have
also reviewed the opinion of Reid & Priest LLP required by
paragraph (c) of Section 7 of the Underwriting Agreement, and we
believe such opinion to be satisfactory.
We have, in addition, examined the documents described in
the list of closing papers as having been delivered to you at the
closing and such other documents and satisfied ourselves as to
such other matters as we have deemed necessary in order to enable
us to express this opinion. We have not examined the Debt
Securities, except specimens thereof, and have relied upon a
certificate of the Trustee as to the authentication thereof. As
to various questions of fact material to this opinion, we have
relied upon representations of the Company and statements in the
Registration Statement hereinafter mentioned. In such
examination we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us and the
genuineness and conformity to original documents of documents
submitted to us as certified or photostatic copies.
"Registration Statement", "Prospectus" and "Effective Date" as
used herein have the same meanings as the same words in the
Underwriting Agreement.
Based on the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
2. The Indenture is duly qualified under the 1939 Act.
3. The Debt Securities and the Indenture have been duly
authorized, executed and delivered by the Company, the Debt
Securities are entitled to the benefits of the Indenture, and
the Debt Securities and the Indenture are legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the effect
of bankruptcy, insolvency, reorganization, fraudulent
conveyance, receivership, moratorium and other laws affecting
the rights and remedies of creditors generally and of general
principles of equity.
4. The statements made in the Prospectus under the
captions "Description of Debt Securities" and "Certain Terms
of the Offered Securities", insofar as they purport to
constitute summaries of the documents referred to therein,
constitute accurate summaries of the terms of such documents
in all material respects.
5. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the blue-sky laws of any jurisdiction) is
legally required for the authorization of the issue and sale
by the Company of the Debt Securities as contemplated in the
Underwriting Agreement.
6. The Registration Statement, at the Effective Date
thereof, and the Prospectus, at the time it was filed with or
transmitted for filing to the Commission pursuant to Rule 424
(except in each case as to financial statements and schedules
and other financial and statistical data contained or
incorporated by reference therein and except for that part of
the Registration Statement that constitutes the Form T-1, upon
which we express no opinion), complied as to form in all
material respects with the Securities Act.
In passing upon the form of the Registration Statement
and the form of the Prospectus, we necessarily assume the
correctness and completeness of the statements made by the
Company and the information included in the Registration
Statement and the Prospectus and take no responsibility therefor,
except insofar as such statements relate to us and as set forth
in paragraph 4 above. In the course of the preparation by the
Company of the Registration Statement and the Prospectus, we have
had discussions with certain of its officers and representatives,
with counsel for the Company, with Deloitte & Touche LLP, the
independent public accountants who audited certain of the
financial statements incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your representatives. Our examination of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that at
the Effective Date the Registration Statement contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the time it was
filed with or transmitted for filing to the Commission pursuant
to Rule 424, or at the date hereof, included or includes any
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. We do not express any opinion or belief as
to the financial statements or other financial or statistical
data contained or incorporated by reference in the Registration
Statement or the Prospectus or as to that part of the
Registration Statement that constitutes the Form T-1.
This opinion is given to you solely for your use in
connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon by any other
person or for any other purpose.
Very truly yours,
WINTHROP, STIMSON, PUTNAM
& ROBERTS
=================================================================
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
(FORMERLY IRVING TRUST COMPANY)
TRUSTEE UNDER THE TEXAS UTILITIES
ELECTRIC COMPANY MORTGAGE AND
DEED OF TRUST, DATED AS OF
DECEMBER 1, 1983
__________________
FIFTY-SECOND SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES S DUE APRIL 1, 2030
AND
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES T DUE APRIL 1, 2030
__________________
DATED AS OF APRIL 1, 1995
=================================================================
This Instrument Grants a Security Interest by a Utility
This Instrument Contains After-Acquired Property Provisions
<PAGE>
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
FIFTY-SECOND SUPPLEMENTAL INDENTURE
_________________________________
INDENTURE, dated as of April 1, 1995, between TEXAS
UTILITIES ELECTRIC COMPANY, a corporation of the State of Texas,
whose address is Energy Plaza, 1601 Bryan Street, Dallas, Texas
75201 (hereinafter sometimes called the Company), and THE BANK OF
NEW YORK (formerly Irving Trust Company), a corporation of the
State of New York, whose address is 101 Barclay Street, New York,
New York 10286 (hereinafter sometimes called the Trustee),
Trustee under the Mortgage and Deed of Trust, dated as of
December 1, 1983 (hereinafter called the Original Indenture, the
Original Indenture and any and all indentures and instruments
supplemental thereto being hereinafter sometimes collectively
called the Mortgage), which Original Indenture was executed and
delivered by the Company to secure the payment of bonds issued or
to be issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is made, this Indenture
(hereinafter called the Fifty-second Supplemental Indenture)
being supplemental thereto;
WHEREAS, said Original Indenture was recorded or filed as
required in the State of Texas; and
WHEREAS, the Company executed and delivered to the Trustee
the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture . . . . . . April 1, 1984
Second Supplemental Indenture . . . . . . September 1, 1984
Third Supplemental Indenture . . . . . . April 1, 1985
Fourth Supplemental Indenture . . . . . . August 1, 1985
Fifth Supplemental Indenture . . . . . . September 1, 1985
Sixth Supplemental Indenture . . . . . . December 1, 1985
Seventh Supplemental Indenture . . . . . March 1, 1986
Eighth Supplemental Indenture . . . . . . May 1, 1986
Ninth Supplemental Indenture . . . . . . October 1, 1986
Tenth Supplemental Indenture . . . . . . December 1, 1986
Eleventh Supplemental Indenture . . . . . December 1, 1986
Twelfth Supplemental Indenture . . . . . February 1, 1987
Thirteenth Supplemental Indenture . . . . March 1, 1987
Fourteenth Supplemental Indenture . . . . April 1, 1987
Fifteenth Supplemental Indenture . . . . July 1, 1987
Sixteenth Supplemental Indenture . . . . September 1, 1987
Seventeenth Supplemental Indenture . . . October 1, 1987
Eighteenth Supplemental Indenture . . . . March 1, 1988
Nineteenth Supplemental Indenture . . . . May 1, 1988
DESIGNATION DATED AS OF
----------- -----------
Twentieth Supplemental Indenture . . . . September 1, 1988
Twenty-first Supplemental Indenture . . . November 1, 1988
Twenty-second Supplemental Indenture . . January 1, 1989
Twenty-third Supplemental Indenture . . . August 1, 1989
Twenty-fourth Supplemental Indenture . . November 1, 1989
Twenty-fifth Supplemental Indenture . . . December 1, 1989
Twenty-sixth Supplemental Indenture . . . February 1, 1990
Twenty-seventh Supplemental Indenture . . September 1, 1990
Twenty-eighth Supplemental Indenture . . October 1, 1990
Twenty-ninth Supplemental Indenture . . . October 1, 1990
Thirtieth Supplemental Indenture . . . . March 1, 1991
Thirty-first Supplemental Indenture . . . May 1, 1991
Thirty-second Supplemental Indenture . . July 1, 1991
Thirty-third Supplemental Indenture . . . February 1, 1992
Thirty-fourth Supplemental Indenture . . April 1, 1992
Thirty-fifth Supplemental Indenture . . . April 1, 1992
Thirty-sixth Supplemental Indenture . . . June 1, 1992
Thirty-seventh Supplemental Indenture . . June 1, 1992
Thirty-eighth Supplemental Indenture . . August 1, 1992
Thirty-ninth Supplemental Indenture . . . October 1, 1992
Fortieth Supplemental Indenture . . . . . November 1, 1992
Forty-first Supplemental Indenture . . . December 1, 1992
Forty-second Supplemental Indenture . . . March 1, 1993
Forty-third Supplemental Indenture . . . April 1, 1993
Forty-fourth Supplemental Indenture . . . April 1, 1993
Forty-fifth Supplemental Indenture . . . May 1, 1993
Forty-sixth Supplemental Indenture . . . July 1, 1993
Forty-seventh Supplemental Indenture . . October 1, 1993
Forty-eighth Supplemental Indenture . . . November 1, 1993
Forty-ninth Supplemental Indenture . . . May 1, 1994
Fiftieth Supplemental Indenture . . . . . May 1, 1994
Fifty-first Supplemental Indenture . . . August 1, 1994
which supplemental indentures were or are to be recorded or filed
as required in the State of Texas; and
WHEREAS, by the Original Indenture, the Company covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as may be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the Lien of the
Mortgage any property thereafter acquired and intended to be
subject to the Lien thereof; and
WHEREAS, in addition to the property described in the
Original Indenture, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued as of March 31,
1995, in accordance with the provisions of the Original
Indenture, as heretofore supplemented, the following series of
First Mortgage and Collateral Trust Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
12% Series due March 1, 1985 . . $ 1,000,000 $ None
13 5/8% Series due April 1, 2014 100,000,000 None
13 1/2% Series due
September 1, 2014 . . . . . . . 150,000,000 None
12 7/8% Series due April 1, 2015 150,000,000 None
12% Series due August 1, 2015 . . 100,000,000 None
12% Series due September 1, 2015 75,000,000 None
11 1/8% Series due
December 1, 2015 . . . . . . . 150,000,000 None
9 3/8% Series due March 1, 2016 . 200,000,000 None
9 3/4% Series due May 1, 2016 . . 200,000,000 None
7 3/4% Pollution Control
Series C . . . . . . . . . . . 70,000,000 70,000,000
8 1/4% Pollution Control
Series D . . . . . . . . . . . 200,000,000 200,000,000
9 1/2% Series due
December 1, 2016 . . . . . . . 300,000,000 None
9 1/4% Series due
February 1, 2017 . . . . . . . 250,000,000 None
7 7/8% Pollution Control Series E 100,000,000 100,000,000
10 1/2% Series due April 1, 2017 250,000,000 None
9 1/2% Series due July 1, 1997 . 150,000,000 None
10 1/2% Series due July 1, 2017 . 150,000,000 None
9% Pollution Control Series F . 55,000,000 55,000,000
9% Pollution Control Series G . 12,000,000 12,000,000
9 7/8% Pollution Control
Series H . . . . . . . . . . . 112,000,000 112,000,000
9 1/4% Pollution Control
Series I . . . . . . . . . . . 100,000,000 100,000,000
10 3/8% Series due May 1, 1998 . 150,000,000 None
11 3/8% Series due May 1, 2018 . 150,000,000 None
Secured Medium-Term Notes,
Series A . . . . . . . . . . . 300,000,000 30,000,000
10.44% Series due
November 1, 2008 . . . . . . . 150,000,000 150,000,000
8 1/4% Pollution Control
Series J . . . . . . . . . . . 100,000,000 100,000,000
9 1/2% Series due August 1, 1999 200,000,000 200,000,000
10% Series due August 1, 2019 . . 100,000,000 None
9 7/8% Series due
November 1, 2019 . . . . . . . 150,000,000 86,050,000
Secured Medium-Term Notes,
Series B . . . . . . . . . . . 150,000,000 130,000,000
8 1/8% Pollution Control
Series K . . . . . . . . . . . 50,000,000 50,000,000
8 1/8% Pollution Control
Series L . . . . . . . . . . . 40,000,000 40,000,000
10 5/8% Series due
September 1, 2020 . . . . . . . 250,000,000 250,000,000
Secured Medium-Term Notes,
Series C . . . . . . . . . . . 150,000,000 125,000,000
8 1/4% Pollution Control Series
due October 1, 2020 . . . . . . 11,000,000 11,000,000
7 7/8% Pollution Control Series
due March 1, 2021 . . . . . . . 100,000,000 100,000,000
9 3/4% Series due May 1, 2021 . . 300,000,000 300,000,000
0% Pollution Control Series
M due June 1, 2021 . . . . . . 86,250,000 None
0% Pollution Control Series
N due June 1, 2021 . . . . . . 57,500,000 None
0% Pollution Control Series
O due June 1, 2021 . . . . . . 57,500,000 None
0% Pollution Control Series
P due June 1, 2021 . . . . . . 115,000,000 115,000,000
8 1/8% Series due
February 1, 2002 . . . . . . . 150,000,000 150,000,000
8 7/8% Series due
February 1, 2022 . . . . . . . 175,000,000 175,000,000
8 1/4% Series due April 1, 2004 . 100,000,000 100,000,000
9% Series due April 1, 2022 . . . 100,000,000 100,000,000
6 3/4% Pollution Control Series
due April 1, 2022 . . . . . . . 50,000,000 50,000,000
7 1/8% Series due June 1, 1997 . 150,000,000 150,000,000
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
8% Series due
June 1, 2002 . . . . . . . . . $147,000,000 $147,000,000
6 5/8% Pollution Control Series
due June 1, 2022 . . . . . . . 33,000,000 33,000,000
6 3/8% Series due
August 1, 1997 . . . . . . . . 175,000,000 175,000,000
7 3/8% Series due
August 1, 2001 . . . . . . . . 150,000,000 150,000,000
8 1/2% Series due
August 1, 2024 . . . . . . . . 175,000,000 175,000,000
6.70% Pollution Control Series
due October 1, 2022 . . . . . . 16,935,000 16,935,000
6.55% Pollution Control Series
due October 1, 2022 . . . . . . 40,000,000 40,000,000
7 3/8% Series due
November 1, 1999 . . . . . . . 100,000,000 100,000,000
8 3/4% Series due
November 1, 2023 . . . . . . . 200,000,000 200,000,000
6 1/2% Pollution Control Series
due December 1, 2027 . . . . . 46,660,000 46,660,000
6 3/4% Series due March 1, 2003 . 200,000,000 200,000,000
7 7/8% Series due March 1, 2023 . 300,000,000 300,000,000
6.05% Pollution Control Series
due April 1, 2025 . . . . . . . 90,000,000 90,000,000
6.10% Pollution Control Series
due April 1, 2028 . . . . . . . 50,000,000 50,000,000
5 7/8% Series due April 1, 1998 . 175,000,000 175,000,000
6 3/4% Series due April 1, 2003 . 100,000,000 100,000,000
7 7/8% Series due April 1, 2024 . 225,000,000 225,000,000
0% Pollution Control Series
due June 1, 2023 . . . . . . . 115,000,000 115,000,000
5 3/4% Series due July 1, 1998 . 150,000,000 150,000,000
6 3/4% Series due July 1, 2005 . 100,000,000 100,000,000
7 5/8% Series due July 1, 2025 . 250,000,000 250,000,000
5 1/2% Series due
October 1, 1998 . . . . . . . . 125,000,000 125,000,000
6 1/4% Series due
October 1, 2004 . . . . . . . . 125,000,000 125,000,000
7 3/8% Series due
October 1, 2025 . . . . . . . . 300,000,000 300,000,000
5 1/2% Pollution Control Series
due May 1,2022 . . . . . . . . 50,000,000 50,000,000
5.55% Pollution Control Series
due May 1, 2022 . . . . . . . . 75,000,000 75,000,000
5.85% Pollution Control Series
due May 1, 2022 . . . . . . . . 33,465,000 33,465,000
Floating Rate Series due
May 1, 1999 . . . . . . . . . . 300,000,000 300,000,000
Pollution Control Series Q
due May 1, 2029 . . . . . . . . 45,045,500 45,045,500
Pollution Control Series R due
May 1, 2029 . . . . . . . . . . 45,045,500 45,045,500
0% Series due 1994 . . . . . . . 1,013,831,000 None
which bonds are also hereinafter sometimes called bonds of the
First through Seventy-eighth Series, respectively; and
WHEREAS, Section 2.01 of the Original Indenture provides
that the form of each series of bonds (other than the First
Series) issued thereunder and of the coupons to be attached to
coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company, and that the form of such
series, as established by said Board of Directors, shall specify
the descriptive title of the bonds and various other terms
thereof, and may also have such omissions or modifications or
contain such provisions not prohibited by the provisions of the
Mortgage as the Board of Directors may, in its discretion, cause
to be inserted therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and/or
secured under the Mortgage; and
WHEREAS, Section 22.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly
or impliedly reserved to or in any way conferred upon the Company
by any provision of the Mortgage, whether such power, privilege
or right is in any way restricted or is unrestricted, may be in
whole or in part waived or surrendered or subjected to any
restriction if at the time unrestricted, or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations, restrictions or provisions
for the benefit of any one or more series of bonds issued
thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the
terms and provisions of any series of bonds other than the First
Series, by an instrument in writing executed and acknowledged by
the Company in such manner as would be necessary to entitle a
conveyance of real estate to be recorded in all of the states in
which any property at the time subject to the Lien of the
Mortgage shall be situated; and
WHEREAS, the Company now desires to create two new series
of bonds and to add to its covenants and agreements contained in
the Mortgage certain other covenants and agreements to be
observed by it and to alter and amend in certain respects the
covenants and provisions contained in the Mortgage; and
WHEREAS, the execution and delivery by the Company of this
Fifty-second Supplemental Indenture, and the terms of the bonds
of the Seventy-ninth and Eightieth Series, hereinafter referred
to, have been duly authorized by the Board of Directors of the
Company by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the
Company, in consideration of the premises and of Ten Dollars to
it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of both the
principal of and interest and premium, if any, on the bonds from
time to time issued under the Mortgage, according to their tenor
and effect and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and any
modification made as in the Mortgage provided) and of said bonds,
hath granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
and confirmed and granted a security interest in and by these
presents doth grant, bargain, sell, release, convey, assign,
transfer, mortgage, hypothecate, affect, pledge, set over and
confirm and grant a security interest in (subject, however, to
Excepted Encumbrances as defined in Section 1.06 of the Original
Indenture) unto The Bank of New York, Trustee under the Mortgage,
and to its successor or successors in said trust, and to said
Trustee and its successors and assigns forever, all properties of
the Company, real, personal and mixed, of the kind or nature
specifically mentioned in the Original Indenture, as heretofore
supplemented, or of any other kind or nature acquired by the
Company on or after the date of the execution and delivery of the
Original Indenture (except any herein or in the Original
Indenture expressly excepted), now owned or, subject to the
provisions of Section 18.03 of the Original Indenture, hereafter
acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same, the scope and intent of
the foregoing or of any general description contained in this
Fifty-second Supplemental Indenture) all real estate, lands,
easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or
the occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams,
dam sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all telephone, radio and television systems, air-
conditioning systems and equipment incidental thereto, water
wheels, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, turbines,
electric, gas and other machines, prime movers, regulators,
meters, transformers, generators (including, but not limited to,
engine driven generators and turbo-generator units), motors,
electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water
for any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection therewith
and (except as herein or in the Original Indenture expressly
excepted) all the right, title and interest of the Company in and
to all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection with any
property hereinbefore or in the Original Indenture described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 13.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property and franchises and every
part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 18.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Original Indenture expressly excepted, shall be and are as
fully granted and conveyed hereby and as fully embraced within
the Lien of the Original Indenture and the Lien hereof as if such
property, rights and franchises were now owned by the Company and
were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder, nor is a security
interest therein hereby or by the Original Indenture, as
heretofore supplemented, granted or intended to be granted, and
the same are hereby expressly excepted from the Lien and
operation of the Original Indenture, as heretofore supplemented,
and from the Lien and operation of this Fifty-second Supplemental
Indenture, viz.: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereinbefore or
hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise,
equipment, apparatus, materials or supplies held for the purpose
of sale or other disposition in the usual course of business or
for the purpose of repairing or replacing (in whole or in part)
any rolling stock, buses, motor coaches, automobiles or other
vehicles or aircraft or boats, ships, or other vessels and any
fuel, oil and similar materials and supplies consumable in the
operation of any of the properties of the Company; rolling stock,
buses, motor coaches, automobiles and other vehicles and all
aircraft; boats, ships and other vessels; all timber, minerals,
mineral rights and royalties; (3) bills, notes and other
instruments and accounts receivable, judgments, demands, general
intangibles and choses in action, and all contracts, leases and
operating agreements not specifically pledged hereunder or under
the Mortgage or covenanted so to be; (4) the last day of the term
of any lease or leasehold which may hereafter become subject to
the Lien of the Mortgage; (5) electric energy, gas, water, steam,
ice, and other materials or products generated, manufactured,
produced, or purchased by the Company for sale, distribution or
use in the ordinary course of its business; (6) any natural gas
wells or natural gas leases or natural gas transportation lines
or other works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system; and (7) the Company's franchise to
be a corporation; provided, however, that the property and rights
expressly excepted from the Lien and operation of the Original
Indenture and this Fifty-second Supplemental Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XV of the Original Indenture by reason of the
occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed or in which a security interest has been granted by
the Company as aforesaid, or intended so to be (subject, however,
to Excepted Encumbrances as defined in Section 1.06 of the
Original Indenture), unto The Bank of New York, Trustee, and its
successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Original
Indenture, as heretofore supplemented, this Fifty-second
Supplemental Indenture being supplemental to the Original
Indenture.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Original Indenture, as heretofore supplemented, shall
affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the
Company and the Trustee and the beneficiaries of the trust with
respect to said property, and to the Trustee and its successors
as Trustee of said property, in the same manner and with the same
effect as if said property had been owned by the Company at the
time of the execution of the Original Indenture, and had been
specifically and at length described in and conveyed to said
Trustee by the Original Indenture as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustee and its successors in said trust under the Mortgage, as
follows:
ARTICLE I
SEVENTY-NINTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated
"Pollution Control Series S due April 1, 2030" (herein sometimes
referred to as the "Seventy-ninth Series"), each of which shall
also bear the descriptive title "First Mortgage Bond", and the
form thereof, which shall be established by Resolution of the
Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this
Section specified. Bonds of the Seventy-ninth Series shall
mature on April 1, 2030, shall not bear interest and shall be
issued as fully registered bonds in denominations of Five Hundred
Dollars and, at the option of the Company, in any multiple or
multiples thereof (the exercise of such option to be evidenced by
the execution and delivery thereof); the principal of each said
bond to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, or at the
office or agency of the Company in the City of Dallas, Texas, as
the holder of any said bond may elect, in such coin or currency
of the United States of America as at the time of payment is
legal tender for public and private debts. Bonds of the Seventy-
ninth Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Seventy-ninth Series shall be
initially issued in the aggregate principal amount of $58,270,500
to, and registered in the name of, the trustee under the Trust
Indenture, dated as of April 1, 1995 (hereinafter sometimes
called the "1995 Brazos Revenue Bond Indenture"), of the Brazos
River Authority (hereinafter sometimes called the "Brazos
Authority"), under which its Collateralized Pollution Control
Revenue Bonds (Texas Utilities Electric Company Project) Series
1995A (hereinafter sometimes called the "Series 1995A Brazos
Revenue Bonds") are to be issued, in order to provide the benefit
of a lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Sale and Bond
Amortization Agreement, dated as of April 1, 1995 (hereinafter
sometimes called the "1995 Brazos Agreement"), between the Brazos
Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Seventy-
ninth Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1995
Brazos Revenue Bond Indenture which reduces the corresponding
Installment Payment and (b) the amount, if any, paid by the
Company pursuant to Section 5.04 of the 1995 Brazos Agreement in
respect of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Seventy-
ninth Series as the same shall become due and payable shall have
been fully satisfied and discharged unless and until it shall
have received a written notice from the trustee under the 1995
Brazos Revenue Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that the corresponding Installment Payment or Purchase
Price payment has become due and payable and has not been fully
paid and specifying the amount of funds required to make such
payment.
(II) In the event that any Series 1995A Brazos Revenue
Bonds outstanding under the 1995 Brazos Revenue Bond Indenture
shall become immediately due and payable pursuant to Section 6.02
of the 1995 Brazos Revenue Bond Indenture, upon the occurrence of
an Event of Default under Section 6.01(a) of the 1995 Brazos
Revenue Bond Indenture, all bonds of the Seventy-ninth Series,
then Outstanding, shall be redeemed by the Company, on the date
such Series 1995A Brazos Revenue Bonds shall have become
immediately due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Seventy-ninth Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1995
Brazos Revenue Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that Series 1995A Brazos Revenue Bonds have become
immediately due and payable pursuant to Section 6.02 of the 1995
Brazos Revenue Bond Indenture, upon the occurrence of an Event of
Default under Section 6.01(a) of the 1995 Brazos Revenue Bond
Indenture and specifying the principal amount thereof. Said
notice shall also contain a waiver of notice of such redemption
by the trustee under the 1995 Brazos Revenue Bond Indenture, as
the holder of all bonds of the Seventy-ninth Series then
Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
1 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Seventy-ninth Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Seventy-ninth Series shall not be
transferrable except to any successor trustee under the 1995
Brazos Revenue Bond Indenture, any such transfer to be made at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Seventy-ninth Series.
ARTICLE II
EIGHTIETH SERIES OF BONDS
SECTION 2. There shall be a series of bonds designated
"Pollution Control Series T due April 1, 2030" (herein sometimes
referred to as the "Eightieth Series"), each of which shall also
bear the descriptive title "First Mortgage Bond", and the form
thereof, which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eightieth Series shall mature on April 1, 2030,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Five Hundred Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eightieth
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eightieth Series shall be initially
issued in the aggregate principal amount of $18,400,000 to, and
registered in the name of, the trustee under the Trust Indenture,
dated as of April 1, 1995 (hereinafter sometimes called the "1995
Sabine Revenue Bond Indenture"), of the Sabine River Authority of
Texas (hereinafter sometimes called the "Sabine Authority"),
under which its Collateralized Pollution Control Revenue Bonds
(Texas Utilities Electric Company Project) Series 1995A
(hereinafter sometimes called the "Series 1995A Sabine Revenue
Bonds") are to be issued, in order to provide the benefit of a
lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Sale and Bond
Amortization Agreement, dated as of April 1, 1995 (hereinafter
sometimes called the "1995 Sabine Agreement"), between the Sabine
Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the
Eightieth Series, whether at maturity, upon redemption or
otherwise, in an amount equal to 115% of the sum of (a) the
amount, if any, on deposit in the Debt Service Fund maintained
under the 1995 Sabine Revenue Bond Indenture which reduces the
corresponding Installment Payment and (b) the amount, if any,
paid by the Company pursuant to Section 5.04 of the 1995 Sabine
Agreement in respect of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eightieth
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1995 Sabine
Revenue Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that the corresponding Installment Payment or Purchase
Price payment has become due and payable and has not been fully
paid and specifying the amount of funds required to make such
payment.
(II) In the event that any Series 1995A Sabine Revenue
Bonds outstanding under the 1995 Sabine Revenue Bond Indenture
shall become immediately due and payable pursuant to Section 6.02
of the 1995 Sabine Revenue Bond Indenture, upon the occurrence of
an Event of Default under Section 6.01(a) of the 1995 Sabine
Revenue Bond Indenture, all bonds of the Eightieth Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1995A Sabine Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eightieth Series is required pursuant to the first
paragraph of this subsection (II) unless and until it shall have
received a written notice from the trustee under the 1995 Sabine
Revenue Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that Series 1995A Sabine Revenue Bonds have become
immediately due and payable pursuant to Section 6.02 of the 1995
Sabine Revenue Bond Indenture, upon the occurrence of an Event of
Default under Section 6.01(a) of the 1995 Sabine Revenue Bond
Indenture and specifying the principal amount thereof. Said
notice shall also contain a waiver of notice of such redemption
by the trustee under the 1995 Sabine Revenue Bond Indenture, as
the holder of all bonds of the Eightieth Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
2 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eightieth Series, upon surrender thereof for cancellation at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, shall be exchangeable for a like
aggregate principal amount of bonds of the same series of other
authorized denominations.
Bonds of the Eightieth Series shall not be transferrable
except to any successor trustee under the 1995 Sabine Revenue
Bond Indenture, any such transfer to be made at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eightieth Series.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3. Subject to the amendments provided for in this
Fifty-second Supplemental Indenture, the terms defined in the
Original Indenture, as heretofore supplemented, shall for all
purposes of this Fifty-second Supplemental Indenture have the
meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 4. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fifty-second Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XIX of the Original Indenture
shall apply to and form part of this Fifty-second Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this Fifty-second Supplemental
Indenture.
SECTION 5. Whenever in this Fifty-second Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVIII and XIX
of the Original Indenture, be deemed to include the successors
and assigns of such party, and all the covenants and agreements
in this Fifty-second Supplemental Indenture contained, by or on
behalf of the Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the respective benefits
of the respective successors and assigns of such parties, whether
so expressed or not.
SECTION 6. Nothing in this Fifty-second Supplemental
Indenture expressed or implied, is intended, or shall be
construed to confer upon, or to give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Fifty-second
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifty-second
Supplemental Indenture contained, by or on behalf of the Company,
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Mortgage.
SECTION 7. This Fifty-second Supplemental Indenture shall
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, TEXAS UTILITIES ELECTRIC COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board
and Chief Executive, President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and THE BANK OF NEW
YORK has caused its corporate name to be hereunto affixed, and
this instrument to be signed and sealed by one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to
be attested by one of its Assistant Vice Presidents, Assistant
Secretaries or Assistant Treasurers, all as of the day and year
first above written.
TEXAS UTILITIES ELECTRIC COMPANY
By /s/ H. Dan Farell
-----------------------------
H. DAN FARELL
Senior Vice President
Attest:
/s/ Glen H. Hibbs
------------------------------------
GLEN H. HIBBS
Assistant Secretary
Executed, sealed and delivered by
TEXAS UTILITIES ELECTRIC COMPANY
in the presence of:
/s/ W.E. Patterson
------------------------------------
/s/ Donna Rakestraw
------------------------------------
<PAGE>
THE BANK OF NEW YORK,
Trustee
By /s/ W. N. Gitlin
-------------------------
W. N. GITLIN
Vice President
Attest:
/s/ Robert F. McIntyre
------------------------------------
ROBERT F. MCINTYRE
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ Timothy J. Shea
------------------------------------
/s/ Illegible
------------------------------------
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS )
Before me, a Notary Public in and for said State, on this
day personally appeared H. DAN FARELL, known to me to be the
person whose name is subscribed to the foregoing instrument and
known to me to be a Senior Vice President of TEXAS UTILITIES
ELECTRIC COMPANY, a Texas corporation, and acknowledged to me
that said person executed said instrument for the purposes and
consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this 12th day of
April, 1995.
/s/ Lenae B. Davis
----------------------------------
LENAE B. DAVIS
Notary Public, State of Texas
My Commission Expires June 23, 1996
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this
day personally appeared W.N. GITLIN, known to me to be the person
whose name is subscribed to the foregoing instrument and known to
me to be a Vice President of THE BANK OF NEW YORK, a New York
corporation, and acknowledged to me that said person executed
said instrument for the purposes and consideration therein
expressed, and as the act of said corporation.
Given under my hand and seal of office this 13th day of
April, 1995.
/s/ William J. Cassels
-----------------------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 1996
<PAGE>
SUMMARY OF RECORDING DATA
Fifty-second Supplemental Indenture
Filed April 20, 1995
Office of the Secretary of the State of Texas,
Utility Security Instrument File No. 83-281286
[CONFORMED COPY]
=================================================================
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
(FORMERLY IRVING TRUST COMPANY)
Trustee under the Texas Utilities
Electric Company Mortgage and
Deed of Trust, dated as of
December 1, 1983
__________________
FIFTY-THIRD SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES U,
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES V,
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES W
AND
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES X
__________________
DATED AS OF JUNE 1, 1995
=================================================================
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
<PAGE>
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
FIFTY-THIRD SUPPLEMENTAL INDENTURE
_________________________________
INDENTURE, dated as of June 1, 1995, between TEXAS UTILITIES
ELECTRIC COMPANY, a corporation of the State of Texas, whose
address is Energy Plaza, 1601 Bryan Street, Dallas, Texas 75201
(hereinafter sometimes called the Company), and THE BANK OF NEW
YORK (formerly Irving Trust Company), a corporation of the State
of New York, whose address is 101 Barclay Street, New York, New
York 10286 (hereinafter sometimes called the Trustee), Trustee
under the Mortgage and Deed of Trust, dated as of December 1,
1983 (hereinafter called the Original Indenture, the Original
Indenture and any and all indentures and instruments supplemental
thereto being hereinafter sometimes collectively called the
Mortgage), which Original Indenture was executed and delivered by
the Company to secure the payment of bonds issued or to be issued
under and in accordance with the provisions of the Mortgage,
reference to which Mortgage is made, this Indenture (hereinafter
called the Fifty-third Supplemental Indenture) being supplemental
thereto;
WHEREAS, said Original Indenture was recorded or filed as
required in the State of Texas; and
WHEREAS, the Company executed and delivered to the Trustee
the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture . . . . . . April 1, 1984
Second Supplemental Indenture . . . . . . September 1, 1984
Third Supplemental Indenture . . . . . . April 1, 1985
Fourth Supplemental Indenture . . . . . . August 1, 1985
Fifth Supplemental Indenture . . . . . . September 1, 1985
Sixth Supplemental Indenture . . . . . . December 1, 1985
Seventh Supplemental Indenture . . . . . March 1, 1986
Eighth Supplemental Indenture . . . . . . May 1, 1986
Ninth Supplemental Indenture . . . . . . October 1, 1986
Tenth Supplemental Indenture . . . . . . December 1, 1986
Eleventh Supplemental Indenture . . . . . December 1, 1986
Twelfth Supplemental Indenture . . . . . February 1, 1987
Thirteenth Supplemental Indenture . . . . March 1, 1987
Fourteenth Supplemental Indenture . . . . April 1, 1987
Fifteenth Supplemental Indenture . . . . July 1, 1987
Sixteenth Supplemental Indenture . . . . September 1, 1987
Seventeenth Supplemental Indenture . . . October 1, 1987
Eighteenth Supplemental Indenture . . . . March 1, 1988
Nineteenth Supplemental Indenture . . . . May 1, 1988
DESIGNATION DATED AS OF
----------- -----------
Twentieth Supplemental Indenture . . . . September 1, 1988
Twenty-first Supplemental Indenture . . . November 1, 1988
Twenty-second Supplemental Indenture . . January 1, 1989
Twenty-third Supplemental Indenture . . . August 1, 1989
Twenty-fourth Supplemental Indenture . . November 1, 1989
Twenty-fifth Supplemental Indenture . . . December 1, 1989
Twenty-sixth Supplemental Indenture . . . February 1, 1990
Twenty-seventh Supplemental Indenture . . September 1, 1990
Twenty-eighth Supplemental Indenture . . October 1, 1990
Twenty-ninth Supplemental Indenture . . . October 1, 1990
Thirtieth Supplemental Indenture . . . . March 1, 1991
Thirty-first Supplemental Indenture . . . May 1, 1991
Thirty-second Supplemental Indenture . . July 1, 1991
Thirty-third Supplemental Indenture . . . February 1, 1992
Thirty-fourth Supplemental Indenture . . April 1, 1992
Thirty-fifth Supplemental Indenture . . . April 1, 1992
Thirty-sixth Supplemental Indenture . . . June 1, 1992
Thirty-seventh Supplemental Indenture . . June 1, 1992
Thirty-eighth Supplemental Indenture . . August 1, 1992
Thirty-ninth Supplemental Indenture . . . October 1, 1992
Fortieth Supplemental Indenture . . . . . November 1, 1992
Forty-first Supplemental Indenture . . . December 1, 1992
Forty-second Supplemental Indenture . . . March 1, 1993
Forty-third Supplemental Indenture . . . April 1, 1993
Forty-fourth Supplemental Indenture . . . April 1, 1993
Forty-fifth Supplemental Indenture . . . May 1, 1993
Forty-sixth Supplemental Indenture . . . July 1, 1993
Forty-seventh Supplemental Indenture . . October 1, 1993
Forty-eighth Supplemental Indenture . . . November 1, 1993
Forty-ninth Supplemental Indenture . . . May 1, 1994
Fiftieth Supplemental Indenture . . . . . May 1, 1994
Fifty-first Supplemental Indenture . . . August 1, 1994
Fifty-second Supplemental Indenture . . . April 1, 1995
which supplemental indentures were or are to be recorded or filed
as required in the State of Texas; and
WHEREAS, by the Original Indenture, the Company covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as may be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the Lien of the
Mortgage any property thereafter acquired and intended to be
subject to the Lien thereof; and
WHEREAS, in addition to the property described in the
Original Indenture, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued as of May 31,
1995, in accordance with the provisions of the Original
Indenture, as heretofore supplemented, the following series of
First Mortgage and Collateral Trust Bonds and First Mortgage
Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
------ -------- -----------
12% Series due March 1, 1985 . . $ 1,000,000 $ None
13 5/8% Series due April 1, 2014 100,000,000 None
13 1/2% Series due
September 1, 2014 . . . . . . . 150,000,000 None
12 7/8% Series due April 1, 2015 150,000,000 None
12% Series due August 1, 2015 . . 100,000,000 None
12% Series due September 1, 2015 75,000,000 None
11 1/8% Series due
December 1, 2015 . . . . . . . 150,000,000 None
9 3/8% Series due March 1, 2016 . 200,000,000 None
9 3/4% Series due May 1, 2016 . . 200,000,000 None
7 3/4% Pollution Control Series C 70,000,000 70,000,000
8 1/4% Pollution Control Series D 200,000,000 200,000,000
9 1/2% Series due
December 1, 2016 . . . . . . . 300,000,000 None
9 1/4% Series due
February 1, 2017 . . . . . . . 250,000,000 None
7 7/8% Pollution Control Series E 100,000,000 100,000,000
10 1/2% Series due April 1, 2017 250,000,000 None
9 1/2% Series due July 1, 1997 . 150,000,000 None
10 1/2% Series due July 1, 2017 . 150,000,000 None
9% Pollution Control Series F . 55,000,000 55,000,000
9% Pollution Control Series G . 12,000,000 12,000,000
9 7/8% Pollution Control
Series H . . . . . . . . . . . 112,000,000 112,000,000
9 1/4% Pollution Control
Series I . . . . . . . . . . . 100,000,000 100,000,000
10 3/8% Series due May 1, 1998 . 150,000,000 None
11 3/8% Series due May 1, 2018 . 150,000,000 None
Secured Medium-Term Notes,
Series A . . . . . . . . . . . 300,000,000 30,000,000
10.44% Series due
November 1, 2008 . . . . . . . 150,000,000 150,000,000
8 1/4% Pollution Control
Series J . . . . . . . . . . . 100,000,000 100,000,000
9 1/2% Series due August 1, 1999 200,000,000 200,000,000
10% Series due August 1, 2019 . . 100,000,000 None
9 7/8% Series due
November 1, 2019 . . . . . . . 150,000,000 None
Secured Medium-Term Notes,
Series B . . . . . . . . . . . 150,000,000 130,000,000
8 1/8% Pollution Control
Series K . . . . . . . . . . . 50,000,000 50,000,000
8 1/8% Pollution Control
Series L . . . . . . . . . . . 40,000,000 40,000,000
10 5/8% Series due
September 1, 2020 . . . . . . . 250,000,000 250,000,000
Secured Medium-Term Notes,
Series C . . . . . . . . . . . 150,000,000 125,000,000
8 1/4% Pollution Control Series
due October 1, 2020 . . . . . . 11,000,000 11,000,000
7 7/8% Pollution Control Series
due March 1, 2021 . . . . . . . 100,000,000 100,000,000
9 3/4% Series due May 1, 2021 . . 300,000,000 300,000,000
0% Pollution Control Series M
due June 1, 2021 . . . . . . . 86,250,000 None
0% Pollution Control Series N
due June 1, 2021 . . . . . . . 57,500,000 None
0% Pollution Control Series O
due June 1, 2021 . . . . . . . 57,500,000 None
0% Pollution Control Series P
due June 1, 2021 . . . . . . . 115,000,000 115,000,000
8 1/8% Series due
February 1, 2002 . . . . . . . 150,000,000 150,000,000
8 7/8% Series due
February 1, 2022 . . . . . . . 175,000,000 175,000,000
8 1/4% Series due April 1, 2004 . 100,000,000 100,000,000
9% Series due April 1, 2022 . . . 100,000,000 100,000,000
6 3/4% Pollution Control Series
due April 1, 2022 . . . . . . . 50,000,000 50,000,000
7 1/8% Series due June 1, 1997 . 150,000,000 150,000,000
Principal Principal
Amount Amount
Series Issued Outstanding
------ -------- -----------
8% Series due June 1, 2002 . . . $147,000,000 $147,000,000
6 5/8% Pollution Control Series
due June 1, 2022 . . . . . . . 33,000,000 33,000,000
6 3/8% Series due August 1, 1997 175,000,000 175,000,000
7 3/8% Series due August 1, 2001 150,000,000 150,000,000
8 1/2% Series due August 1, 2024 175,000,000 175,000,000
6.70% Pollution Control Series
due October 1, 2022 . . . . . . 16,935,000 16,935,000
6.55% Pollution Control Series
due October 1, 2022 . . . . . . 40,000,000 40,000,000
7 3/8% Series due
November 1, 1999 . . . . . . . 100,000,000 100,000,000
8 3/4% Series due
November 1, 2023 . . . . . . . 200,000,000 200,000,000
6 1/2% Pollution Control Series
due December 1, 2027 . . . . . 46,660,000 46,660,000
6 3/4% Series due March 1, 2003 . 200,000,000 200,000,000
7 7/8% Series due March 1, 2023 . 300,000,000 300,000,000
6.05% Pollution Control Series
due April 1, 2025 . . . . . . . 90,000,000 90,000,000
6.10% Pollution Control Series
due April 1, 2028 . . . . . . . 50,000,000 50,000,000
5 7/8% Series due April 1, 1998 . 175,000,000 175,000,000
6 3/4% Series due April 1, 2003 . 100,000,000 100,000,000
7 7/8% Series due April 1, 2024 . 225,000,000 225,000,000
0% Pollution Control Series
due June 1, 2023 . . . . . . . 115,000,000 104,650,000
5 3/4% Series due July 1, 1998 . 150,000,000 150,000,000
6 3/4% Series due July 1, 2005 . 100,000,000 100,000,000
7 5/8% Series due July 1, 2025 . 250,000,000 250,000,000
5 1/2% Series due October 1, 1998 125,000,000 125,000,000
6 1/4% Series due October 1, 2004 125,000,000 125,000,000
7 3/8% Series due October 1, 2025 300,000,000 300,000,000
5 1/2% Pollution Control Series
due May 1, 2022 . . . . . . . . 50,000,000 50,000,000
5.55% Pollution Control Series
due May 1, 2022 . . . . . . . . 75,000,000 75,000,000
5.85% Pollution Control Series
due May 1, 2022 . . . . . . . . 33,465,000 33,465,000
Floating Rate Series
due May 1, 1999 . . . . . . . . 300,000,000 300,000,000
Pollution Control Series Q
due May 1, 2029 . . . . . . . . 45,045,500 45,045,500
Pollution Control Series R
due May 1, 2029 . . . . . . . . 45,045,500 45,045,500
0% Series due 1994 . . . . . . . 1,013,831,000 None
Pollution Control Series S
due April 1, 2030 . . . . . . . 58,270,500 58,270,500
Pollution Control Series T
due April 1, 2030 . . . . . . . 18,400,000 18,400,000
which bonds are also hereinafter sometimes called bonds of the
First through Eightieth Series, respectively; and
WHEREAS, Section 2.01 of the Original Indenture provides
that the form of each series of bonds (other than the First
Series) issued thereunder and of the coupons to be attached to
coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company, and that the form of such
series, as established by said Board of Directors, shall specify
the descriptive title of the bonds and various other terms
thereof, and may also have such omissions or modifications or
contain such provisions not prohibited by the provisions of the
Mortgage as the Board of Directors may, in its
discretion, cause to be inserted therein expressing or referring
to the terms and conditions upon which such bonds are to be
issued and/or secured under the Mortgage; and
WHEREAS, Section 22.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly
or impliedly reserved to or in any way conferred upon the Company
by any provision of the Mortgage, whether such power, privilege
or right is in any way restricted or is unrestricted, may be in
whole or in part waived or surrendered or subjected to any
restriction if at the time unrestricted, or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations, restrictions or provisions
for the benefit of any one or more series of bonds issued
thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the
terms and provisions of any series of bonds other than the First
Series, by an instrument in writing executed and acknowledged by
the Company in such manner as would be necessary to entitle a
conveyance of real estate to be recorded in all of the states in
which any property at the time subject to the Lien of the
Mortgage shall be situated; and
WHEREAS, the Company now desires to create four new series
of bonds and to add to its covenants and agreements contained in
the Mortgage certain other covenants and agreements to be
observed by it and to alter and amend in certain respects the
covenants and provisions contained in the Mortgage; and
WHEREAS, the execution and delivery by the Company of this
Fifty-third Supplemental Indenture, and the terms of the bonds of
the Eighty-first, Eighty-second, Eighty-third and Eighty-fourth
Series, hereinafter referred to, have been duly authorized by the
Board of Directors of the Company by appropriate resolutions of
said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the
Company, in consideration of the premises and of Ten Dollars to
it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of both the
principal of and interest and premium, if any, on the bonds from
time to time issued under the Mortgage, according to their tenor
and effect and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and any
modification made as in the Mortgage provided) and of said bonds,
hath granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
and confirmed and granted a security interest in and by these
presents doth grant, bargain, sell, release, convey, assign,
transfer, mortgage, hypothecate, affect, pledge, set over and
confirm and grant a security interest in (subject, however, to
Excepted Encumbrances as defined in Section 1.06 of the Original
Indenture) unto The Bank of New York, Trustee under the Mortgage,
and to its successor or successors in said trust, and to said
Trustee and its successors and assigns forever, all properties of
the Company, real, personal and mixed, of the kind or nature
specifically mentioned in the Original Indenture, as heretofore
supplemented, or of any other kind or nature acquired by the
Company on or after the date of the execution and delivery of the
Original Indenture (except any herein or in the Original
Indenture expressly excepted), now owned or, subject to the
provisions of Section 18.03 of the Original Indenture, hereafter
acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same, the scope and intent of
the foregoing or of any general description contained in this
Fifty-third Supplemental Indenture) all real estate, lands,
easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or
the occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams,
dam sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all telephone, radio and television systems, air-
conditioning systems and equipment incidental thereto, water
wheels, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, turbines,
electric, gas and other machines, prime movers, regulators,
meters, transformers, generators (including, but not limited to,
engine driven generators and turbo-generator units), motors,
electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water
for any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection therewith
and (except as herein or in the Original Indenture expressly
excepted) all the right, title and interest of the Company in and
to all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection with any
property hereinbefore or in the Original Indenture described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 13.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property and franchises and every
part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 18.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Original Indenture expressly excepted, shall be and are as
fully granted and conveyed hereby and as fully embraced within
the Lien of the Original Indenture and the Lien hereof as if such
property, rights and franchises were now owned by the Company and
were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder, nor is a security
interest therein hereby or by the Original Indenture, as
heretofore supplemented, granted or intended to be granted, and
the same are hereby expressly excepted from the Lien and
operation of the Original Indenture, as heretofore supplemented,
and from the Lien and operation of this Fifty-third Supplemental
Indenture, viz.: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereinbefore or
hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise,
equipment, apparatus, materials or supplies held for the purpose
of sale or other disposition in the usual course of business or
for the purpose of repairing or replacing (in whole or in part)
any rolling stock, buses, motor coaches, automobiles or other
vehicles or aircraft or boats, ships, or other vessels and any
fuel, oil and similar materials and supplies consumable in the
operation of any of the properties of the Company; rolling stock,
buses, motor coaches, automobiles and other vehicles and all
aircraft; boats, ships and other vessels; all timber, minerals,
mineral rights and royalties; (3) bills, notes and other
instruments and accounts receivable, judgments, demands, general
intangibles and choses in action, and all contracts, leases and
operating agreements not specifically pledged hereunder or under
the Mortgage or covenanted so to be; (4) the last day of the term
of any lease or leasehold which may hereafter become subject to
the Lien of the Mortgage; (5) electric energy, gas, water, steam,
ice, and other materials or products generated, manufactured,
produced, or purchased by the Company for sale, distribution or
use in the ordinary course of its business; (6) any natural gas
wells or natural gas leases or natural gas transportation lines
or other works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system; and (7) the Company's franchise to
be a corporation; provided, however, that the property and rights
expressly excepted from the Lien and operation of the Original
Indenture and this Fifty-third Supplemental Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XV of the Original Indenture by reason of the
occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed or in which a security interest has been granted by
the Company as aforesaid, or intended so to be (subject, however,
to Excepted Encumbrances as defined in Section 1.06 of the
Original Indenture), unto The Bank of New York, Trustee, and its
successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Original
Indenture, as heretofore supplemented, this Fifty-third
Supplemental Indenture being supplemental to the Original
Indenture.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Original Indenture, as heretofore supplemented, shall
affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the
Company and the Trustee and the beneficiaries of the trust with
respect to said property, and to the Trustee and its successors
as Trustee of said property, in the same manner and with the same
effect as if said property had been owned by the Company at the
time of the execution of the Original Indenture, and had been
specifically and at length described in and conveyed to said
Trustee by the Original Indenture as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustee and its successors in said trust under the Mortgage, as
follows:
ARTICLE I
EIGHTY-FIRST SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated
"Pollution Control Series U" (herein sometimes referred to as the
"Eighty-first Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-first Series shall mature on June 1, 2030,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Two Hundred Fifty Dollars and, at the
option of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-first
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-first Series shall be
initially issued in the aggregate principal amount of
$136,108,250 to, and registered in the name of, the trustee under
the Trust Indenture, dated as of June 1, 1995 (hereinafter
sometimes called the "1995 Brazos Bond Indenture"), of the Brazos
River Authority (hereinafter sometimes called the "Brazos
Authority"), under which its Collateralized Pollution Control
Revenue Refunding Bonds (Texas Utilities Electric Company
Project) Series 1995B (hereinafter sometimes called the "Series
1995B Brazos Revenue Bonds") are to be issued, in order to
provide the benefit of a lien to secure the obligation of the
Company to make the Installment Payments and Purchase Price
payments pursuant to, and as such terms are defined in, the
Installment Payment and Bond Amortization Agreement, dated as of
June 1, 1995 (hereinafter sometimes called the "1995B Brazos
Agreement"), between the Brazos Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
first Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1995
Brazos Bond Indenture which reduces the corresponding Installment
Payment and (b) the amount, if any, paid by the Company pursuant
to Section 5.04 of the 1995B Brazos Agreement in respect of the
corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-first
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1995 Brazos
Bond Indenture, signed by its President, a Vice President, an
Assistant Vice President or a Trust Officer, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1995B Brazos Revenue
Bonds outstanding under the 1995 Brazos Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1995 Brazos Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1995 Brazos Bond
Indenture, all bonds of the Eighty-first Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1995B Brazos Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-first Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1995
Brazos Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that
Series 1995B Brazos Revenue Bonds have become immediately due and
payable pursuant to Section 6.02 of the 1995 Brazos Bond
Indenture, upon the occurrence of an Event of Default under
Section 6.01(a) of the 1995 Brazos Bond Indenture and specifying
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the 1995
Brazos Bond Indenture, as the holder of all bonds of the Eighty-
first Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
1 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-first Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Eighty-first Series shall not be transferrable
except to any successor trustee under the 1995 Brazos Bond
Indenture, any such transfer to be made at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-first Series.
ARTICLE II
EIGHTY-SECOND SERIES OF BONDS
SECTION 2. There shall be a series of bonds designated
"Pollution Control Series V" (herein sometimes referred to as the
"Eighty-second Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-second Series shall mature on June 1, 2030,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Two Hundred Fifty Dollars and, at the
option of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-second
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-second Series shall be
initially issued in the aggregate principal amount of
$136,108,250 to, and registered in the name of, the trustee under
the 1995 Brazos Bond Indenture, under which the Brazos
Authority's Collateralized Pollution Control Revenue Refunding
Bonds (Texas Utilities Electric Company Project) Series 1995C
(hereinafter sometimes called the "Series 1995C Brazos Revenue
Bonds") are to be issued, in order to provide the benefit of a
lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Payment and Bond
Amortization Agreement, dated as of June 1, 1995 (hereinafter
sometimes called the "1995C Brazos Agreement"), between the
Brazos Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
second Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1995
Brazos Bond Indenture which reduces the corresponding Installment
Payment and (b) the amount, if any, paid by the Company pursuant
to Section 5.04 of the 1995C Brazos Agreement in respect of the
corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-
second Series as the same shall become due and payable shall have
been fully satisfied and discharged unless and until it shall
have received a written notice from the trustee under the 1995
Brazos Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1995C Brazos Revenue
Bonds outstanding under the 1995 Brazos Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1995 Brazos Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1995 Brazos Bond
Indenture, all bonds of the Eighty-second Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1995C Brazos Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-second Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1995
Brazos Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that
Series 1995C Brazos Revenue Bonds have become immediately due and
payable pursuant to Section 6.02 of the 1995 Brazos Bond
Indenture, upon the occurrence of an Event of Default under
Section 6.01(a) of the 1995 Brazos Bond Indenture and specifying
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the 1995
Brazos Bond Indenture, as the holder of all bonds of the Eighty-
second Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
2 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-second Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Eighty-second Series shall not be
transferrable except to any successor trustee under the 1995
Brazos Bond Indenture, any such transfer to be made at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-second Series.
ARTICLE III
EIGHTY-THIRD SERIES OF BONDS
SECTION 3. There shall be a series of bonds designated
"Pollution Control Series W" (herein sometimes referred to as the
"Eighty-third Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-third Series shall mature on June 1, 2030,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Five Hundred Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-third
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-third Series shall be
initially issued in the aggregate principal amount of $13,857,500
to, and registered in the name of, the trustee under the Trust
Indenture, dated as of June 1, 1995 (hereinafter sometimes called
the "1995 Sabine Bond Indenture"), of the Sabine River Authority
of Texas (hereinafter sometimes called the "Sabine Authority"),
under which its Collateralized Pollution Control Revenue
Refunding Bonds (Texas Utilities Electric Company Project) Series
1995B (hereinafter sometimes called the "Series 1995B Sabine
Revenue Bonds") are to be issued, in order to provide the benefit
of a lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Payment and Bond
Amortization Agreement, dated as of June 1, 1995 (hereinafter
sometimes called the "1995B Sabine Agreement"), between the
Sabine Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
third Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1995
Sabine Bond Indenture which reduces the corresponding Installment
Payment and (b) the amount, if any, paid by the Company pursuant
to Section 5.04 of the 1995B Sabine Agreement in respect of the
corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-third
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1995 Sabine
Bond Indenture, signed by its President, a Vice President, an
Assistant Vice President or a Trust Officer, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1995B Sabine Revenue
Bonds outstanding under the 1995 Sabine Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1995 Sabine Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1995 Sabine Bond
Indenture, all bonds of the Eighty-third Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1995B Sabine Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-third Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1995
Sabine Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that
Series 1995B Sabine Revenue Bonds have become immediately due and
payable pursuant to Section 6.02 of the 1995 Sabine Bond
Indenture, upon the occurrence of an Event of Default under
Section 6.01(a) of the 1995 Sabine Bond Indenture and specifying
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the 1995
Sabine Bond Indenture, as the holder of all bonds of the Eighty-
third Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
3 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-third Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Eighty-third Series shall not be transferrable
except to any successor trustee under the 1995 Sabine Bond
Indenture, any such transfer to be made at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-third Series.
ARTICLE IV
EIGHTY-FOURTH SERIES OF BONDS
SECTION 4. There shall be a series of bonds designated
"Pollution Control Series X" (herein sometimes referred to as the
"Eighty-fourth Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-fourth Series shall mature on June 1, 2030,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Two Hundred Fifty Dollars and, at the
option of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-fourth
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-fourth Series shall be
initially issued in the aggregate principal amount of $21,246,250
to, and registered in the name of, the trustee under the 1995
Sabine Bond Indenture, under which the Sabine Authority's
Collateralized Pollution Control Revenue Bonds (Texas Utilities
Electric Company Project) Series 1995C (hereinafter sometimes
called the "Series 1995C Sabine Revenue Bonds") are to be issued,
in order to provide the benefit of a lien to secure the
obligation of the Company to make the Installment Payments and
Purchase Price payments pursuant to, and as such terms are
defined in, the Installment Sale and Bond Amortization Agreement,
dated as of June 1, 1995 (hereinafter sometimes called the "1995C
Sabine Agreement"), between the Sabine Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
fourth Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1995
Sabine Bond Indenture which reduces the corresponding Installment
Payment and (b) the amount, if any, paid by the Company pursuant
to Section 5.04 of the 1995C Sabine Agreement in respect of the
corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-
fourth Series as the same shall become due and payable shall have
been fully satisfied and discharged unless and until it shall
have received a written notice from the trustee under the 1995
Sabine Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1995C Sabine Revenue
Bonds outstanding under the 1995 Sabine Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1995 Sabine Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1995 Sabine Bond
Indenture, all bonds of the Eighty-fourth Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1995C Sabine Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-fourth Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1995
Sabine Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that
Series 1995C Sabine Revenue Bonds have become immediately due and
payable pursuant to Section 6.02 of the 1995 Sabine Bond
Indenture, upon the occurrence of an Event of Default under
Section 6.01(a) of the 1995 Sabine Bond Indenture and specifying
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the 1995
Sabine Bond Indenture, as the holder of all bonds of the Eighty-
fourth Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
4 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-fourth Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Eighty-fourth Series shall not be
transferrable except to any successor trustee under the 1995
Sabine Bond Indenture, any such transfer to be made at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-fourth Series.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5. Subject to the amendments provided for in this
Fifty-third Supplemental Indenture, the terms defined in the
Original Indenture, as heretofore supplemented, shall for all
purposes of this Fifty-third Supplemental Indenture have the
meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 6. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fifty-third Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XIX of the Original Indenture
shall apply to and form part of this Fifty-third Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this Fifty-third Supplemental
Indenture.
SECTION 7. Whenever in this Fifty-third Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVIII and XIX
of the Original Indenture, be deemed to include the successors
and assigns of such party, and all the covenants and agreements
in this Fifty-third Supplemental Indenture contained, by or on
behalf of the Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the respective benefits
of the respective successors and assigns of such parties, whether
so expressed or not.
SECTION 8. Nothing in this Fifty-third Supplemental
Indenture expressed or implied, is intended, or shall be
construed to confer upon, or to give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Fifty-third
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifty-third
Supplemental Indenture contained, by or on behalf of the Company,
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Mortgage.
SECTION 9. This Fifty-third Supplemental Indenture shall
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, TEXAS UTILITIES ELECTRIC COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board
and Chief Executive, President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and THE BANK OF NEW
YORK has caused its corporate name to be hereunto affixed, and
this instrument to be signed and sealed by one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to
be attested by one of its Assistant Vice Presidents, Assistant
Secretaries or Assistant Treasurers, all as of the day and year
first above written.
TEXAS UTILITIES ELECTRIC COMPANY
By /s/ H. DAN FARELL
---------------------------
H. DAN FARELL
Senior Vice President
Attest:
/s/ GLEN H. HIBBS
------------------------------ [CORPORATE SEAL]
GLEN H. HIBBS
Assistant Secretary
Executed, sealed and delivered by
TEXAS UTILITIES ELECTRIC COMPANY
in the presence of:
/s/ WAYNE PATTERSON
------------------------------
/s/ DONNA RAKESTRAW
------------------------------
<PAGE>
THE BANK OF NEW YORK,
Trustee
By /s/ W. N. GITLIN
----------------------------
W. N. GITLIN
Vice President
Attest:
/s/ ROBERT F. MCINTYRE [CORPORATE SEAL]
-----------------------------------
ROBERT F. MCINTYRE
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ MARIE E. TRIMBOLI
-----------------------------------
/s/ NANCY GILL
-----------------------------------
<PAGE>
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS)
Before me, a Notary Public in and for said State, on this
day personally appeared H. DAN FARELL, known to me to be the
person whose name is subscribed to the foregoing instrument and
known to me to be a Senior Vice President of TEXAS UTILITIES
ELECTRIC COMPANY, a Texas corporation, and acknowledged to me
that said person executed said instrument for the purposes and
consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this 16th day of
June, 1995.
[NOTARIAL SEAL] /s/ LENAE B. DAVIS
------------------------------
LENAE B. DAVIS
Notary Public, State of Texas
My Commission Expires June 23, 1996
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this
day personally appeared W.N. GITLIN, known to me to be the person
whose name is subscribed to the foregoing instrument and known to
me to be a Vice President of THE BANK OF NEW YORK, a New York
corporation, and acknowledged to me that said person executed
said instrument for the purposes and consideration therein
expressed, and as the act of said corporation.
Given under my hand and seal of office this 19th day of
June, 1995.
[NOTARIAL SEAL] /s/ WILLIAM J. CASSELS
-----------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 1996
<PAGE>
SUMMARY OF RECORDING DATA
Fifty-third Supplemental Indenture
Filed June 22, 1995
Office of the Secretary of the State of Texas,
Utility Security Instrument File No. 83-281286
=================================================================
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
(FORMERLY IRVING TRUST COMPANY)
TRUSTEE UNDER THE TEXAS UTILITIES
ELECTRIC COMPANY MORTGAGE AND
DEED OF TRUST, DATED AS OF
DECEMBER 1, 1983
__________________
FIFTY-FOURTH SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
SECURED MEDIUM-TERM NOTES,
SERIES D,
__________________
DATED AS OF OCTOBER 1, 1995
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
<PAGE>
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
FIFTY-FOURTH SUPPLEMENTAL INDENTURE
_________________________________
INDENTURE, dated as of October 1, 1995, between TEXAS
UTILITIES ELECTRIC COMPANY, a corporation of the State of Texas,
whose address is Energy Plaza, 1601 Bryan Street, Dallas, Texas
75201 (hereinafter sometimes called the Company), and THE BANK OF
NEW YORK (formerly Irving Trust Company), a corporation of the
State of New York, whose address is 101 Barclay Street, New York,
New York 10286 (hereinafter sometimes called the Trustee),
Trustee under the Mortgage and Deed of Trust, dated as of
December 1, 1983 (hereinafter called the Original Indenture, the
Original Indenture and any and all indentures and instruments
supplemental thereto being hereinafter sometimes collectively
called the Mortgage), which Original Indenture was executed and
delivered by the Company to secure the payment of bonds issued or
to be issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is made, this Indenture
(hereinafter called the Fifty-fourth Supplemental Indenture)
being supplemental thereto;
WHEREAS, said Original Indenture was recorded or filed as
required in the State of Texas; and
WHEREAS, the Company executed and delivered to the Trustee
the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture . . . . . . April 1, 1984
Second Supplemental Indenture . . . . . . September 1, 1984
Third Supplemental Indenture . . . . . . April 1, 1985
Fourth Supplemental Indenture . . . . . . August 1, 1985
Fifth Supplemental Indenture . . . . . . September 1, 1985
Sixth Supplemental Indenture . . . . . . December 1, 1985
Seventh Supplemental Indenture . . . . . March 1, 1986
Eighth Supplemental Indenture . . . . . . May 1, 1986
Ninth Supplemental Indenture . . . . . . October 1, 1986
Tenth Supplemental Indenture . . . . . . December 1, 1986
Eleventh Supplemental Indenture . . . . . December 1, 1986
Twelfth Supplemental Indenture . . . . . February 1, 1987
Thirteenth Supplemental Indenture . . . . March 1, 1987
Fourteenth Supplemental Indenture . . . . April 1, 1987
Fifteenth Supplemental Indenture . . . . July 1, 1987
Sixteenth Supplemental Indenture . . . . September 1, 1987
Seventeenth Supplemental Indenture . . . October 1, 1987
Eighteenth Supplemental Indenture . . . . March 1, 1988
DESIGNATION DATED AS OF
----------- -----------
Nineteenth Supplemental Indenture . . . . May 1, 1988
Twentieth Supplemental Indenture . . . . September 1, 1988
Twenty-first Supplemental Indenture . . . November 1, 1988
Twenty-second Supplemental Indenture . . January 1, 1989
Twenty-third Supplemental Indenture . . . August 1, 1989
Twenty-fourth Supplemental Indenture . . November 1, 1989
Twenty-fifth Supplemental Indenture . . . December 1, 1989
Twenty-sixth Supplemental Indenture . . . February 1, 1990
Twenty-seventh Supplemental Indenture . . September 1, 1990
Twenty-eighth Supplemental Indenture . . October 1, 1990
Twenty-ninth Supplemental Indenture . . . October 1, 1990
Thirtieth Supplemental Indenture . . . . March 1, 1991
Thirty-first Supplemental Indenture . . . May 1, 1991
Thirty-second Supplemental Indenture . . July 1, 1991
Thirty-third Supplemental Indenture . . . February 1, 1992
Thirty-fourth Supplemental Indenture . . April 1, 1992
Thirty-fifth Supplemental Indenture . . . April 1, 1992
Thirty-sixth Supplemental Indenture . . . June 1, 1992
Thirty-seventh Supplemental Indenture . . June 1, 1992
Thirty-eighth Supplemental Indenture . . August 1, 1992
Thirty-ninth Supplemental Indenture . . . October 1, 1992
Fortieth Supplemental Indenture . . . . . November 1, 1992
Forty-first Supplemental Indenture . . . December 1, 1992
Forty-second Supplemental Indenture . . . March 1, 1993
Forty-third Supplemental Indenture . . . April 1, 1993
Forty-fourth Supplemental Indenture . . . April 1, 1993
Forty-fifth Supplemental Indenture . . . May 1, 1993
Forty-sixth Supplemental Indenture . . . July 1, 1993
Forty-seventh Supplemental Indenture . . October 1, 1993
Forty-eighth Supplemental Indenture . . . November 1, 1993
Forty-ninth Supplemental Indenture . . . May 1, 1994
Fiftieth Supplemental Indenture . . . . . May 1, 1994
Fifty-first Supplemental Indenture . . . August 1, 1994
Fifty-second Supplemental Indenture . . . April 1, 1995
Fifty-third Supplemental Indenture . . . June 1, 1995
which supplemental indentures were or are to be recorded or filed
as required in the State of Texas; and
WHEREAS, by the Original Indenture, the Company covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as may be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the Lien of the
Mortgage any property thereafter acquired and intended to be
subject to the Lien thereof; and
WHEREAS, in addition to the property described in the
Original Indenture, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued as of September
30, 1995, in accordance with the provisions of the Original
Indenture, as heretofore supplemented, the following series of
First Mortgage and Collateral Trust Bonds and First Mortgage
Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
12% Series due March 1, 1985 . . $ 1,000,000 $ None
13 5/8% Series due April 1, 2014 100,000,000 None
13 1/2% Series due
September 1, 2014 . . . . . . . 150,000,000 None
12 7/8% Series due April 1, 2015 150,000,000 None
12% Series due August 1, 2015 . . 100,000,000 None
12% Series due September 1, 2015 75,000,000 None
11 1/8% Series due
December 1, 2015 . . . . . . . 150,000,000 None
9 3/8% Series due March 1, 2016 . 200,000,000 None
9 3/4% Series due May 1, 2016 . . 200,000,000 None
7 3/4% Pollution Control Series C 70,000,000 57,950,000
8 1/4% Pollution Control Series D 200,000,000 111,215,000
9 1/2% Series due
December 1, 2016 . . . . . . . 300,000,000 None
9 1/4% Series due
February 1, 2017 . . . . . . . 250,000,000 None
7 7/8% Pollution Control
Series E . . . . . . . . . . . 100,000,000 81,305,000
10 1/2% Series due April 1, 2017 250,000,000 None
9 1/2% Series due July 1, 1997 . 150,000,000 None
10 1/2% Series due July 1, 2017 . 150,000,000 None
9% Pollution Control Series F . 55,000,000 51,525,000
9% Pollution Control Series G . 12,000,000 12,000,000
9 7/8% Pollution Control
Series H . . . . . . . . . . . 112,000,000 28,765,000
9 1/4% Pollution Control
Series I . . . . . . . . . . . 100,000,000 54,005,000
10 3/8% Series due May 1, 1998 . 150,000,000 None
11 3/8% Series due May 1, 2018 . 150,000,000 None
Secured Medium-Term Notes,
Series A . . . . . . . . . . . 300,000,000 30,000,000
10.44% Series due
November 1, 2008 . . . . . . . 150,000,000 150,000,000
8 1/4% Pollution Control
Series J . . . . . . . . . . . 100,000,000 100,000,000
9 1/2% Series due August 1, 1999 200,000,000 200,000,000
10% Series due August 1, 2019 . . 100,000,000 None
9 7/8% Series due
November 1, 2019 . . . . . . . 150,000,000 None
Secured Medium-Term Notes,
Series B . . . . . . . . . . . 150,000,000 130,000,000
8 1/8% Pollution Control
Series K . . . . . . . . . . . 50,000,000 50,000,000
8 1/8% Pollution Control
Series L . . . . . . . . . . . 40,000,000 40,000,000
10 5/8% Series due
September 1, 2020 . . . . . . . 250,000,000 250,000,000
Secured Medium-Term Notes,
Series C . . . . . . . . . . . 150,000,000 125,000,000
8 1/4% Pollution Control Series
due October 1, 2020 . . . . . . 11,000,000 11,000,000
7 7/8% Pollution Control Series
due March 1, 2021 . . . . . . . 100,000,000 100,000,000
9 3/4% Series due May 1, 2021 . . 300,000,000 300,000,000
0% Pollution Control Series M
due June 1, 2021 . . . . . . . 86,250,000 None
0% Pollution Control Series N
due June 1, 2021 . . . . . . . 57,500,000 None
0% Pollution Control Series O
due June 1, 2021 . . . . . . . 57,500,000 None
0% Pollution Control Series P
due June 1, 2021 . . . . . . . 115,000,000 115,000,000
8 1/8% Series due
February 1, 2002 . . . . . . . 150,000,000 150,000,000
8 7/8% Series due
February 1, 2022 . . . . . . . 175,000,000 175,000,000
Principal Principal
Amount Amount
Series Issued Outstanding
------ ----------- -----------
8 1/4% Series due April 1, 2004 . 100,000,000 100,000,000
9% Series due April 1, 2022 . . . 100,000,000 100,000,000
6 3/4% Pollution Control Series
due April 1, 2022 . . . . . . . 50,000,000 50,000,000
7 1/8% Series due June 1, 1997 . 150,000,000 150,000,000
8% Series due June 1, 2002 . . . $147,000,000 $147,000,000
6 5/8% Pollution Control Series
due June 1, 2022 . . . . . . . 33,000,000 33,000,000
6 3/8% Series due August 1, 1997 175,000,000 175,000,000
7 3/8% Series due August 1, 2001 150,000,000 150,000,000
8 1/2% Series due August 1, 2024 175,000,000 175,000,000
6.70% Pollution Control Series
due October 1, 2022 . . . . . . 16,935,000 16,935,000
6.55% Pollution Control Series
due October 1, 2022 . . . . . . 40,000,000 40,000,000
7 3/8% Series due
November 1, 1999 . . . . . . . 100,000,000 100,000,000
8 3/4% Series due
November 1, 2023 . . . . . . . 200,000,000 200,000,000
6 1/2% Pollution Control Series
due December 1, 2027 . . . . . 46,660,000 46,660,000
6 3/4% Series due
March 1, 2003 . . . . . . . . . 200,000,000 200,000,000
7 7/8% Series due
March 1, 2023 . . . . . . . . . 300,000,000 300,000,000
6.05% Pollution Control Series
due April 1, 2025 . . . . . . . 90,000,000 90,000,000
6.10% Pollution Control Series
due April 1, 2028 . . . . . . . 50,000,000 50,000,000
5 7/8% Series due April 1, 1998 . 175,000,000 175,000,000
6 3/4% Series due April 1, 2003 . 100,000,000 100,000,000
7 7/8% Series due April 1, 2024 . 225,000,000 225,000,000
0% Pollution Control Series
due June 1, 2023 . . . . . . . 115,000,000 104,650,000
5 3/4% Series due July 1, 1998 . 150,000,000 150,000,000
6 3/4% Series due July 1, 2005 . 100,000,000 100,000,000
7 5/8% Series due July 1, 2025 . 250,000,000 250,000,000
5 1/2% Series due October 1, 1998 125,000,000 125,000,000
6 1/4% Series due October 1, 2004 125,000,000 125,000,000
7 3/8% Series due October 1, 2025 300,000,000 300,000,000
5 1/2% Pollution Control Series
due May 1, 2022 . . . . . . . . 50,000,000 50,000,000
5.55% Pollution Control Series
due May 1, 2022 . . . . . . . . 75,000,000 75,000,000
5.85% Pollution Control Series
due May 1, 2022 . . . . . . . . 33,465,000 33,465,000
Floating Rate Series
due May 1, 1999 . . . . . . . . 300,000,000 300,000,000
Pollution Control Series Q
due May 1, 2029 . . . . . . . . 45,045,500 45,045,500
Pollution Control Series R
due May 1, 2029 . . . . . . . . 45,045,500 45,045,500
0% Series due 1994 . . . . . . . 1,013,831,000 None
Pollution Control Series S
due April 1, 2030 . . . . . . . 58,270,500 58,270,500
Pollution Control Series T
due April 1, 2030 . . . . . . . 18,400,000 18,400,000
Pollution Control Series U . . . 136,108,250 136,108,250
Pollution Control Series V . . . 136,108,250 136,108,250
Pollution Control Series W . . . 13,857,500 13,857,500
Pollution Control Series X . . . 21,246,250 21,246,250
which bonds are also hereinafter sometimes called bonds of the
First through Eighty-fourth Series, respectively; and
WHEREAS, Section 2.01 of the Original Indenture provides
that the form of each series of bonds (other than the First
Series) issued thereunder and of the coupons to be attached to
coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company, and that the form of such
series, as established by said Board of Directors, shall specify
the descriptive title of the bonds and various other terms
thereof, and may also have such omissions or modifications or
contain such provisions not prohibited by the provisions of the
Mortgage as the Board of Directors may, in its discretion, cause
to be inserted therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and/or
secured under the Mortgage; and
WHEREAS, Section 22.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly
or impliedly reserved to or in any way conferred upon the Company
by any provision of the Mortgage, whether such power, privilege
or right is in any way restricted or is unrestricted, may be in
whole or in part waived or surrendered or subjected to any
restriction if at the time unrestricted, or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations, restrictions or provisions
for the benefit of any one or more series of bonds issued
thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the
terms and provisions of any series of bonds other than the First
Series, by an instrument in writing executed and acknowledged by
the Company in such manner as would be necessary to entitle a
conveyance of real estate to be recorded in all of the states in
which any property at the time subject to the Lien of the
Mortgage shall be situated; and
WHEREAS, the Company now desires to create one new series
of bonds and to add to its covenants and agreements contained in
the Mortgage certain other covenants and agreements to be
observed by it and to alter and amend in certain respects the
covenants and provisions contained in the Mortgage; and
WHEREAS, the execution and delivery by the Company of this
Fifty-fourth Supplemental Indenture, and the terms of the bonds
of the Eighty-fifth Series, hereinafter referred to, have been
duly authorized by the Board of Directors of the Company by
appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the
Company, in consideration of the premises and of Ten Dollars to
it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of both the
principal of and interest and premium, if any, on the bonds from
time to time issued under the Mortgage, according to their tenor
and effect and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and any
modification made as in the Mortgage provided) and of said bonds,
hath granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
and confirmed and granted a security interest in and by these
presents doth grant, bargain, sell, release, convey, assign,
transfer, mortgage, hypothecate, affect, pledge, set over and
confirm and grant a security interest in (subject, however, to
Excepted Encumbrances as defined in Section 1.06 of the Original
Indenture) unto The Bank of New York, Trustee under the Mortgage,
and to its successor or successors in said trust, and to said
Trustee and its successors and assigns forever, all properties of
the Company, real, personal and mixed, of the kind or nature
specifically mentioned in the Original Indenture, as heretofore
supplemented, or of any other kind or nature acquired by the
Company on or after the date of the execution and delivery of the
Original Indenture (except any herein or in the Original
Indenture expressly excepted), now owned or, subject to the
provisions of Section 18.03 of the Original Indenture, hereafter
acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same, the scope and intent of
the foregoing or of any general description contained in this
Fifty-fourth Supplemental Indenture) all real estate, lands,
easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or
the occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams,
dam sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all telephone, radio and television systems, air-
conditioning systems and equipment incidental thereto, water
wheels, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, turbines,
electric, gas and other machines, prime movers, regulators,
meters, transformers, generators (including, but not limited to,
engine driven generators and turbo-generator units), motors,
electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water
for any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection therewith
and (except as herein or in the Original Indenture expressly
excepted) all the right, title and interest of the Company in and
to all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection with any
property hereinbefore or in the Original Indenture described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 13.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property and franchises and every
part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 18.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Original Indenture expressly excepted, shall be and are as
fully granted and conveyed hereby and as fully embraced within
the Lien of the Original Indenture and the Lien hereof as if such
property, rights and franchises were now owned by the Company and
were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder, nor is a security
interest therein hereby or by the Original Indenture, as
heretofore supplemented, granted or intended to be granted, and
the same are hereby expressly excepted from the Lien and
operation of the Original Indenture, as heretofore supplemented,
and from the Lien and operation of this Fifty-fourth Supplemental
Indenture, viz.: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereinbefore or
hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise,
equipment, apparatus, materials or supplies held for the purpose
of sale or other disposition in the usual course of business or
for the purpose of repairing or replacing (in whole or in part)
any rolling stock, buses, motor coaches, automobiles or other
vehicles or aircraft or boats, ships, or other vessels and any
fuel, oil and similar materials and supplies consumable in the
operation of any of the properties of the Company; rolling stock,
buses, motor coaches, automobiles and other vehicles and all
aircraft; boats, ships and other vessels; all timber, minerals,
mineral rights and royalties; (3) bills, notes and other
instruments and accounts receivable, judgments, demands, general
intangibles and choses in action, and all contracts, leases and
operating agreements not specifically pledged hereunder or under
the Mortgage or covenanted so to be; (4) the last day of the term
of any lease or leasehold which may hereafter become subject to
the Lien of the Mortgage; (5) electric energy, gas, water, steam,
ice, and other materials or products generated, manufactured,
produced, or purchased by the Company for sale, distribution or
use in the ordinary course of its business; (6) any natural gas
wells or natural gas leases or natural gas transportation lines
or other works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system; and (7) the Company's franchise to
be a corporation; provided, however, that the property and rights
expressly excepted from the Lien and operation of the Original
Indenture and this Fifty-fourth Supplemental Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XV of the Original Indenture by reason of the
occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed or in which a security interest has been granted by
the Company as aforesaid, or intended so to be (subject, however,
to Excepted Encumbrances as defined in Section 1.06 of the
Original Indenture), unto The Bank of New York, Trustee, and its
successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Original
Indenture, as heretofore supplemented, this Fifty-fourth
Supplemental Indenture being supplemental to the Original
Indenture.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Original Indenture, as heretofore supplemented, shall
affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the
Company and the Trustee and the beneficiaries of the trust with
respect to said property, and to the Trustee and its successors
as Trustee of said property, in the same manner and with the same
effect as if said property had been owned by the Company at the
time of the execution of the Original Indenture, and had been
specifically and at length described in and conveyed to said
Trustee by the Original Indenture as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustee and its successors in said trust under the Mortgage, as
follows:
ARTICLE I
EIGHTY-FIFTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated
"Secured Medium-Term Notes, Series D" (herein sometimes referred
to as the "Eighty-fifth Series"), each of which shall also bear
the descriptive title "First Mortgage Bond", and the form
thereof, which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-fifth Series shall be issued as fully
registered bonds in denominations of One Thousand Dollars and, at
the option of the Company, in any multiple or multiples thereof
(the exercise of such option to be evidenced by the execution and
delivery thereof); each bond of the Eighty-fifth Series shall
mature on such date not less than nine months nor more than 30
years from the date of issue, shall bear interest at such rate or
rates, payable semi-annually on January 1 and July 1 in each year
and at maturity (each an interest payment date), and have such
other terms and provisions not inconsistent with the Original
Indenture as the Board of Directors may determine in accordance
with a Resolution filed with the Trustee referring to this Fifty-
fourth Supplemental Indenture; the principal of and interest on
each said bond to be payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, New
York, in such coin or currency of the United States of America as
at the time of payment is legal tender for public and private
debts. Bonds of the Eighty-fifth Series shall be dated as in
Section 2.03 of the Original Indenture provided.
Notwithstanding the foregoing, so long as there is no
existing default in the payment of interest on the bonds of the
Eighty-fifth Series, all bonds of the Eighty-fifth Series
authenticated by the Trustee after the Record Date hereinafter
specified for any interest payment date, and prior to such
interest payment date (unless the Issue Date hereinafter
specified is after such Record Date), shall be dated the date of
authentication, but shall bear interest from such interest
payment date subject to the provisions and exceptions of
subdivision (I) of this Section 1, and the person in whose name
any bond of the Eighty-fifth Series is registered at the close of
business on any Record Date with respect to any interest payment
date shall be entitled to receive the interest payable on such
interest payment date, notwithstanding the cancellation of such
bond of the Eighty-fifth Series, upon any transfer or exchange
thereof subsequent to the Record Date and on or prior to such
interest payment date, subject to the provisions and exceptions
of subdivision (I) of this Section 1. If the Issue Date of the
bonds of the Eighty-fifth Series of a designated interest rate
and maturity is after such Record Date, such bonds shall bear
interest from the Issue Date but payment of interest shall
commence on the second interest payment date succeeding the Issue
Date. "Record Date" for bonds of the Eighty-fifth Series shall
mean February 15 for interest payable March 1 and August 15 for
interest payable September 1, provided that, interest payable on the
maturity date will be payable to the person to whom the principal
of the bond shall be payable. "Issue Date" with respect to bonds
of the Eighty-fifth Series of a designated interest rate and
maturity shall mean the date of the first authentication of bonds
of such designated interest rate and maturity.
(I) Any interest on any bond of the Eighty-fifth
Series which is payable but is not punctually paid or duly
provided for, on any interest payment date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the
registered owner on the relevant Record Date solely by virtue of
such owner having been such owner; and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in subsection A or B below:
A. The Company may elect to make payment of any
Defaulted Interest on the bonds of the Eighty-fifth Series to
the persons in whose names such bonds are registered at the close
of business on a Special Record Date (as hereinafter defined) for
the payment of such Defaulted Interest, which shall be fixed in
the following manner: The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each bond of the Eighty-fifth Series and the date of the
proposed payment (which date shall be such as will enable the
Trustee to comply with the next sentence hereof), and at the same
time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit in or prior to the
date of the proposed payments, such money when deposited to be
held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this subsection provided and not to be
deemed part of the Mortgaged and Pledged Property. Thereupon the
Trustee shall fix a date (herein referred to as a "Special Record
Date") for the payment of such Defaulted Interest which date
shall be not more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of proposed payment. The
Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each registered owner of a bond of the Eighty-fifth
Series at his address as it appears in the bond register not less
than 10 days prior to such Special Record Date. The Trustee may,
in its discretion in the name and at the expense of the Company,
cause a similar notice to be published at least once in one Daily
Newspaper of general circulation in the Borough of Manhattan, The
City of New York, New York and in one Daily Newspaper of general
circulation in the City of Dallas, Texas, but such publication
shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid
to the persons in whose names the bonds of the Eighty-fifth
Series are registered on such Special Record Date and shall no
longer be payable pursuant to the following subsection B.
B. The Company may make payment of any Defaulted
Interest on the bonds of the Eighty-fifth Series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such bonds may be listed and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this subsection, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
bond of the Eighty-fifth Series delivered under the Mortgage upon
transfer of or in exchange for or in lieu of any other bond shall
carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other bond and each such bond
shall bear interest from such date, that neither gain nor loss in
interest shall result from such transfer, exchange or substitution.
(II) Each bond of the Eighty-fifth Series may be redeemable
either at the option of the Company or pursuant to the
requirements of the Mortgage (including, among other
requirements, the application of cash deposited with the Trustee
pursuant to the provisions of Section 9.14 of the Mortgage or
with Proceeds of Released Property), in whole at any time, or in
part from time to time, prior to maturity, upon notice, as
provided in Section 12.02 of the Original Indenture, mailed at
least thirty (30) days prior to the date fixed for redemption as
the Board of Directors may determine in accordance with a
Resolution filed with the Trustee referring to this Fifty-fourth
Supplemental Indenture.
(III) At the option of the registered owner, any bonds
of the Eighty-fifth Series, upon surrender thereof for
cancellation at the office or agency of the Company in the
Borough of Manhattan, The City of New York , New York, shall be
exchangeable for a like aggregate principal amount of bonds of
the same series of other authorized denominations, which have the
same Issue Date, maturity date, interest rate or rates, and
redemption provisions, if any.
Bonds of the Eighty-fifth Series shall be transferable,
upon the surrender thereof for cancellation, together with a
written instrument of transfer in form approved by the registrar
duly executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough
of Manhattan, The City New York, New York.
Upon any exchange or transfer of bonds of the Eighty-fifth
Series, the Company may make a charge therefor sufficient to
reimburse it for any tax or taxes or other governmental charge,
as provided in Section 2.05 of the Original Indenture, but the
Company hereby waives any right to make a charge in addition
thereto for any exchange of bonds of the Eighty-fifth Series.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2. Subject to the amendments provided for in this
Fifty-fourth Supplemental Indenture, the terms defined in the
Original Indenture, as heretofore supplemented, shall for all
purposes of this Fifty-fourth Supplemental Indenture have the
meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 3. The holders of bonds of the Eighty-fifth Series
consent that the Company may, but shall not be obligated to, fix
a record date for the purpose of determining the holders of bonds
of the Eighty-fifth Series entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, those persons
who were holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent
to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be holders
after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
SECTION 4. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fifty-fourth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XIX of the Original Indenture
shall apply to and form part of this Fifty-fourth Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this Fifty-fourth Supplemental
Indenture.
SECTION 5. Whenever in this Fifty-fourth Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVIII and XIX
of the Original Indenture, be deemed to include the successors
and assigns of such party, and all the covenants and agreements
in this Fifty-fourth Supplemental Indenture contained, by or on
behalf of the Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the respective benefits
of the respective successors and assigns of such parties, whether
so expressed or not.
SECTION 6. Nothing in this Fifty-fourth Supplemental
Indenture expressed or implied, is intended, or shall be
construed to confer upon, or to give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Fifty-fourth
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifty-fourth
Supplemental Indenture contained, by or on behalf of the Company,
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Mortgage.
SECTION 7. This Fifty-fourth Supplemental Indenture shall
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, TEXAS UTILITIES ELECTRIC COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board
and Chief Executive, President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and THE BANK OF NEW
YORK has caused its corporate name to be hereunto affixed, and
this instrument to be signed and sealed by one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to
be attested by one of its Assistant Vice Presidents, Assistant
Secretaries or Assistant Treasurers, all as of the day and year
first above written.
TEXAS UTILITIES ELECTRIC COMPANY
By /s/ H. Dan Farell
------------------------------
H. DAN FARELL
Senior Vice President
Attest:
/s/ Glen H. Hibbs
-------------------------------
GLEN H. HIBBS
Assistant Secretary
Executed, sealed and delivered by
TEXAS UTILITIES ELECTRIC COMPANY
in the presence of:
/s/ W.E. Patterson
----------------------------------
/s/ Donna Rakestraw
----------------------------------
<PAGE>
THE BANK OF NEW YORK,
Trustee
By /s/ W.N. Gitlin
---------------------------
W. N. GITLIN
Vice President
Attest:
/s/ Mary Lagumina
--------------------------------
MARY LAGUMINA
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ Michael Gallo
------------------------------
/s/ Lawrence E. Gerquest
------------------------------
<PAGE>
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS)
Before me, a Notary Public in and for said State, on this
day personally appeared H. DAN FARELL, known to me to be the
person whose name is subscribed to the foregoing instrument and
known to me to be a Senior Vice President of TEXAS UTILITIES
ELECTRIC COMPANY, a Texas corporation, and acknowledged to me
that said person executed said instrument for the purposes and
consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this 18th day of
October, 1995.
/s/ Lenae B. Davis
_____________________________
LENAE B. DAVIS
Notary Public, State of Texas
My Commission Expires June 23, 1996
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this
day personally appeared W.N. GITLIN, known to me to be the person
whose name is subscribed to the foregoing instrument and known to
me to be a Vice President of THE BANK OF NEW YORK, a New York
corporation, and acknowledged to me that said person executed
said instrument for the purposes and consideration therein
expressed, and as the act of said corporation.
Given under my hand and seal of office this 20th day of
October, 1995.
/s/ William J. Cassels
------------------------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 1996
<PAGE>
SUMMARY OF RECORDING DATA
Fifty-fourth Supplemental Indenture
Filed November 1, 1995
Office of the Secretary of the State of Texas,
Utility Security Instrument File No. 83-281286
[CONFORMED COPY]
=================================================================
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
(FORMERLY IRVING TRUST COMPANY)
TRUSTEE UNDER THE TEXAS UTILITIES
ELECTRIC COMPANY MORTGAGE AND
DEED OF TRUST, DATED AS OF
DECEMBER 1, 1983
__________________
FIFTY-FIFTH SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES Y,
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES Z,
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES AA
AND
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES AB
__________________
DATED AS OF MARCH 1, 1996
=================================================================
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
<PAGE>
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
FIFTY-FIFTH SUPPLEMENTAL INDENTURE
_________________________________
INDENTURE, dated as of March 1, 1996, between TEXAS
UTILITIES ELECTRIC COMPANY, a corporation of the State of Texas,
whose address is Energy Plaza, 1601 Bryan Street, Dallas, Texas
75201 (hereinafter sometimes called the Company), and THE BANK OF
NEW YORK (formerly Irving Trust Company), a corporation of the
State of New York, whose address is 101 Barclay Street, New York,
New York 10286 (hereinafter sometimes called the Trustee),
Trustee under the Mortgage and Deed of Trust, dated as of
December 1, 1983 (hereinafter called the Original Indenture, the
Original Indenture and any and all indentures and instruments
supplemental thereto being hereinafter sometimes collectively
called the Mortgage), which Original Indenture was executed and
delivered by the Company to secure the payment of bonds issued or
to be issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is made, this Indenture
(hereinafter called the Fifty-fifth Supplemental Indenture) being
supplemental thereto;
WHEREAS, said Original Indenture was recorded or filed as
required in the State of Texas; and
WHEREAS, the Company executed and delivered to the Trustee
the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture . . . . . . April 1, 1984
Second Supplemental Indenture . . . . . . September 1, 1984
Third Supplemental Indenture . . . . . . April 1, 1985
Fourth Supplemental Indenture . . . . . . August 1, 1985
Fifth Supplemental Indenture . . . . . . September 1, 1985
Sixth Supplemental Indenture . . . . . . December 1, 1985
Seventh Supplemental Indenture . . . . . March 1, 1986
Eighth Supplemental Indenture . . . . . . May 1, 1986
Ninth Supplemental Indenture . . . . . . October 1, 1986
Tenth Supplemental Indenture . . . . . . December 1, 1986
Eleventh Supplemental Indenture . . . . . December 1, 1986
Twelfth Supplemental Indenture . . . . . February 1, 1987
Thirteenth Supplemental Indenture . . . . March 1, 1987
Fourteenth Supplemental Indenture . . . . April 1, 1987
Fifteenth Supplemental Indenture . . . . July 1, 1987
Sixteenth Supplemental Indenture . . . . September 1, 1987
Seventeenth Supplemental Indenture . . . October 1, 1987
Eighteenth Supplemental Indenture . . . . March 1, 1988
Nineteenth Supplemental Indenture . . . . May 1, 1988
DESIGNATION DATED AS OF
----------- -----------
Twentieth Supplemental Indenture . . . . September 1, 1988
Twenty-first Supplemental Indenture . . . November 1, 1988
Twenty-second Supplemental Indenture . . January 1, 1989
Twenty-third Supplemental Indenture . . . August 1, 1989
Twenty-fourth Supplemental Indenture . . November 1, 1989
Twenty-fifth Supplemental Indenture . . . December 1, 1989
Twenty-sixth Supplemental Indenture . . . February 1, 1990
Twenty-seventh Supplemental Indenture . . September 1, 1990
Twenty-eighth Supplemental Indenture . . October 1, 1990
Twenty-ninth Supplemental Indenture . . . October 1, 1990
Thirtieth Supplemental Indenture . . . . March 1, 1991
Thirty-first Supplemental Indenture . . . May 1, 1991
Thirty-second Supplemental Indenture . . July 1, 1991
Thirty-third Supplemental Indenture . . . February 1, 1992
Thirty-fourth Supplemental Indenture . . April 1, 1992
Thirty-fifth Supplemental Indenture . . . April 1, 1992
Thirty-sixth Supplemental Indenture . . . June 1, 1992
Thirty-seventh Supplemental Indenture . . June 1, 1992
Thirty-eighth Supplemental Indenture . . August 1, 1992
Thirty-ninth Supplemental Indenture . . . October 1, 1992
Fortieth Supplemental Indenture . . . . . November 1, 1992
Forty-first Supplemental Indenture . . . December 1, 1992
Forty-second Supplemental Indenture . . . March 1, 1993
Forty-third Supplemental Indenture . . . April 1, 1993
Forty-fourth Supplemental Indenture . . . April 1, 1993
Forty-fifth Supplemental Indenture . . . May 1, 1993
Forty-sixth Supplemental Indenture . . . July 1, 1993
Forty-seventh Supplemental Indenture . . October 1, 1993
Forty-eighth Supplemental Indenture . . . November 1, 1993
Forty-ninth Supplemental Indenture . . . May 1, 1994
Fiftieth Supplemental Indenture . . . . . May 1, 1994
Fifty-first Supplemental Indenture . . . August 1, 1994
Fifty-second Supplemental Indenture . . . April 1, 1995
Fifty-third Supplemental Indenture . . June 1, 1995
Fifty-fourth Supplemental Indenture . . October 1, 1995
which supplemental indentures were or are to be recorded or filed
as required in the State of Texas; and
WHEREAS, by the Original Indenture, the Company covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as may be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the Lien of the
Mortgage any property thereafter acquired and intended to be
subject to the Lien thereof; and
WHEREAS, in addition to the property described in the
Original Indenture, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued as of February
29, 1996, in accordance with the provisions of the Original
Indenture, as heretofore supplemented, the following series of
First Mortgage and Collateral Trust Bonds and First Mortgage
Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
12% Series due March 1, 1985 . . $ 1,000,000 $ None
13 5/8% Series due April 1, 2014 100,000,000 None
13 1/2% Series due
September 1, 2014 . . . . . . . 150,000,000 None
12 7/8% Series due April 1, 2015 150,000,000 None
12% Series due August 1, 2015 . . 100,000,000 None
12% Series due September 1, 2015 75,000,000 None
11 1/8% Series due
December 1, 2015 . . . . . . . 150,000,000 None
9 3/8% Series due March 1, 2016 . 200,000,000 None
9 3/4% Series due May 1, 2016 . . 200,000,000 None
7 3/4% Pollution Control Series C 70,000,000 57,950,000
8 1/4% Pollution Control Series D 200,000,000 111,215,000
9 1/2% Series due
December 1, 2016 . . . . . . . 300,000,000 None
9 1/4% Series due
February 1, 2017 . . . . . . . 250,000,000 None
7 7/8% Pollution Control
Series E . . . . . . . . . . . 100,000,000 81,305,000
10 1/2% Series due April 1, 2017 250,000,000 None
9 1/2% Series due July 1, 1997 . 150,000,000 None
10 1/2% Series due July 1, 2017 . 150,000,000 None
9% Pollution Control Series F . 55,000,000 51,525,000
9% Pollution Control Series G . 12,000,000 12,000,000
9 7/8% Pollution Control
Series H . . . . . . . . . . . 112,000,000 28,765,000
9 1/4% Pollution Control
Series I . . . . . . . . . . . 100,000,000 54,005,000
10 3/8% Series due May 1, 1998 . 150,000,000 None
11 3/8% Series due May 1, 2018 . 150,000,000 None
Secured Medium-Term Notes,
Series A . . . . . . . . . . . 300,000,000 30,000,000
10.44% Series due
November 1, 2008 . . . . . . . 150,000,000 150,000,000
8 1/4% Pollution Control
Series J . . . . . . . . . . . 100,000,000 100,000,000
9 1/2% Series due August 1, 1999 200,000,000 200,000,000
10% Series due August 1, 2019 . . 100,000,000 None
9 7/8% Series due
November 1, 2019 . . . . . . . 150,000,000 None
Secured Medium-Term Notes,
Series B . . . . . . . . . . . 150,000,000 120,000,000
8 1/8% Pollution Control
Series K . . . . . . . . . . . 50,000,000 50,000,000
8 1/8% Pollution Control
Series L . . . . . . . . . . . 40,000,000 40,000,000
10 5/8% Series due
September 1, 2020 . . . . . . . 250,000,000 None
Secured Medium-Term Notes,
Series C . . . . . . . . . . . 150,000,000 36,000,000
8 1/4% Pollution Control Series
due October 1, 2020 . . . . . . 11,000,000 11,000,000
7 7/8% Pollution Control Series
due March 1, 2021 . . . . . . . 100,000,000 100,000,000
9 3/4% Series due May 1, 2021 . . 300,000,000 300,000,000
0% Pollution Control Series M
due June 1, 2021 . . . . . . . 86,250,000 None
0% Pollution Control Series N
due June 1, 2021 . . . . . . . 57,500,000 None
0% Pollution Control Series O
due June 1, 2021 . . . . . . . 57,500,000 None
0% Pollution Control Series P
due June 1, 2021 . . . . . . . 115,000,000 104,650,000
8 1/8% Series due
February 1, 2002 . . . . . . . 150,000,000 150,000,000
8 7/8% Series due
February 1, 2022 . . . . . . . 175,000,000 175,000,000
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- ------------
8 1/4% Series due April 1, 2004 . $100,000,000 $100,000,000
9% Series due April 1, 2022 . . . 100,000,000 100,000,000
6 3/4% Pollution Control Series
due April 1, 2022 . . . . . . . 50,000,000 50,000,000
7 1/8% Series due June 1, 1997 . 150,000,000 150,000,000
8% Series due June 1, 2002 . . . 147,000,000 147,000,000
6 5/8% Pollution Control Series
due June 1, 2022 . . . . . . . 33,000,000 33,000,000
6 3/8% Series due August 1, 1997 175,000,000 175,000,000
7 3/8% Series due August 1, 2001 150,000,000 150,000,000
8 1/2% Series due August 1, 2024 175,000,000 175,000,000
6.70% Pollution Control Series
due October 1, 2022 . . . . . . 16,935,000 16,935,000
6.55% Pollution Control Series
due October 1, 2022 . . . . . . 40,000,000 40,000,000
7 3/8% Series due
November 1, 1999 . . . . . . . 100,000,000 100,000,000
8 3/4% Series due
November 1, 2023 . . . . . . . 200,000,000 200,000,000
6 1/2% Pollution Control Series
due December 1, 2027 . . . . . 46,660,000 46,660,000
6 3/4% Series due March 1, 2003 . 200,000,000 200,000,000
7 7/8% Series due March 1, 2023 . 300,000,000 300,000,000
6.05% Pollution Control Series
due April 1, 2025 . . . . . . . 90,000,000 90,000,000
6.10% Pollution Control Series
due April 1, 2028 . . . . . . . 50,000,000 50,000,000
5 7/8% Series due April 1, 1998 . 175,000,000 175,000,000
6 3/4% Series due April 1, 2003 . 100,000,000 100,000,000
7 7/8% Series due April 1, 2024 . 225,000,000 225,000,000
0% Pollution Control Series
due June 1, 2023 . . . . . . . 115,000,000 115,000,000
5 3/4% Series due July 1, 1998 . 150,000,000 150,000,000
6 3/4% Series due July 1, 2005 . 100,000,000 100,000,000
7 5/8% Series due July 1, 2025 . 250,000,000 250,000,000
5 1/2% Series due October 1, 1998 125,000,000 125,000,000
6 1/4% Series due October 1, 2004 125,000,000 125,000,000
7 3/8% Series due October 1, 2025 300,000,000 300,000,000
5 1/2% Pollution Control Series
due May 1, 2022 . . . . . . . . 50,000,000 50,000,000
5.55% Pollution Control Series
due May 1, 2022 . . . . . . . . 75,000,000 75,000,000
5.85% Pollution Control Series
due May 1, 2022 . . . . . . . . 33,465,000 33,465,000
Floating Rate Series
due May 1, 1999 . . . . . . . . 300,000,000 300,000,000
Pollution Control Series Q
due May 1, 2029 . . . . . . . . 45,045,500 45,045,500
Pollution Control Series R
due May 1, 2029 . . . . . . . . 45,045,500 45,045,500
0% Series due 1994 . . . . . . . 1,013,831,000 None
Pollution Control Series S
due April 1, 2030 . . . . . . . 58,270,500 58,270,500
Pollution Control Series T
due April 1, 2030 . . . . . . . 18,400,000 18,400,000
Pollution Control Series U . . . 136,108,250 136,108,250
Pollution Control Series V . . . 136,108,250 136,108,250
Pollution Control Series W . . . 13,857,500 13,857,500
Pollution Control Series X . . . 21,246,250 21,246,250
Secured Medium-Term Notes,
Series D . . . . . . . . . . . 201,150,000 201,150,000
which bonds are also hereinafter sometimes called bonds of the
First through Eighty-fifth Series, respectively; and
WHEREAS, Section 2.01 of the Original Indenture provides
that the form of each series of bonds (other than the First
Series) issued thereunder and of the coupons to be attached to
coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company, and that the form of such
series, as established by said Board of Directors, shall specify
the descriptive title of the bonds and various other terms
thereof, and may also have such omissions or modifications or
contain such provisions not prohibited by the provisions of the
Mortgage as the Board of Directors may, in its discretion, cause
to be inserted therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and/or
secured under the Mortgage; and
WHEREAS, Section 22.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly
or impliedly reserved to or in any way conferred upon the Company
by any provision of the Mortgage, whether such power, privilege
or right is in any way restricted or is unrestricted, may be in
whole or in part waived or surrendered or subjected to any
restriction if at the time unrestricted, or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations, restrictions or provisions
for the benefit of any one or more series of bonds issued
thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the
terms and provisions of any series of bonds other than the First
Series, by an instrument in writing executed and acknowledged by
the Company in such manner as would be necessary to entitle a
conveyance of real estate to be recorded in all of the states in
which any property at the time subject to the Lien of the
Mortgage shall be situated; and
WHEREAS, the Company now desires to create four new series
of bonds and to add to its covenants and agreements contained in
the Mortgage certain other covenants and agreements to be
observed by it and to alter and amend in certain respects the
covenants and provisions contained in the Mortgage; and
WHEREAS, the execution and delivery by the Company of this
Fifty-fifth Supplemental Indenture, and the terms of the bonds of
the Eighty-sixth, Eighty-seventh, Eighty-eighth and Eighty-ninth
Series, hereinafter referred to, have been duly authorized by the
Board of Directors of the Company by appropriate resolutions of
said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the
Company, in consideration of the premises and of Ten Dollars to
it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of both the
principal of and interest and premium, if any, on the bonds from
time to time issued under the Mortgage, according to their tenor
and effect and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and any
modification made as in the Mortgage provided) and of said bonds,
hath granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
and confirmed and granted a security interest in and by these
presents doth grant, bargain, sell, release, convey, assign,
transfer, mortgage, hypothecate, affect, pledge, set over and
confirm and grant a security interest in (subject, however, to
Excepted Encumbrances as defined in Section 1.06 of the Original
Indenture) unto The Bank of New York, Trustee under the Mortgage,
and to its successor or successors in said trust, and to said
Trustee and its successors and assigns forever, all properties of
the Company, real, personal and mixed, of the kind or nature
specifically mentioned in the Original Indenture, as heretofore
supplemented, or of any other kind or nature acquired by the
Company on or after the date of the execution and delivery of the
Original Indenture (except any herein or in the Original
Indenture expressly excepted), now owned or, subject to the
provisions of Section 18.03 of the Original Indenture, hereafter
acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same, the scope and intent of
the foregoing or of any general description contained in this
Fifty-fifth Supplemental Indenture) all real estate, lands,
easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or
the occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams,
dam sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all telephone, radio and television systems, air-
conditioning systems and equipment incidental thereto, water
wheels, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, turbines,
electric, gas and other machines, prime movers, regulators,
meters, transformers, generators (including, but not limited to,
engine driven generators and turbo-generator units), motors,
electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water
for any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection therewith
and (except as herein or in the Original Indenture expressly
excepted) all the right, title and interest of the Company in and
to all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection with any
property hereinbefore or in the Original Indenture described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 13.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property and franchises and every
part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 18.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Original Indenture expressly excepted, shall be and are as
fully granted and conveyed hereby and as fully embraced within
the Lien of the Original Indenture and the Lien hereof as if such
property, rights and franchises were now owned by the Company and
were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder, nor is a security
interest therein hereby or by the Original Indenture, as
heretofore supplemented, granted or intended to be granted, and
the same are hereby expressly excepted from the Lien and
operation of the Original Indenture, as heretofore supplemented,
and from the Lien and operation of this Fifty-fifth Supplemental
Indenture, viz.: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereinbefore or
hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise,
equipment, apparatus, materials or supplies held for the purpose
of sale or other disposition in the usual course of business or
for the purpose of repairing or replacing (in whole or in part)
any rolling stock, buses, motor coaches, automobiles or other
vehicles or aircraft or boats, ships, or other vessels and any
fuel, oil and similar materials and supplies consumable in the
operation of any of the properties of the Company; rolling stock,
buses, motor coaches, automobiles and other vehicles and all
aircraft; boats, ships and other vessels; all timber, minerals,
mineral rights and royalties; (3) bills, notes and other
instruments and accounts receivable, judgments, demands, general
intangibles and choses in action, and all contracts, leases and
operating agreements not specifically pledged hereunder or under
the Mortgage or covenanted so to be; (4) the last day of the term
of any lease or leasehold which may hereafter become subject to
the Lien of the Mortgage; (5) electric energy, gas, water, steam,
ice, and other materials or products generated, manufactured,
produced, or purchased by the Company for sale, distribution or
use in the ordinary course of its business; (6) any natural gas
wells or natural gas leases or natural gas transportation lines
or other works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system; and (7) the Company's franchise to
be a corporation; provided, however, that the property and rights
expressly excepted from the Lien and operation of the Original
Indenture and this Fifty-fifth Supplemental Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XV of the Original Indenture by reason of the
occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed or in which a security interest has been granted by
the Company as aforesaid, or intended so to be (subject, however,
to Excepted Encumbrances as defined in Section 1.06 of the
Original Indenture), unto The Bank of New York, Trustee, and its
successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Original
Indenture, as heretofore supplemented, this Fifty-fifth
Supplemental Indenture being supplemental to the Original
Indenture.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Original Indenture, as heretofore supplemented, shall
affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the
Company and the Trustee and the beneficiaries of the trust with
respect to said property, and to the Trustee and its successors
as Trustee of said property, in the same manner and with the same
effect as if said property had been owned by the Company at the
time of the execution of the Original Indenture, and had been
specifically and at length described in and conveyed to said
Trustee by the Original Indenture as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustee and its successors in said trust under the Mortgage, as
follows:
ARTICLE I
EIGHTY-SIXTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated
"Pollution Control Series Y" (herein sometimes referred to as the
"Eighty-sixth Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-sixth Series shall mature on March 1, 2026,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Five Hundred Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-sixth
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-sixth Series shall be
initially issued in the aggregate principal amount of $28,819,000
to, and registered in the name of, the trustee under the Trust
Indenture, dated as of March 1, 1996 (hereinafter sometimes
called the "1996A Brazos Bond Indenture"), of the Brazos River
Authority (hereinafter sometimes called the "Brazos Authority"),
under which its Collateralized Pollution Control Revenue
Refunding Bonds (Texas Utilities Electric Company Project) Series
1996A (hereinafter sometimes called the "Series 1996A Brazos
Revenue Bonds") are to be issued, in order to provide the benefit
of a lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Sale and Bond
Amortization Agreement, dated as of March 1, 1996 (hereinafter
sometimes called the "1996A Brazos Agreement"), between the
Brazos Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
sixth Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1996A
Brazos Bond Indenture which reduces the corresponding Installment
Payment and (b) the amount, if any, paid by the Company pursuant
to Section 5.04 of the 1996A Brazos Agreement in respect of the
corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-sixth
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1996A Brazos
Bond Indenture, signed by its President, a Vice President, an
Assistant Vice President or a Trust Officer, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1996A Brazos Revenue
Bonds outstanding under the 1996A Brazos Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1996A Brazos Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1996A Brazos Bond
Indenture, all bonds of the Eighty-sixth Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1996A Brazos Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-sixth Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1996A
Brazos Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that
Series 1996A Brazos Revenue Bonds have become immediately due and
payable pursuant to Section 6.02 of the 1996A Brazos Bond
Indenture, upon the occurrence of an Event of Default under
Section 6.01(a) of the 1996A Brazos Bond Indenture and specifying
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the
1996A Brazos Bond Indenture, as the holder of all bonds of the
Eighty-sixth Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
1 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-sixth Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Eighty-sixth Series shall not be transferrable
except to any successor trustee under the 1996A Brazos Bond
Indenture, any such transfer to be made at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-sixth Series.
ARTICLE II
EIGHTY-SEVENTH SERIES OF BONDS
SECTION 2. There shall be a series of bonds designated
"Pollution Control Series Z" (herein sometimes referred to as the
"Eighty-seventh Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-seventh Series shall mature on March 1, 2026,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Five Hundred Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-seventh
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-seventh Series shall be
initially issued in the aggregate principal amount of $66,642,500
to, and registered in the name of, the trustee under the Trust
Indenture, dated as of March 1, 1996 (hereinafter sometimes
called the "1996A Sabine Bond Indenture"), of the Sabine River
Authority of Texas (hereinafter sometimes called the "Sabine
Authority"), under which its Collateralized Pollution Control
Revenue Refunding Bonds (Texas Utilities Electric Company
Project) Series 1996A (hereinafter sometimes called the "Series
1996A Sabine Revenue Bonds") are to be issued, in order to
provide the benefit of a lien to secure the obligation of the
Company to make the Installment Payments and Purchase Price
payments pursuant to, and as such terms are defined in, the
Installment Sale and Bond Amortization Agreement, dated as of
March 1, 1996 (hereinafter sometimes called the "1996A Sabine
Agreement"), between the Sabine Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
seventh Series, whether at maturity, upon redemption or
otherwise, in an amount equal to 115% of the sum of (a) the
amount, if any, on deposit in the Debt Service Fund maintained
under the 1996A Sabine Bond Indenture which reduces the
corresponding Installment Payment and (b) the amount, if any,
paid by the Company pursuant to Section 5.04 of the 1996A Sabine
Agreement in respect of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-
seventh Series as the same shall become due and payable shall
have been fully satisfied and discharged unless and until it
shall have received a written notice from the trustee under the
1996A Sabine Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that the corresponding Installment Payment or Purchase
Price payment has become due and payable and has not been fully
paid and specifying the amount of funds required to make such
payment.
(II) In the event that any Series 1996A Sabine Revenue
Bonds outstanding under the 1996A Sabine Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1996A Sabine Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1996A Sabine Bond
Indenture, all bonds of the Eighty-seventh Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1996A Sabine Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-seventh Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1996A
Sabine Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that
Series 1996A Sabine Revenue Bonds have become immediately due and
payable pursuant to Section 6.02 of the 1996A Sabine Bond
Indenture, upon the occurrence of an Event of Default under
Section 6.01(a) of the 1996A Sabine Bond Indenture and specifying
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the
1996A Sabine Bond Indenture, as the holder of all bonds of the
Eighty-seventh Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
2 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-seventh Series, upon surrender thereof for
cancellation at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, shall be
exchangeable for a like aggregate principal amount of bonds of
the same series of other authorized denominations.
Bonds of the Eighty-seventh Series shall not be
transferrable except to any successor trustee under the 1996A
Sabine Bond Indenture, any such transfer to be made at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-seventh Series.
ARTICLE III
EIGHTY-EIGHTH SERIES OF BONDS
SECTION 3. There shall be a series of bonds designated
"Pollution Control Series AA" (herein sometimes referred to as
the "Eighty-eighth Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-eighth Series shall mature on March 1, 2026,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Five Hundred Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-eighth
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-eighth Series shall be
initially issued in the aggregate principal amount of $28,750,000
to, and registered in the name of, the trustee under the Trust
Indenture, dated as of March 1, 1996 (hereinafter sometimes
called the "1996B Sabine Bond Indenture"), of the Sabine
Authority, under which its Collateralized Pollution Control
Revenue Bonds (Texas Utilities Electric Company Project) Series
1996B (hereinafter sometimes called the "Series 1996B Sabine
Revenue Bonds") are to be issued, in order to provide the benefit
of a lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Sale and Bond
Amortization Agreement, dated as of March 1, 1996 (hereinafter
sometimes called the "1996B Sabine Agreement"), between the
Sabine Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
eighth Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1996B
Sabine Bond Indenture which reduces the corresponding Installment
Payment and (b) the amount, if any, paid by the Company pursuant
to Section 5.04 of the 1996B Sabine Agreement in respect of the
corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-
eighth Series as the same shall become due and payable shall have
been fully satisfied and discharged unless and until it shall
have received a written notice from the trustee under the 1996B
Sabine Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1996B Sabine Revenue
Bonds outstanding under the 1996B Sabine Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1996B Sabine Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1996B Sabine Bond
Indenture, all bonds of the Eighty-eighth Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1996B Sabine Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-eighth Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1996B
Sabine Bond Indenture, signed by its President, a Vice President,
an Assistant Vice President or a Trust Officer, stating that
Series 1996B Sabine Revenue Bonds have become immediately due and
payable pursuant to Section 6.02 of the 1996B Sabine Bond
Indenture, upon the occurrence of an Event of Default under
Section 6.01(a) of the 1996B Sabine Bond Indenture and specifying
the principal amount thereof. Said notice shall also contain a
waiver of notice of such redemption by the trustee under the
1996B Sabine Bond Indenture, as the holder of all bonds of the
Eighty-eighth Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
3 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-eighth Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Eighty-eighth Series shall not be
transferrable except to any successor trustee under the 1996B
Sabine Bond Indenture, any such transfer to be made at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-eighth Series.
ARTICLE IV
EIGHTY-NINTH SERIES OF BONDS
SECTION 4. There shall be a series of bonds designated
"Pollution Control Series AB" (herein sometimes referred to as
the "Eighty-ninth Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Eighty-ninth Series shall mature on March 1, 2026,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Five Hundred Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Eighty-ninth
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Eighty-ninth Series shall be
initially issued in the aggregate principal amount of $28,750,000
to, and registered in the name of, the trustee under the Trust
Indenture, dated as of March 1, 1996 (hereinafter sometimes
called the "1996A Trinity Bond Indenture"), of the Trinity River
Authority of Texas (hereinafter sometimes called the "Trinity
Authority"), under which its Collateralized Pollution Control
Revenue Bonds (Texas Utilities Electric Company Project) Series
1996A (hereinafter sometimes called the "Series 1996A Trinity
Revenue Bonds") are to be issued, in order to provide the benefit
of a lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Sale and Bond
Amortization Agreement, dated as of March 1, 1996 (hereinafter
sometimes called the "1996A Trinity Agreement"), between the
Trinity Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Eighty-
ninth Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1996A
Trinity Bond Indenture which reduces the corresponding
Installment Payment and (b) the amount, if any, paid by the
Company pursuant to Section 5.04 of the 1996A Trinity Agreement
in respect of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Eighty-ninth
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1996A
Trinity Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that the corresponding Installment Payment or Purchase
Price payment has become due and payable and has not been fully
paid and specifying the amount of funds required to make such
payment.
(II) In the event that any Series 1996A Trinity Revenue
Bonds outstanding under the 1996A Trinity Bond Indenture shall
become immediately due and payable pursuant to Section 6.02 of
the 1996A Trinity Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1996A Trinity Bond
Indenture, all bonds of the Eighty-ninth Series, then
Outstanding, shall be redeemed by the Company, on the date such
Series 1996A Trinity Revenue Bonds shall have become immediately
due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Eighty-ninth Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1996A
Trinity Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that Series 1996A Trinity Revenue Bonds have become
immediately due and payable pursuant to Section 6.02 of the 1996A
Trinity Bond Indenture, upon the occurrence of an Event of
Default under Section 6.01(a) of the 1996A Trinity Bond Indenture
and specifying the principal amount thereof. Said notice shall
also contain a waiver of notice of such redemption by the trustee
under the 1996A Trinity Bond Indenture, as the holder of all
bonds of the Eighty-ninth Series then Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
4 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Eighty-ninth Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Eighty-ninth Series shall not be transferrable
except to any successor trustee under the 1996A Trinity Bond
Indenture, any such transfer to be made at the office or agency
of the Company in the Borough of Manhattan, The City of New York,
New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Eighty-ninth Series.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5. Subject to the amendments provided for in this
Fifty-fifth Supplemental Indenture, the terms defined in the
Original Indenture, as heretofore supplemented, shall for all
purposes of this Fifty-fifth Supplemental Indenture have the
meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 6. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fifty-fifth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XIX of the Original Indenture
shall apply to and form part of this Fifty-fifth Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this Fifty-fifth Supplemental
Indenture.
SECTION 7. Whenever in this Fifty-fifth Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVIII and XIX
of the Original Indenture, be deemed to include the successors
and assigns of such party, and all the covenants and agreements
in this Fifty-fifth Supplemental Indenture contained, by or on
behalf of the Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the respective benefits
of the respective successors and assigns of such parties, whether
so expressed or not.
SECTION 8. Nothing in this Fifty-fifth Supplemental
Indenture expressed or implied, is intended, or shall be
construed to confer upon, or to give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Fifty-fifth
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifty-fifth
Supplemental Indenture contained, by or on behalf of the Company,
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Mortgage.
SECTION 9. This Fifty-fifth Supplemental Indenture shall
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, TEXAS UTILITIES ELECTRIC COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board
and Chief Executive, President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and THE BANK OF NEW
YORK has caused its corporate name to be hereunto affixed, and
this instrument to be signed and sealed by one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to
be attested by one of its Assistant Vice Presidents, Assistant
Secretaries or Assistant Treasurers, all as of the day and year
first above written.
TEXAS UTILITIES ELECTRIC COMPANY
By /s/ RON SEIDEL
----------------------------
RON SEIDEL
Vice President
Attest:
/s/ GLEN H. HIBBS [CORPORATE SEAL]
-------------------------
GLEN H. HIBBS
Assistant Secretary
Executed, sealed and delivered by
TEXAS UTILITIES ELECTRIC COMPANY
in the presence of:
/s/ W. E. PATTERSON
------------------------------
/s/ DONNA RAKESTRAW
------------------------------
<PAGE>
THE BANK OF NEW YORK,
Trustee
By /s/ W. N. GITLIN
----------------------------
W. N. GITLIN
Vice President
Attest:
/s/ STEPHEN J. GIURLANDO [CORPORATE SEAL]
------------------------------
STEPHEN J. GIURLANDO
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ JOYCELYN M. LYNCH
------------------------------
/s/ MICHAEL GALLO
------------------------------
<PAGE>
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS)
Before me, a Notary Public in and for said State, on this
day personally appeared RON SEIDEL, known to me to be the person
whose name is subscribed to the foregoing instrument and known to
me to be a Vice President of TEXAS UTILITIES ELECTRIC COMPANY, a
Texas corporation, and acknowledged to me that said person
executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this 21st day of
March, 1996.
[NOTARIAL SEAL] /s/ LENAE B. DAVIS
---------------------------
LENAE B. DAVIS
Notary Public, State of Texas
My Commission Expires June 23, 1996
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this
day personally appeared W.N. GITLIN, known to me to be the person
whose name is subscribed to the foregoing instrument and known to
me to be a Vice President of THE BANK OF NEW YORK, a New York
corporation, and acknowledged to me that said person executed
said instrument for the purposes and consideration therein
expressed, and as the act of said corporation.
Given under my hand and seal of office this 22nd day of
March, 1996.
[NOTARIAL SEAL] /s/ WILLIAM J. CASSELS
----------------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 1996
<PAGE>
SUMMARY OF RECORDING DATA
Fifty-fifth Supplemental Indenture
Filed March 28, 1996
Office of the Secretary of the State of Texas,
Utility Security Instrument File No. 83-281286
=================================================================
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
(formerly Irving Trust Company)
Trustee under the Texas Utilities
Electric Company Mortgage and
Deed of Trust, dated as of
December 1, 1983
-------------------
FIFTY-SIXTH SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES AC
AND
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES AD
---------------------
DATED AS OF SEPTEMBER 1, 1996
=================================================================
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
<PAGE>
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
FIFTY-SIXTH SUPPLEMENTAL INDENTURE
-----------------------------
INDENTURE, dated as of September 1, 1996, between TEXAS
UTILITIES ELECTRIC COMPANY, a corporation of the State of Texas,
whose address is Energy Plaza, 1601 Bryan Street, Dallas, Texas
75201 (hereinafter sometimes called the Company), and THE BANK OF
NEW YORK (formerly Irving Trust Company), a corporation of the
State of New York, whose address is 101 Barclay Street, New York,
New York 10286 (hereinafter sometimes called the Trustee),
Trustee under the Mortgage and Deed of Trust, dated as of
December 1, 1983 (hereinafter called the Original Indenture, the
Original Indenture and any and all indentures and instruments
supplemental thereto being hereinafter sometimes collectively
called the Mortgage), which Original Indenture was executed and
delivered by the Company to secure the payment of bonds issued or
to be issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is made, this Indenture
(hereinafter called the Fifty-sixth Supplemental Indenture) being
supplemental thereto;
WHEREAS, said Original Indenture was recorded or filed as
required in the State of Texas; and
WHEREAS, the Company executed and delivered to the Trustee
the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture . . . . . . April 1, 1984
Second Supplemental Indenture . . . . . . September 1, 1984
Third Supplemental Indenture . . . . . . April 1, 1985
Fourth Supplemental Indenture . . . . . . August 1, 1985
Fifth Supplemental Indenture . . . . . . September 1, 1985
Sixth Supplemental Indenture . . . . . . December 1, 1985
Seventh Supplemental Indenture . . . . . March 1, 1986
Eighth Supplemental Indenture . . . . . . May 1, 1986
Ninth Supplemental Indenture . . . . . . October 1, 1986
Tenth Supplemental Indenture . . . . . . December 1, 1986
Eleventh Supplemental Indenture . . . . . December 1, 1986
Twelfth Supplemental Indenture . . . . . February 1, 1987
Thirteenth Supplemental Indenture . . . . March 1, 1987
Fourteenth Supplemental Indenture . . . . April 1, 1987
Fifteenth Supplemental Indenture . . . . July 1, 1987
Sixteenth Supplemental Indenture . . . . September 1, 1987
Seventeenth Supplemental Indenture . . . October 1, 1987
Eighteenth Supplemental Indenture . . . . March 1, 1988
Nineteenth Supplemental Indenture . . . . May 1, 1988
DESIGNATION DATED AS OF
----------- -----------
Twentieth Supplemental Indenture . . . . September 1, 1988
Twenty-first Supplemental Indenture . . . November 1, 1988
Twenty-second Supplemental Indenture . . January 1, 1989
Twenty-third Supplemental Indenture . . . August 1, 1989
Twenty-fourth Supplemental Indenture . . November 1, 1989
Twenty-fifth Supplemental Indenture . . . December 1, 1989
Twenty-sixth Supplemental Indenture . . . February 1, 1990
Twenty-seventh Supplemental Indenture . . September 1, 1990
Twenty-eighth Supplemental Indenture . . October 1, 1990
Twenty-ninth Supplemental Indenture . . . October 1, 1990
Thirtieth Supplemental Indenture . . . . March 1, 1991
Thirty-first Supplemental Indenture . . . May 1, 1991
Thirty-second Supplemental Indenture . . July 1, 1991
Thirty-third Supplemental Indenture . . . February 1, 1992
Thirty-fourth Supplemental Indenture . . April 1, 1992
Thirty-fifth Supplemental Indenture . . . April 1, 1992
Thirty-sixth Supplemental Indenture . . . June 1, 1992
Thirty-seventh Supplemental Indenture . . June 1, 1992
Thirty-eighth Supplemental Indenture . . August 1, 1992
Thirty-ninth Supplemental Indenture . . . October 1, 1992
Fortieth Supplemental Indenture . . . . . November 1, 1992
Forty-first Supplemental Indenture . . . December 1, 1992
Forty-second Supplemental Indenture . . . March 1, 1993
Forty-third Supplemental Indenture . . . April 1, 1993
Forty-fourth Supplemental Indenture . . . April 1, 1993
Forty-fifth Supplemental Indenture . . . May 1, 1993
Forty-sixth Supplemental Indenture . . . July 1, 1993
Forty-seventh Supplemental Indenture . . October 1, 1993
Forty-eighth Supplemental Indenture . . . November 1, 1993
Forty-ninth Supplemental Indenture . . . May 1, 1994
Fiftieth Supplemental Indenture . . . . . May 1, 1994
Fifty-first Supplemental Indenture . . . August 1, 1994
Fifty-second Supplemental Indenture . . . April 1, 1995
Fifty-third Supplemental Indenture . . June 1, 1995
Fifty-fourth Supplemental Indenture . . October 1, 1995
Fifty-fifth Supplemental Indenture . . March 1, 1996
which supplemental indentures were or are to be recorded or filed
as required in the State of Texas; and
WHEREAS, by the Original Indenture, the Company covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as may be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the Lien of the
Mortgage any property thereafter acquired and intended to be
subject to the Lien thereof; and
WHEREAS, in addition to the property described in the
Original Indenture, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued as of August 31,
1996, in accordance with the provisions of the Original
Indenture, as heretofore supplemented, the following series of
First Mortgage and Collateral Trust Bonds and First Mortgage
Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
12% Series due March 1, 1985 $ 1,000,000 $ None
13 5/8% Series due April 1, 2014 100,000,000 None
13 1/2% Series due September 1, 2014 150,000,000 None
12 7/8% Series due April 1, 2015 150,000,000 None
12% Series due August 1, 2015 100,000,000 None
12% Series due September 1, 2015 75,000,000 None
11 1/8% Series due December 1, 2015 150,000,000 None
9 3/8% Series due March 1, 2016 200,000,000 None
9 3/4% Series due May 1, 2016 200,000,000 None
7 3/4% Pollution Control Series C 70,000,000 None
8 1/4% Pollution Control Series D 200,000,000 111,215,000
9 1/2% Series due December 1, 2016 300,000,000 None
9 1/4% Series due February 1, 2017 250,000,000 None
7 7/8% Pollution Control Series E 100,000,000 81,305,000
10 1/2% Series due April 1, 2017 250,000,000 None
9 1/2% Series due July 1, 1997 150,000,000 None
10 1/2% Series due July 1, 2017 150,000,000 None
9% Pollution Control Series F 55,000,000 51,525,000
9% Pollution Control Series G 12,000,000 12,000,000
9 7/8% Pollution Control Series H 112,000,000 28,765,000
9 1/4% Pollution Control Series I 100,000,000 54,005,000
10 3/8% Series due May 1, 1998 150,000,000 None
11 3/8% Series due May 1, 2018 150,000,000 None
Secured Medium-Term Notes, Series A 300,000,000 30,000,000
10.44% Series due November 1, 2008 150,000,000 100,000,000
8 1/4% Pollution Control Series J 100,000,000 100,000,000
9 1/2% Series due August 1, 1999 200,000,000 200,000,000
10% Series due August 1, 2019 100,000,000 None
9 7/8% Series due November 1, 2019 150,000,000 None
Secured Medium-Term Notes, Series B 150,000,000 120,000,000
8 1/8% Pollution Control Series K 50,000,000 50,000,000
8 1/8% Pollution Control Series L 40,000,000 40,000,000
10 5/8% Series due September 1, 2020 250,000,000 None
Secured Medium-Term Notes, Series C 150,000,000 36,000,000
8 1/4% Pollution Control Series
due October 1, 2020 11,000,000 11,000,000
7 7/8% Pollution Control Series
due March 1, 2021 100,000,000 100,000,000
9 3/4% Series due May 1, 2021 300,000,000 280,855,000
0% Pollution Control Series M
due June 1, 2021 86,250,000 None
0% Pollution Control Series N
due June 1, 2021 57,500,000 None
0% Pollution Control Series O
due June 1, 2021 57,500,000 None
0% Pollution Control Series P
due June 1, 2021 115,000,000 75,831,000
8 1/8% Series due February 1, 2002 150,000,000 150,000,000
8 7/8% Series due February 1, 2022 175,000,000 175,000,000
8 1/4% Series due April 1, 2004 $100,000,000 $100,000,000
9% Series due April 1, 2022 100,000,000 100,000,000
6 3/4% Pollution Control Series
due April 1, 2022 50,000,000 50,000,000
7 1/8% Series due June 1, 1997 150,000,000 150,000,000
8% Series due June 1, 2002 147,000,000 147,000,000
6 5/8% Pollution Control Series
due June 1, 2022 33,000,000 33,000,000
6 3/8% Series due August 1, 1997 175,000,000 175,000,000
7 3/8% Series due August 1, 2001 150,000,000 150,000,000
8 1/2% Series due August 1, 2024 175,000,000 163,000,000
6.70% Pollution Control Series
due October 1, 2022 16,935,000 16,935,000
6.55% Pollution Control Series
due October 1, 2022 40,000,000 40,000,000
7 3/8% Series due November 1, 1999 100,000,000 100,000,000
8 3/4% Series due November 1, 2023 200,000,000 195,550,000
6 1/2% Pollution Control Series
due December 1, 2027 46,660,000 46,660,000
6 3/4% Series due March 1, 2003 200,000,000 200,000,000
7 7/8% Series due March 1, 2023 300,000,000 300,000,000
6.05% Pollution Control Series
due April 1, 2025 90,000,000 90,000,000
6.10% Pollution Control Series
due April 1, 2028 50,000,000 50,000,000
5 7/8% Series due April 1, 1998 175,000,000 175,000,000
6 3/4% Series due April 1, 2003 100,000,000 100,000,000
7 7/8% Series due April 1, 2024 225,000,000 225,000,000
0% Pollution Control Series
due June 1, 2023 115,000,000 115,000,000
5 3/4% Series due July 1, 1998 150,000,000 150,000,000
6 3/4% Series due July 1, 2005 100,000,000 100,000,000
7 5/8% Series due July 1, 2025 250,000,000 250,000,000
5 1/2% Series due October 1, 1998 125,000,000 125,000,000
6 1/4% Series due October 1, 2004 125,000,000 125,000,000
7 3/8% Series due October 1, 2025 300,000,000 253,000,000
5 1/2% Pollution Control Series
due May 1, 2022 50,000,000 50,000,000
5.55% Pollution Control Series
due May 1, 2022 75,000,000 75,000,000
5.85% Pollution Control Series
due May 1, 2022 33,465,000 33,465,000
Floating Rate Series
due May 1, 1999 300,000,000 300,000,000
Pollution Control Series Q
due May 1, 2029 45,045,500 45,045,500
Pollution Control Series R
due May 1, 2029 45,045,500 45,045,500
0% Series due 1994 1,013,831,000 None
Pollution Control Series S
due April 1, 2030 58,270,500 58,270,500
Pollution Control Series T
due April 1, 2030 18,400,000 18,400,000
Pollution Control Series U 136,108,250 136,108,250
Pollution Control Series V 136,108,250 136,108,250
Pollution Control Series W 13,857,500 13,857,500
Pollution Control Series X 21,246,250 21,246,250
Secured Medium-Term Notes, Series D 201,150,000 201,150,000
Pollution Control Series Y 28,819,000 28,819,000
Pollution Control Series Z 66,642,500 66,642,500
Pollution Control Series AA 28,750,000 28,750,000
Pollution Control Series AB 28,750,000 28,750,000
which bonds are also hereinafter sometimes called bonds of the
First through Eighty-ninth Series, respectively; and
WHEREAS, Section 2.01 of the Original Indenture provides
that the form of each series of bonds (other than the First
Series) issued thereunder and of the coupons to be attached to
coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company, and that the form of such
series, as established by said Board of Directors, shall specify
the descriptive title of the bonds and various other terms
thereof, and may also have such omissions or modifications or
contain such provisions not prohibited by the provisions of the
Mortgage as the Board of Directors may, in its discretion, cause
to be inserted therein expressing or referring to the terms and
conditions upon which such bonds are to be issued and/or
secured under the Mortgage; and
WHEREAS, Section 22.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly
or impliedly reserved to or in any way conferred upon the Company
by any provision of the Mortgage, whether such power, privilege
or right is in any way restricted or is unrestricted, may be in
whole or in part waived or surrendered or subjected to any
restriction if at the time unrestricted, or to additional
restriction if already restricted, and the Company may enter into
any further covenants, limitations, restrictions or provisions
for the benefit of any one or more series of bonds issued
thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the
terms and provisions of any series of bonds other than the First
Series, by an instrument in writing executed and acknowledged by
the Company in such manner as would be necessary to entitle a
conveyance of real estate to be recorded in all of the states in
which any property at the time subject to the Lien of the
Mortgage shall be situated; and
WHEREAS, the Company now desires to create two new series
of bonds and to add to its covenants and agreements contained in
the Mortgage certain other covenants and agreements to be
observed by it and to alter and amend in certain respects the
covenants and provisions contained in the Mortgage; and
WHEREAS, the execution and delivery by the Company of this
Fifty-sixth Supplemental Indenture, and the terms of the bonds of
the Ninetieth and Ninety-first Series, hereinafter referred to,
have been duly authorized by the Board of Directors of the
Company by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the
Company, in consideration of the premises and of Ten Dollars to
it duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of both the
principal of and interest and premium, if any, on the bonds from
time to time issued under the Mortgage, according to their tenor
and effect and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and any
modification made as in the Mortgage provided) and of said bonds,
hath granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
and confirmed and granted a security interest in and by these
presents doth grant, bargain, sell, release, convey, assign,
transfer, mortgage, hypothecate, affect, pledge, set over and
confirm and grant a security interest in (subject, however, to
Excepted Encumbrances as defined in Section 1.06 of the Original
Indenture) unto The Bank of New York, Trustee under the Mortgage,
and to its successor or successors in said trust, and to said
Trustee and its successors and assigns forever, all properties of
the Company, real, personal and mixed, of the kind or nature
specifically mentioned in the Original Indenture, as heretofore
supplemented, or of any other kind or nature acquired by the
Company on or after the date of the execution and delivery of the
Original Indenture (except any herein or in the Original
Indenture expressly excepted), now owned or, subject to the
provisions of Section 18.03 of the Original Indenture, hereafter
acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same, the scope and intent of
the foregoing or of any general description contained in this
Fifty-sixth Supplemental Indenture) all real estate, lands,
easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or
the occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams,
dam sites, aqueducts, and all other rights or means for
appropriating, conveying, storing and supplying water; all rights
of way and roads; all plants for the generation of electricity by
steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental
thereto; all telephone, radio and television systems, air-
conditioning systems and equipment incidental thereto, water
wheels, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, turbines,
electric, gas and other machines, prime movers, regulators,
meters, transformers, generators (including, but not limited to,
engine driven generators and turbo-generator units), motors,
electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and
transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission
and distribution of electric current, gas, steam heat or water
for any purpose including towers, poles, wires, cables, pipes,
conduits, ducts and all apparatus for use in connection therewith
and (except as herein or in the Original Indenture expressly
excepted) all the right, title and interest of the Company in and
to all other property of any kind or nature appertaining to
and/or used and/or occupied and/or enjoyed in connection with any
property hereinbefore or in the Original Indenture described.
TOGETHER WITH all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances
belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder
and remainders and (subject to the provisions of Section 13.01 of
the Original Indenture) the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter
acquire in and to the aforesaid property and franchises and every
part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 18.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or
in the Original Indenture expressly excepted, shall be and are as
fully granted and conveyed hereby and as fully embraced within
the Lien of the Original Indenture and the Lien hereof as if such
property, rights and franchises were now owned by the Company and
were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected,
pledged, set over or confirmed hereunder, nor is a security
interest therein hereby or by the Original Indenture, as
heretofore supplemented, granted or intended to be granted, and
the same are hereby expressly excepted from the Lien and
operation of the Original Indenture, as heretofore supplemented,
and from the Lien and operation of this Fifty-sixth Supplemental
Indenture, viz.: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereinbefore or
hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise,
equipment, apparatus, materials or supplies held for the purpose
of sale or other disposition in the usual course of business or
for the purpose of repairing or replacing (in whole or in part)
any rolling stock, buses, motor coaches, automobiles or other
vehicles or aircraft or boats, ships, or other vessels and any
fuel, oil and similar materials and supplies consumable in the
operation of any of the properties of the Company; rolling stock,
buses, motor coaches, automobiles and other vehicles and all
aircraft; boats, ships and other vessels; all timber, minerals,
mineral rights and royalties; (3) bills, notes and other
instruments and accounts receivable, judgments, demands, general
intangibles and choses in action, and all contracts, leases and
operating agreements not specifically pledged hereunder or under
the Mortgage or covenanted so to be; (4) the last day of the term
of any lease or leasehold which may hereafter become subject to
the Lien of the Mortgage; (5) electric energy, gas, water, steam,
ice, and other materials or products generated, manufactured,
produced, or purchased by the Company for sale, distribution or
use in the ordinary course of its business; (6) any natural gas
wells or natural gas leases or natural gas transportation lines
or other works or property used primarily and principally in the
production of natural gas or its transportation, primarily for
the purpose of sale to natural gas customers or to a natural gas
distribution or pipeline company, up to the point of connection
with any distribution system; and (7) the Company's franchise to
be a corporation; provided, however, that the property and rights
expressly excepted from the Lien and operation of the Original
Indenture and this Fifty-sixth Supplemental Indenture in the
above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that
the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XV of the Original Indenture by reason of the
occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed or in which a security interest has been granted by
the Company as aforesaid, or intended so to be (subject, however,
to Excepted Encumbrances as defined in Section 1.06 of the
Original Indenture), unto The Bank of New York, Trustee, and its
successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Original
Indenture, as heretofore supplemented, this Fifty-sixth
Supplemental Indenture being supplemental to the Original
Indenture.
AND IT IS HEREBY COVENANTED by the Company that all the
terms, conditions, provisos, covenants and provisions contained
in the Original Indenture, as heretofore supplemented, shall
affect and apply to the property hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the
Company and the Trustee and the beneficiaries of the trust with
respect to said property, and to the Trustee and its successors
as Trustee of said property, in the same manner and with the same
effect as if said property had been owned by the Company at the
time of the execution of the Original Indenture, and had been
specifically and at length described in and conveyed to said
Trustee by the Original Indenture as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustee and its successors in said trust under the Mortgage, as
follows:
ARTICLE I
NINETIETH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated
"Pollution Control Series AC" (herein sometimes referred to as
the "Ninetieth Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Ninetieth Series shall mature on June 1, 2030, shall
not bear interest and shall be issued as fully registered bonds
in denominations of One Hundred Twenty-five Dollars and, at the
option of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Ninetieth
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Ninetieth Series shall be initially
issued in the aggregate principal amount of $70,397,250 to, and
registered in the name of, the trustee under the Trust Indenture,
dated as of September 1, 1996 (hereinafter sometimes called the
"1996B and 1996C Brazos Bond Indenture"), of the Brazos River
Authority (hereinafter sometimes called the "Brazos Authority"),
under which its Collateralized Pollution Control Revenue
Refunding Bonds (Texas Utilities Electric Company Project) Series
1996B (hereinafter sometimes called the "Series 1996B Brazos
Revenue Bonds") are to be issued, in order to provide the benefit
of a lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Sale and Bond
Amortization Agreement, dated as of September 1, 1996
(hereinafter sometimes called the "1996B Brazos Agreement"),
between the Brazos Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the
Ninetieth Series, whether at maturity, upon redemption or
otherwise, in an amount equal to 115% of the sum of (a) the
amount, if any, on deposit in the Debt Service Fund maintained
under the 1996B and 1996C Brazos Bond Indenture which reduces the
corresponding Installment Payment and (b) the amount, if any,
paid by the Company pursuant to Section 5.04 of the 1996B Brazos
Agreement in respect of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Ninetieth
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1996B Brazos
Bond Indenture, signed by its President, a Vice President, an
Assistant Vice President or a Trust Officer, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1996B Brazos Revenue
Bonds outstanding under the 1996B and 1996C Brazos Bond Indenture
shall become immediately due and payable pursuant to Section 6.02
of the 1996B and 1996C Brazos Bond Indenture, upon the occurrence
of an Event of Default under Section 6.01(a) of the 1996B and
1996C Brazos Bond Indenture, all bonds of the Ninetieth Series,
then Outstanding, shall be redeemed by the Company, on the date
such Series 1996B Brazos Revenue Bonds shall have become
immediately due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Ninetieth Series is required pursuant to the first
paragraph of this subsection (II) unless and until it shall have
received a written notice from the trustee under the 1996B and
1996C Brazos Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that Series 1996B Brazos Revenue Bonds have become
immediately due and payable pursuant to Section 6.02 of the 1996B
and 1996C Brazos Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1996B and 1996C Brazos
Bond Indenture and specifying the principal amount thereof. Said
notice shall also contain a waiver of notice of such redemption
by the trustee under the 1996B and 1996C Brazos Bond Indenture,
as the holder of all bonds of the Ninetieth Series then
Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
1 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Ninetieth Series, upon surrender thereof for cancellation at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, shall be exchangeable for a like
aggregate principal amount of bonds of the same series of other
authorized denominations.
Bonds of the Ninetieth Series shall not be transferrable
except to any successor trustee under the 1996B and 1996C Brazos
Bond Indenture, any such transfer to be made at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Ninetieth Series.
ARTICLE II
NINETY-FIRST SERIES OF BONDS
SECTION 2. There shall be a series of bonds designated
"Pollution Control Series AD" (herein sometimes referred to as
the "Ninety-first Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established by Resolution of the Board of
Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified.
Bonds of the Ninety-first Series shall mature on June 1, 2030,
shall not bear interest and shall be issued as fully registered
bonds in denominations of Five Hundred Dollars and, at the option
of the Company, in any multiple or multiples thereof (the
exercise of such option to be evidenced by the execution and
delivery thereof); the principal of each said bond to be payable
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, or at the office or
agency of the Company in the City of Dallas, Texas, as the holder
of any said bond may elect, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Ninety-first
Series shall be dated as in Section 2.03 of the Original
Indenture provided.
(I) The bonds of the Ninety-first Series shall be
initially issued in the aggregate principal amount of $57,500,000
to, and registered in the name of, the trustee under the 1996B
and 1996C Brazos Bond Indenture, under which the Brazos
Authority s Collateralized Pollution Control Revenue Refunding
Bonds (Texas Utilities Electric Company Project) Series 1996C
(hereinafter sometimes called the "Series 1996C Brazos Revenue
Bonds") are to be issued, in order to provide the benefit of a
lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Installment Sale and Bond
Amortization Agreement, dated as of September 1, 1996
(hereinafter sometimes called the "1996C Brazos Agreement"),
between the Brazos Authority and the Company.
The Company shall receive a credit against its obligation
to make any payment of the principal of the bonds of the Ninety-
first Series, whether at maturity, upon redemption or otherwise,
in an amount equal to 115% of the sum of (a) the amount, if any,
on deposit in the Debt Service Fund maintained under the 1996B
and 1996C Brazos Bond Indenture which reduces the corresponding
Installment Payment and (b) the amount, if any, paid by the
Company pursuant to Section 5.04 of the 1996C Brazos Agreement in
respect of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Ninety-first
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1996B and
1996C Brazos Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that the corresponding Installment Payment or Purchase
Price payment has become due and payable and has not been fully
paid and specifying the amount of funds required to make such
payment.
(II) In the event that any Series 1996C Brazos Revenue
Bonds outstanding under the 1996B and 1996C Brazos Bond Indenture
shall become immediately due and payable pursuant to Section 6.02
of the 1996B and 1996C Brazos Bond Indenture, upon the occurrence
of an Event of Default under Section 6.01(a) of the 1996B and
1996C Brazos Bond Indenture, all bonds of the Ninety-first
Series, then Outstanding, shall be redeemed by the Company, on
the date such Series 1996C Brazos Revenue Bonds shall have become
immediately due and payable, at the principal amount thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Ninety-first Series is required pursuant to the
first paragraph of this subsection (II) unless and until it shall
have received a written notice from the trustee under the 1996B
and 1996C Brazos Bond Indenture, signed by its President, a Vice
President, an Assistant Vice President or a Trust Officer,
stating that Series 1996C Brazos Revenue Bonds have become
immediately due and payable pursuant to Section 6.02 of the 1996B
and 1996C Brazos Bond Indenture, upon the occurrence of an Event
of Default under Section 6.01(a) of the 1996B and 1996C Brazos
Bond Indenture and specifying the principal amount thereof. Said
notice shall also contain a waiver of notice of such redemption
by the trustee under the 1996B and 1996C Brazos Bond Indenture,
as the holder of all bonds of the Ninety-first Series then
Outstanding.
(III) The Company hereby waives its right to have any
notice of redemption pursuant to subsection (II) of this Section
2 state that such notice is subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption. Notwithstanding the provisions of Section 12.02 of
the Mortgage, any such notice under such subsection shall not be
conditional.
(IV) At the option of the registered owner, any bonds of
the Ninety-first Series, upon surrender thereof for cancellation
at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, shall be exchangeable
for a like aggregate principal amount of bonds of the same series
of other authorized denominations.
Bonds of the Ninety-first Series shall not be transferrable
except to any successor trustee under the 1996B and 1996C Brazos
Bond Indenture, any such transfer to be made at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for
any exchange or transfer of bonds of the Ninety-first Series.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3. Subject to the amendments provided for in this
Fifty-sixth Supplemental Indenture, the terms defined in the
Original Indenture, as heretofore supplemented, shall for all
purposes of this Fifty-sixth Supplemental Indenture have the
meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 4. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Fifty-sixth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article XIX of the Original Indenture
shall apply to and form part of this Fifty-sixth Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and
insertions, if any, as may be appropriate to make the same
conform to the provisions of this Fifty-sixth Supplemental
Indenture.
SECTION 5. Whenever in this Fifty-sixth Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVIII and XIX
of the Original Indenture, be deemed to include the successors
and assigns of such party, and all the covenants and agreements
in this Fifty-sixth Supplemental Indenture contained, by or on
behalf of the Company, or by or on behalf of the Trustee, shall,
subject as aforesaid, bind and inure to the respective benefits
of the respective successors and assigns of such parties, whether
so expressed or not.
SECTION 6. Nothing in this Fifty-sixth Supplemental
Indenture expressed or implied, is intended, or shall be
construed to confer upon, or to give to, any person, firm or
corporation, other than the parties hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Fifty-sixth
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifty-sixth
Supplemental Indenture contained, by or on behalf of the Company,
shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the bonds and coupons Outstanding
under the Mortgage.
SECTION 7. This Fifty-sixth Supplemental Indenture shall
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, TEXAS UTILITIES ELECTRIC COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board
and Chief Executive, President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and THE BANK OF NEW
YORK has caused its corporate name to be hereunto affixed, and
this instrument to be signed and sealed by one of its Vice
Presidents or Assistant Vice Presidents and its corporate seal to
be attested by one of its Assistant Vice Presidents, Assistant
Secretaries or Assistant Treasurers, all as of the day and year
first above written.
TEXAS UTILITIES ELECTRIC COMPANY
By /s/ Ron Seidel
-----------------------------
RON SEIDEL
Vice President
Attest:
/s/ Glen H. Hibbs
---------------------
GLEN H. HIBBS
Assistant Secretary
Executed, sealed and delivered by
TEXAS UTILITIES ELECTRIC COMPANY
in the presence of:
/s/ W.E. Patterson
--------------------------
/s/ Justus B. Rhodes
--------------------------
<PAGE>
THE BANK OF NEW YORK,
Trustee
By /s/ W.N. Gitlin
-------------------------
W.N. GITLIN
Vice President
Attest:
/s/ Stephen J. Giurlando
--------------------------
STEPHEN J. GIURLANDO
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ Illegible
--------------------------
/s/ Michele Russo
--------------------------
<PAGE>
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS )
Before me, a Notary Public in and for said State, on this
day personally appeared RON SEIDEL, known to me to be the person
whose name is subscribed to the foregoing instrument and known
to me to be a Vice President of TEXAS UTILITIES ELECTRIC COMPANY,
a Texas corporation, and acknowledged to me that said person
executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this 18th day of
September, 1996.
/s/ Lenae B. Davis
---------------------------------
LENAE B. DAVIS
Notary Public, State of Texas
My Commission Expires June 23, 2000
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this
day personally appeared W.N. GITLIN, known to me to be the person
whose name is subscribed to the foregoing instrument and known to
me to be a Vice President of THE BANK OF NEW YORK, a New York
corporation, and acknowledged to me that said person executed
said instrument for the purposes and consideration therein
expressed, and as the act of said corporation.
Given under my hand and seal of office this 16th day of
September, 1996.
/s/ William J. Cassels
----------------------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 1998
<PAGE>
SUMMARY OF RECORDING DATA
Fifty-sixth Supplemental Indenture
Filed September 26, 1996
Office of the Secretary of the State of Texas,
Utility Security Instrument File No. 83-281286
[CONFORMED COPY]
=================================================================
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK,
(formerly Irving Trust Company)
Trustee under the Texas Utilities
Electric Company Mortgage and
Deed of Trust, dated as of
December 1, 1983
---------------
FIFTY-SEVENTH SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES AE
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES AF
AND
FIRST MORTGAGE BONDS,
POLLUTION CONTROL SERIES AG
-------------
DATED AS OF FEBRUARY 1, 1997
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
<PAGE>
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
FIFTY-SEVENTH SUPPLEMENTAL INDENTURE
-------------------------
INDENTURE, dated as of February 1, 1997, between TEXAS
UTILITIES ELECTRIC COMPANY, a corporation of the State of Texas,
whose address is Energy Plaza, 1601 Bryan Street, Dallas, Texas
75201 (hereinafter sometimes called the Company), and THE BANK OF
NEW YORK (formerly Irving Trust Company), a corporation of the
State of New York, whose address is 101 Barclay Street, New York,
New York 10286 (hereinafter sometimes called the Trustee),
Trustee under the Mortgage and Deed of Trust, dated as of
December 1, 1983 (hereinafter called the Original Indenture, the
Original Indenture and any and all indentures and instruments
supplemental thereto being hereinafter sometimes collectively
called the Mortgage), which Original Indenture was executed and
delivered by the Company to secure the payment of bonds issued or
to be issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is made, this Indenture
(hereinafter called the Fifty-seventh Supplemental Indenture)
being supplemental thereto;
WHEREAS, said Original Indenture was recorded or filed as
required in the State of Texas; and
WHEREAS, the Company executed and delivered to the Trustee
the following supplemental indentures:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture ............. April 1, 1984
Second Supplemental Indenture ............ September 1, 1984
Third Supplemental Indenture ............. April 1, 1985
Fourth Supplemental Indenture ............ August 1, 1985
Fifth Supplemental Indenture ............. September 1, 1985
Sixth Supplemental Indenture ............. December 1, 1985
Seventh Supplemental Indenture ........... March 1, 1986
Eighth Supplemental Indenture ............ May 1, 1986
Ninth Supplemental Indenture ............. October 1, 1986
Tenth Supplemental Indenture ............. December 1, 1986
Eleventh Supplemental Indenture .......... December 1, 1986
Twelfth Supplemental Indenture ........... February 1, 1987
Thirteenth Supplemental Indenture ........ March 1, 1987
Fourteenth Supplemental Indenture ........ April 1, 1987
Fifteenth Supplemental Indenture ......... July 1, 1987
Sixteenth Supplemental Indenture ......... September 1, 1987
Seventeenth Supplemental Indenture ....... October 1, 1987
Eighteenth Supplemental Indenture ........ March 1, 1988
Nineteenth Supplemental Indenture ........ May 1, 1988
DESIGNATION DATED AS OF
----------- -----------
Twentieth Supplemental Indenture ......... September 1, 1988
Twenty-first Supplemental Indenture ...... November 1, 1988
Twenty-second Supplemental Indenture ..... January 1, 1989
Twenty-third Supplemental Indenture ...... August 1, 1989
Twenty-fourth Supplemental Indenture ..... November 1, 1989
Twenty-fifth Supplemental Indenture ...... December 1, 1989
Twenty-sixth Supplemental Indenture ...... February 1, 1990
Twenty-seventh Supplemental Indenture .... September 1, 1990
Twenty-eighth Supplemental Indenture ..... October 1, 1990
Twenty-ninth Supplemental Indenture ...... October 1, 1990
Thirtieth Supplemental Indenture ......... March 1, 1991
Thirty-first Supplemental Indenture ...... May 1, 1991
Thirty-second Supplemental Indenture ..... July 1, 1991
Thirty-third Supplemental Indenture ...... February 1, 1992
Thirty-fourth Supplemental Indenture ..... April 1, 1992
Thirty-fifth Supplemental Indenture ...... April 1, 1992
Thirty-sixth Supplemental Indenture ...... June 1, 1992
Thirty-seventh Supplemental Indenture .... June 1, 1992
Thirty-eighth Supplemental Indenture ..... August 1, 1992
Thirty-ninth Supplemental Indenture ...... October 1, 1992
Fortieth Supplemental Indenture .......... November 1, 1992
Forty-first Supplemental Indenture ....... December 1, 1992
Forty-second Supplemental Indenture ...... March 1, 1993
Forty-third Supplemental Indenture ....... April 1, 1993
Forty-fourth Supplemental Indenture ...... April 1, 1993
Forty-fifth Supplemental Indenture ....... May 1, 1993
Forty-sixth Supplemental Indenture ....... July 1, 1993
Forty-seventh Supplemental Indenture ..... October 1, 1993
Forty-eighth Supplemental Indenture ...... November 1, 1993
Forty-ninth Supplemental Indenture ....... May 1, 1994
Fiftieth Supplemental Indenture .......... May 1, 1994
Fifty-first Supplemental Indenture ....... August 1, 1994
Fifty-second Supplemental Indenture ...... April 1, 1995
Fifty-third Supplemental Indenture ....... June 1, 1995
Fifty-fourth Supplemental Indenture ...... October 1, 1995
Fifty-fifth Supplemental Indenture ....... March 1, 1996
Fifty-sixth Supplemental Indenture ....... September 1, 1996
which supplemental indentures were or are to be recorded or filed
as required in the State of Texas; and
WHEREAS, by the Original Indenture, the Company covenanted
that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts
as may be necessary or proper to carry out more effectually the
purposes of the Mortgage and to make subject to the Lien of the
Mortgage any property thereafter acquired and intended to be
subject to the Lien thereof; and
WHEREAS, in addition to the property described in the
Original Indenture, the Company has acquired certain other
property, rights and interests in property; and
WHEREAS, the Company has heretofore issued as of January 31,
1997, in accordance with the provisions of the Original
Indenture, as heretofore supplemented, the following series of
First Mortgage and Collateral Trust Bonds and First Mortgage
Bonds:
Principal Principal
Amount Amount
Series Issued Outstanding
------ --------- -----------
12% Series due March 1, 1985 $ 1,000,000 $ None
13 5/8% Series due April 1, 2014 100,000,000 None
13 1/2% Series due September 1, 2014 150,000,000 None
12 7/8% Series due April 1, 2015 150,000,000 None
12% Series due August 1, 2015 100,000,000 None
12% Series due September 1, 2015 75,000,000 None
11 1/8% Series due December 1, 2015 150,000,000 None
9 3/8% Series due March 1, 2016 200,000,000 None
9 3/4% Series due May 1, 2016 200,000,000 None
7 3/4% Pollution Control Series C 70,000,000 None
8 1/4% Pollution Control Series D 200,000,000 None
9 1/2% Series due December 1, 2016 300,000,000 None
9 1/4% Series due February 1, 2017 250,000,000 None
7 7/8% Pollution Control Series E 100,000,000 81,305,000
10 1/2% Series due April 1, 2017 250,000,000 None
9 1/2% Series due July 1, 1997 150,000,000 None
10 1/2% Series due July 1, 2017 150,000,000 None
9% Pollution Control Series F 55,000,000 51,525,000
9% Pollution Control Series G 12,000,000 12,000,000
9 7/8% Pollution Control Series H 112,000,000 28,765,000
9 1/4% Pollution Control Series I 100,000,000 54,005,000
10 3/8% Series due May 1, 1998 150,000,000 None
11 3/8% Series due May 1, 2018 150,000,000 None
Secured Medium-Term Notes, Series A 300,000,000 30,000,000
10.44% Series due November 1, 2008 150,000,000 3,000,000
8 1/4% Pollution Control Series J 100,000,000 100,000,000
9 1/2% Series due August 1, 1999 200,000,000 200,000,000
10% Series due August 1, 2019 100,000,000 None
9 7/8% Series due November 1, 2019 150,000,000 None
Secured Medium-Term Notes, Series B 150,000,000 125,000,000
8 1/8% Pollution Control Series K 50,000,000 50,000,000
8 1/8% Pollution Control Series L 40,000,000 40,000,000
10 5/8% Series due September 1, 2020 250,000,000 None
Secured Medium-Term Notes, Series C 150,000,000 None
8 1/4% Pollution Control Series
due October 1, 2020 11,000,000 11,000,000
7 7/8% Pollution Control Series
due March 1, 2021 100,000,000 100,000,000
9 3/4% Series due May 1, 2021 300,000,000 280,855,000
0% Pollution Control Series M
due June 1, 2021 86,250,000 None
0% Pollution Control Series N
due June 1, 2021 57,500,000 None
0% Pollution Control Series O
due June 1, 2021 57,500,000 None
0% Pollution Control Series P
due June 1, 2021 115,000,000 75,831,000
8 1/8% Series due February 1, 2002 150,000,000 150,000,000
8 7/8% Series due February 1, 2022 175,000,000 175,000,000
8 1/4% Series due April 1, 2004 100,000,000 100,000,000
9% Series due April 1, 2022 100,000,000 100,000,000
6 3/4% Pollution Control Series
due April 1, 2022 50,000,000 50,000,000
7 1/8% Series due June 1, 1997 150,000,000 150,000,000
8% Series due June 1, 2002 147,000,000 147,000,000
6 5/8% Pollution Control Series
due June 1, 2022 33,000,000 33,000,000
6 3/8% Series due August 1, 1997 175,000,000 175,000,000
7 3/8% Series due August 1, 2001 150,000,000 150,000,000
8 1/2% Series due August 1, 2024 175,000,000 163,000,000
6.70% Pollution Control Series
due October 1, 2022 16,935,000 16,935,000
6.55% Pollution Control Series
due October 1, 2022 40,000,000 40,000,000
7 3/8% Series due November 1, 1999 100,000,000 100,000,000
8 3/4% Series due November 1, 2023 200,000,000 195,550,000
6 1/2% Pollution Control Series
due December 1, 2027 46,660,000 46,660,000
6 3/4% Series due March 1, 2003 200,000,000 200,000,000
7 7/8% Series due March 1, 2023 300,000,000 300,000,000
6.05% Pollution Control Series
due April 1, 2025 90,000,000 90,000,000
6.10% Pollution Control Series
due April 1, 2028 50,000,000 50,000,000
5 7/8% Series due April 1, 1998 175,000,000 175,000,000
6 3/4% Series due April 1, 2003 100,000,000 100,000,000
7 7/8% Series due April 1, 2024 225,000,000 225,000,000
0% Pollution Control Series
due June 1, 2023 115,000,000 115,000,000
5 3/4% Series due July 1, 1998 150,000,000 150,000,000
6 3/4% Series due July 1, 2005 100,000,000 100,000,000
7 5/8% Series due July 1, 2025 250,000,000 250,000,000
5 1/2% Series due October 1, 1998 125,000,000 125,000,000
6 1/4% Series due October 1, 2004 125,000,000 125,000,000
7 3/8% Series due October 1, 2025 300,000,000 208,000,000
5 1/2% Pollution Control Series
due May 1, 2022 50,000,000 50,000,000
5.55% Pollution Control Series
due May 1, 2022 75,000,000 75,000,000
5.85% Pollution Control Series
due May 1, 2022 33,465,000 33,465,000
Floating Rate Series due May 1, 1999 300,000,000 300,000,000
Pollution Control Series Q
due May 1, 2029 45,045,500 45,045,500
Pollution Control Series R
due May 1, 2029 45,045,500 45,045,500
0% Series due 1994 1,013,831,000 None
Pollution Control Series S
due April 1, 2030 58,270,500 58,270,500
Pollution Control Series T
due April 1, 2030 18,400,000 18,400,000
Pollution Control Series U 136,108,250 136,108,250
Pollution Control Series V 136,108,250 136,108,250
Pollution Control Series W 13,857,500 13,857,500
Pollution Control Series X 21,246,250 21,246,250
Secured Medium-Term Notes, Series D 201,150,000 201,150,000
Pollution Control Series Y 28,819,000 28,819,000
Pollution Control Series Z 66,642,500 66,642,500
Pollution Control Series AA 28,750,000 28,750,000
Pollution Control Series AB 28,750,000 28,750,000
Pollution Control Series AC 70,397,250 70,397,250
Pollution Control Series AD 57,500,000 57,500,000
which bonds are also hereinafter sometimes called bonds of the
First through Ninety-first Series, respectively; and
WHEREAS, Section 2.01 of the Original Indenture provides that
the form of each series of bonds (other than the First Series)
issued thereunder and of the coupons to be attached to coupon bonds
of such series shall be established by Resolution of the Board of
Directors of the Company, and that the form of such series, as
established by said Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof, and
may also have such omissions or modifications or contain such
provisions not prohibited by the provisions of the Mortgage as the
Board of Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and conditions upon
which such bonds are to be issued and/or secured under the
Mortgage; and
WHEREAS, Section 22.04 of the Original Indenture provides,
among other things, that any power, privilege or right expressly or
impliedly reserved to or in any way conferred upon the Company by
any provision of the Mortgage, whether such power, privilege or
right is in any way restricted or is unrestricted, may be in whole
or in part waived or surrendered or subjected to any restriction if
at the time unrestricted, or to additional restriction if already
restricted, and the Company may enter into any further covenants,
limitations, restrictions or provisions for the benefit of any one
or more series of bonds issued thereunder, or the Company may cure
any ambiguity contained therein, or in any supplemental indenture,
or may establish the terms and provisions of any series of bonds
other than the First Series, by an instrument in writing executed
and acknowledged by the Company in such manner as would be
necessary to entitle a conveyance of real estate to be recorded in
all of the states in which any property at the time subject to the
Lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to create three new series of
bonds and to add to its covenants and agreements contained in the
Mortgage certain other covenants and agreements to be observed by
it and to alter and amend in certain respects the covenants and
provisions contained in the Mortgage; and
WHEREAS, the execution and delivery by the Company of this
Fifty-seventh Supplemental Indenture, and the terms of the bonds of
the Ninety-second, Ninety-third and Ninety-fourth Series,
hereinafter referred to, have been duly authorized by the Board of
Directors of the Company by appropriate resolutions of said Board
of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company,
in consideration of the premises and of Ten Dollars to it duly paid
by the Trustee at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in order
to secure the payment of both the principal of and interest and
premium, if any, on the bonds from time to time issued under the
Mortgage, according to their tenor and effect and the performance
of all the provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the Mortgage
provided) and of said bonds, hath granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged, hypothecated,
affected, pledged, set over and confirmed and granted a security
interest in and by these presents doth grant, bargain, sell,
release, convey, assign, transfer, mortgage, hypothecate, affect,
pledge, set over and confirm and grant a security interest in
(subject, however, to Excepted Encumbrances as defined in Section
1.06 of the Original Indenture) unto The Bank of New York, Trustee
under the Mortgage, and to its successor or successors in said
trust, and to said Trustee and its successors and assigns forever,
all properties of the Company, real, personal and mixed, of the
kind or nature specifically mentioned in the Original Indenture, as
heretofore supplemented, or of any other kind or nature acquired by
the Company on or after the date of the execution and delivery of
the Original Indenture (except any herein or in the Original
Indenture expressly excepted), now owned or, subject to the
provisions of Section 18.03 of the Original Indenture, hereafter
acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same, the scope and intent of
the foregoing or of any general description contained in this
Fifty-seventh Supplemental Indenture) all real estate, lands,
easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or the
occupancy of the same; all power sites, flowage rights, water
rights, water locations, water appropriations, ditches, flumes,
reservoirs, reservoir sites, canals, raceways, waterways, dams, dam
sites, aqueducts, and all other rights or means for appropriating,
conveying, storing and supplying water; all rights of way and
roads; all plants for the generation of electricity by steam, water
and/or other power; all power houses, gas plants, street lighting
systems, standards and other equipment incidental thereto; all
telephone, radio and television systems, air-conditioning systems
and equipment incidental thereto, water wheels, water works, water
systems, steam heat and hot water plants, substations, lines,
service and supply systems, bridges, culverts, tracks, ice or
refrigeration plants and equipment, offices, buildings and other
structures and the equipment thereof; all machinery, engines,
boilers, dynamos, turbines, electric, gas and other machines, prime
movers, regulators, meters, transformers, generators (including,
but not limited to, engine driven generators and turbo-generator
units), motors, electrical, gas and mechanical appliances,
conduits, cables, water, steam heat, gas or other pipes, gas mains
and pipes, service pipes, fittings, valves and connections, pole
and transmission lines, towers, overhead conductors and devices,
underground conduits, underground conductors and devices, wires,
cables, tools, implements, apparatus, storage battery equipment,
and all other fixtures and personalty; all municipal and other
franchises, consents or permits; all lines for the transmission and
distribution of electric current, gas, steam heat or water for any
purpose including towers, poles, wires, cables, pipes, conduits,
ducts and all apparatus for use in connection therewith and (except
as herein or in the Original Indenture expressly excepted) all the
right, title and interest of the Company in and to all other
property of any kind or nature appertaining to and/or used and/or
occupied and/or enjoyed in connection with any property
hereinbefore or in the Original Indenture described.
TOGETHER WITH all and singular the tenements, hereditaments,
prescriptions, servitudes and appurtenances belonging or in anywise
appertaining to the aforesaid property or any part thereof, with
the reversion and reversions, remainder and remainders and (subject
to the provisions of Section 13.01 of the Original Indenture) the
tolls, rents, revenues, issues, earnings, income, product and
profits thereof, and all the estate, right, title and interest and
claim whatsoever, at law as well as in equity, which the Company
now has or may hereafter acquire in and to the aforesaid property
and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the
provisions of Section 18.03 of the Original Indenture, all the
property, rights and franchises acquired by the Company (by
purchase, consolidation, merger, donation, construction, erection
or in any other way) after the date hereof, except any herein or in
the Original Indenture expressly excepted, shall be and are as
fully granted and conveyed hereby and as fully embraced within the
Lien of the Original Indenture and the Lien hereof as if such
property, rights and franchises were now owned by the Company and
were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to be
now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected, pledged,
set over or confirmed hereunder, nor is a security interest therein
hereby or by the Original Indenture, as heretofore supplemented,
granted or intended to be granted, and the same are hereby
expressly excepted from the Lien and operation of the Original
Indenture, as heretofore supplemented, and from the Lien and
operation of this Fifty-seventh Supplemental Indenture, viz.: (1)
cash, shares of stock, bonds, notes and other obligations and other
securities not hereinbefore or hereafter specifically pledged,
paid, deposited, delivered or held under the Mortgage or covenanted
so to be; (2) merchandise, equipment, apparatus, materials or
supplies held for the purpose of sale or other disposition in the
usual course of business or for the purpose of repairing or
replacing (in whole or in part) any rolling stock, buses, motor
coaches, automobiles or other vehicles or aircraft or boats, ships,
or other vessels and any fuel, oil and similar materials and
supplies consumable in the operation of any of the properties of
the Company; rolling stock, buses, motor coaches, automobiles and
other vehicles and all aircraft; boats, ships and other vessels;
all timber, minerals, mineral rights and royalties; (3) bills,
notes and other instruments and accounts receivable, judgments,
demands, general intangibles and choses in action, and all
contracts, leases and operating agreements not specifically pledged
hereunder or under the Mortgage or covenanted so to be; (4) the
last day of the term of any lease or leasehold which may hereafter
become subject to the Lien of the Mortgage; (5) electric energy,
gas, water, steam, ice, and other materials or products generated,
manufactured, produced, or purchased by the Company for sale,
distribution or use in the ordinary course of its business; (6) any
natural gas wells or natural gas leases or natural gas
transportation lines or other works or property used primarily and
principally in the production of natural gas or its transportation,
primarily for the purpose of sale to natural gas customers or to a
natural gas distribution or pipeline company, up to the point of
connection with any distribution system; and (7) the Company's
franchise to be a corporation; provided, however, that the property
and rights expressly excepted from the Lien and operation of the
Original Indenture and this Fifty-seventh Supplemental Indenture in
the above subdivisions (2) and (3) shall (to the extent permitted
by law) cease to be so excepted in the event and as of the date
that the Trustee or a receiver or trustee shall enter upon and take
possession of the Mortgaged and Pledged Property in the manner
provided in Article XV of the Original Indenture by reason of the
occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over
or confirmed or in which a security interest has been granted by
the Company as aforesaid, or intended so to be (subject, however,
to Excepted Encumbrances as defined in Section 1.06 of the Original
Indenture), unto The Bank of New York, Trustee, and its successors
and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same
provisos and covenants as are set forth in the Original Indenture,
as heretofore supplemented, this Fifty-seventh Supplemental
Indenture being supplemental to the Original Indenture.
AND IT IS HEREBY COVENANTED by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the
Original Indenture, as heretofore supplemented, shall affect and
apply to the property hereinbefore described and conveyed and to
the estate, rights, obligations and duties of the Company and the
Trustee and the beneficiaries of the trust with respect to said
property, and to the Trustee and its successors as Trustee of said
property, in the same manner and with the same effect as if said
property had been owned by the Company at the time of the execution
of the Original Indenture, and had been specifically and at length
described in and conveyed to said Trustee by the Original Indenture
as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustee and its successors in said trust under the Mortgage, as
follows:
ARTICLE I
NINETY-SECOND SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated
"Pollution Control Series AE" (herein sometimes referred to as the
"Ninety-second Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established in accordance with a Resolution of the
Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section
specified. Bonds of the Ninety-second Series shall mature on
February 1, 2032, shall not bear interest and shall be issued as
fully registered bonds in denominations of Two Hundred Fifty
Dollars and, at the option of the Company, in any multiple or
multiples thereof (the exercise of such option to be evidenced by
the execution and delivery thereof); the principal of each said
bond to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, or at the
office or agency of the Company in the City of Dallas, Texas, as
the holder of any said bond may elect, in such coin or currency of
the United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Ninety-second
Series shall be dated as in Section 2.03 of the Original Indenture
provided.
(I) The bonds of the Ninety-second Series shall be initially
issued in the aggregate principal amount of $57,500,000 to, and
registered in the name of, the trustee under the Trust Indenture,
dated as of February 1, 1997 (hereinafter sometimes called the
"1997A, 1997B and 1997C Brazos Bond Indenture"), of the Brazos
River Authority (hereinafter sometimes called the "Brazos
Authority"), under which its Collateralized Pollution Control
Revenue Refunding Bonds (Texas Utilities Electric Company Project)
Series 1997A (hereinafter sometimes called the "Series 1997A Brazos
Revenue Bonds") are to be issued, in order to provide the benefit
of a lien to secure the obligation of the Company to make the
Installment Payments and Purchase Price payments pursuant to, and
as such terms are defined in, the Series 1997A Installment Sale and
Bond Amortization Agreement, dated as of February 1, 1997
(hereinafter sometimes called the "1997A Brazos Agreement"),
between the Brazos Authority and the Company.
The Company shall receive a credit against its obligation to
make any payment of the principal of the bonds of the Ninety-second
Series, whether at maturity, upon redemption or otherwise, in an
amount equal to 115% of the sum of (a) the amount, if any, on
deposit in the Debt Service Fund maintained under the 1997A, 1997B
and 1997C Brazos Bond Indenture which reduces the corresponding
Installment Payment and (b) the amount, if any, paid by the Company
pursuant to Section 5.04 of the 1997A Brazos Agreement in respect
of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Ninety-second
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1997A, 1997B
and 1997C Brazos Bond Indenture, signed by the President, a Vice
President or a Trust Officer of such trustee, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1997A Brazos Revenue Bonds
outstanding under the 1997A, 1997B and 1997C Brazos Bond Indenture
shall become immediately due and payable pursuant to Section 6.02
of the 1997A, 1997B and 1997C Brazos Bond Indenture, upon the
occurrence of an Event of Default under Section 6.01(a) of the
1997A, 1997B and 1997C Brazos Bond Indenture, all bonds of the
Ninety-second Series, then Outstanding, shall be redeemed by the
Company, on the date such Series 1997A Brazos Revenue Bonds shall
have become immediately due and payable, at the principal amount
thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Ninety-second Series is required pursuant to the first
paragraph of this subsection (II) unless and until it shall have
received a written notice from the trustee under the 1997A, 1997B
and 1997C Brazos Bond Indenture, signed by the President, a Vice
President or a Trust Officer of such trustee, stating that Series
1997A Brazos Revenue Bonds have become immediately due and payable
pursuant to Section 6.02 of the 1997A, 1997B and 1997C Brazos Bond
Indenture, upon the occurrence of an Event of Default under Section
6.01(a) of the 1997A, 1997B and 1997C Brazos Bond Indenture and
specifying the principal amount thereof. Said notice shall also
contain a waiver of notice of such redemption by the trustee under
the 1997A, 1997B and 1997C Brazos Bond Indenture, as the holder of
all bonds of the Ninety-second Series then Outstanding.
(III) The Company hereby waives its right to have any notice
of redemption pursuant to subsection (II) of this Section 1 state
that such notice is subject to the receipt of the redemption moneys
by the Trustee on or before the date fixed for redemption.
Notwithstanding the provisions of Section 12.02 of the Mortgage,
any such notice under such subsection shall not be conditional.
(IV) At the option of the registered owner, any bonds of the
Ninety-second Series, upon surrender thereof for cancellation at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, shall be exchangeable for a like
aggregate principal amount of bonds of the same series of other
authorized denominations.
Bonds of the Ninety-second Series shall not be transferrable
except to any successor trustee under the 1997A, 1997B and 1997C
Brazos Bond Indenture, any such transfer to be made at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for any
exchange or transfer of bonds of the Ninety-second Series.
ARTICLE II
NINETY-THIRD SERIES OF BONDS
SECTION 2. There shall be a series of bonds designated
"Pollution Control Series AF" (herein sometimes referred to as the
"Ninety-third Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established in accordance with a Resolution of the
Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section
specified. Bonds of the Ninety-third Series shall mature on
February 1, 2032, shall not bear interest and shall be issued as
fully registered bonds in denominations of Two Hundred Fifty
Dollars and, at the option of the Company, in any multiple or
multiples thereof (the exercise of such option to be evidenced by
the execution and delivery thereof); the principal of each said
bond to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, or at the
office or agency of the Company in the City of Dallas, Texas, as
the holder of any said bond may elect, in such coin or currency of
the United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Ninety-third
Series shall be dated as in Section 2.03 of the Original Indenture
provided.
(I) The bonds of the Ninety-third Series shall be initially
issued in the aggregate principal amount of $36,000,750 to, and
registered in the name of, the trustee under the 1997A, 1997B and
1997C Brazos Bond Indenture, under which the Brazos Authority s
Collateralized Pollution Control Revenue Refunding Bonds (Texas
Utilities Electric Company Project) Series 1997B (hereinafter
sometimes called the "Series 1997B Brazos Revenue Bonds") are to be
issued, in order to provide the benefit of a lien to secure the
obligation of the Company to make the Installment Payments and
Purchase Price payments pursuant to, and as such terms are defined
in, the Series 1997B Installment Sale and Bond Amortization
Agreement, dated as of February 1, 1997 (hereinafter sometimes
called the "1997B Brazos Agreement"), between the Brazos Authority
and the Company.
The Company shall receive a credit against its obligation to
make any payment of the principal of the bonds of the Ninety-third
Series, whether at maturity, upon redemption or otherwise, in an
amount equal to 115% of the sum of (a) the amount, if any, on
deposit in the Debt Service Fund maintained under the 1997A, 1997B
and 1997C Brazos Bond Indenture which reduces the corresponding
Installment Payment and (b) the amount, if any, paid by the Company
pursuant to Section 5.04 of the 1997B Brazos Agreement in respect
of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Ninety-third
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1997A, 1997B
and 1997C Brazos Bond Indenture, signed by the President, a Vice
President or a Trust Officer of such trustee, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1997B Brazos Revenue Bonds
outstanding under the 1997A, 1997B and 1997C Brazos Bond Indenture
shall become immediately due and payable pursuant to Section 6.02
of the 1997A, 1997B and 1997C Brazos Bond Indenture, upon the
occurrence of an Event of Default under Section 6.01(a) of the
1997A, 1997B and 1997C Brazos Bond Indenture, all bonds of the
Ninety-third Series, then Outstanding, shall be redeemed by the
Company, on the date such Series 1997B Brazos Revenue Bonds shall
have become immediately due and payable, at the principal amount
thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Ninety-third Series is required pursuant to the first
paragraph of this subsection (II) unless and until it shall have
received a written notice from the trustee under the 1997A, 1997B
and 1997C Brazos Bond Indenture, signed by the President, a Vice
President or a Trust Officer of such trustee, stating that Series
1997B Brazos Revenue Bonds have become immediately due and payable
pursuant to Section 6.02 of the 1997A, 1997B and 1997C Brazos Bond
Indenture, upon the occurrence of an Event of Default under Section
6.01(a) of the 1997A, 1997B and 1997C Brazos Bond Indenture and
specifying the principal amount thereof. Said notice shall also
contain a waiver of notice of such redemption by the trustee under
the 1997A, 1997B and 1997C Brazos Bond Indenture, as the holder of
all bonds of the Ninety-third Series then Outstanding.
(III) The Company hereby waives its right to have any notice
of redemption pursuant to subsection (II) of this Section 2 state
that such notice is subject to the receipt of the redemption moneys
by the Trustee on or before the date fixed for redemption.
Notwithstanding the provisions of Section 12.02 of the Mortgage,
any such notice under such subsection shall not be conditional.
(IV) At the option of the registered owner, any bonds of the
Ninety-third Series, upon surrender thereof for cancellation at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, New York, shall be exchangeable for a like
aggregate principal amount of bonds of the same series of other
authorized denominations.
Bonds of the Ninety-third Series shall not be transferrable
except to any successor trustee under the 1997A, 1997B and 1997C
Brazos Bond Indenture, any such transfer to be made at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for any
exchange or transfer of bonds of the Ninety-third Series.
ARTICLE III
NINETY-FOURTH SERIES OF BONDS
SECTION 3. There shall be a series of bonds designated
"Pollution Control Series AG" (herein sometimes referred to as the
"Ninety-fourth Series"), each of which shall also bear the
descriptive title "First Mortgage Bond", and the form thereof,
which shall be established in accordance with a Resolution of the
Board of Directors of the Company, shall contain suitable
provisions with respect to the matters hereinafter in this Section
specified. Bonds of the Ninety-fourth Series shall mature on
February 1, 2032, shall not bear interest and shall be issued as
fully registered bonds in denominations of Two Hundred Fifty
Dollars and, at the option of the Company, in any multiple or
multiples thereof (the exercise of such option to be evidenced by
the execution and delivery thereof); the principal of each said
bond to be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, or at the
office or agency of the Company in the City of Dallas, Texas, as
the holder of any said bond may elect, in such coin or currency of
the United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the Ninety-fourth
Series shall be dated as in Section 2.03 of the Original Indenture
provided.
(I) The bonds of the Ninety-fourth Series shall be initially
issued in the aggregate principal amount of $28,801,750 to, and
registered in the name of, the trustee under the 1997A, 1997B and
1997C Brazos Bond Indenture, under which the Brazos Authority s
Collateralized Pollution Control Revenue Refunding Bonds (Texas
Utilities Electric Company Project) Series 1997C (hereinafter
sometimes called the "Series 1997C Brazos Revenue Bonds") are to be
issued, in order to provide the benefit of a lien to secure the
obligation of the Company to make the Installment Payments and
Purchase Price payments pursuant to, and as such terms are defined
in, the Series 1997C Installment Sale and Bond Amortization
Agreement, dated as of February 1, 1997 (hereinafter sometimes
called the "1997C Brazos Agreement"), between the Brazos Authority
and the Company.
The Company shall receive a credit against its obligation to
make any payment of the principal of the bonds of the Ninety-fourth
Series, whether at maturity, upon redemption or otherwise, in an
amount equal to 115% of the sum of (a) the amount, if any, on
deposit in the Debt Service Fund maintained under the 1997A, 1997B
and 1997C Brazos Bond Indenture which reduces the corresponding
Installment Payment and (b) the amount, if any, paid by the Company
pursuant to Section 5.04 of the 1997C Brazos Agreement in respect
of the corresponding Installment Payment.
The Trustee may conclusively presume that the obligation of
the Company to pay the principal of the bonds of the Ninety-fourth
Series as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have
received a written notice from the trustee under the 1997A, 1997B
and 1997C Brazos Bond Indenture, signed by the President, a Vice
President or a Trust Officer of such trustee, stating that the
corresponding Installment Payment or Purchase Price payment has
become due and payable and has not been fully paid and specifying
the amount of funds required to make such payment.
(II) In the event that any Series 1997C Brazos Revenue Bonds
outstanding under the 1997A, 1997B and 1997C Brazos Bond Indenture
shall become immediately due and payable pursuant to Section 6.02
of the 1997A, 1997B and 1997C Brazos Bond Indenture, upon the
occurrence of an Event of Default under Section 6.01(a) of the
1997A, 1997B and 1997C Brazos Bond Indenture, all bonds of the
Ninety-fourth Series, then Outstanding, shall be redeemed by the
Company, on the date such Series 1997C Brazos Revenue Bonds shall
have become immediately due and payable, at the principal amount
thereof.
The Trustee may conclusively presume that no redemption of
bonds of the Ninety-fourth Series is required pursuant to the first
paragraph of this subsection (II) unless and until it shall have
received a written notice from the trustee under the 1997A, 1997B
and 1997C Brazos Bond Indenture, signed by the President, a Vice
President or a Trust Officer of such trustee, stating that Series
1997C Brazos Revenue Bonds have become immediately due and payable
pursuant to Section 6.02 of the 1997A, 1997B and 1997C Brazos Bond
Indenture, upon the occurrence of an Event of Default under Section
6.01(a) of the 1997A, 1997B and 1997C Brazos Bond Indenture and
specifying the principal amount thereof. Said notice shall also
contain a waiver of notice of such redemption by the trustee under
the 1997A, 1997B and 1997C Brazos Bond Indenture, as the holder of
all bonds of the Ninety-fourth Series then Outstanding.
(III) The Company hereby waives its right to have any notice
of redemption pursuant to subsection (II) of this Section 3 state
that such notice is subject to the receipt of the redemption moneys
by the Trustee on or before the date fixed for redemption.
Notwithstanding the provisions of Section 12.02 of the Mortgage,
any such notice under such subsection shall not be conditional.
(IV) At the option of the registered owner, any bonds of the
Ninety-fourth Series, upon surrender thereof for cancellation at
the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, shall be exchangeable for a like
aggregate principal amount of bonds of the same series of other
authorized denominations.
Bonds of the Ninety-fourth Series shall not be transferrable
except to any successor trustee under the 1997A, 1997B and 1997C
Brazos Bond Indenture, any such transfer to be made at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, New York.
The Company hereby waives any right to make a charge for any
exchange or transfer of bonds of the Ninety-fourth Series.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4. Subject to the amendments provided for in this
Fifty-seventh Supplemental Indenture, the terms defined in the
Original Indenture, as heretofore supplemented, shall for all
purposes of this Fifty-seventh Supplemental Indenture have the
meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 5. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Fifty-
seventh Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made by the Company
solely. In general, each and every term and condition contained in
Article XIX of the Original Indenture shall apply to and form part
of this Fifty-seventh Supplemental Indenture with the same force
and effect as if the same were herein set forth in full with such
omissions, variations and insertions, if any, as may be appropriate
to make the same conform to the provisions of this Fifty-seventh
Supplemental Indenture.
SECTION 6. Whenever in this Fifty-seventh Supplemental
Indenture either of the parties hereto is named or referred to,
this shall, subject to the provisions of Articles XVIII and XIX of
the Original Indenture, be deemed to include the successors and
assigns of such party, and all the covenants and agreements in this
Fifty-seventh Supplemental Indenture contained, by or on behalf of
the Company, or by or on behalf of the Trustee, shall, subject as
aforesaid, bind and inure to the respective benefits of the
respective successors and assigns of such parties, whether so
expressed or not.
SECTION 7. Nothing in this Fifty-seventh Supplemental
Indenture expressed or implied, is intended, or shall be construed
to confer upon, or to give to, any person, firm or corporation,
other than the parties hereto and the holders of the bonds and
coupons Outstanding under the Mortgage, any right, remedy or claim
under or by reason of this Fifty-seventh Supplemental Indenture or
any covenant, condition, stipulation, promise or agreement hereof,
and all the covenants, conditions, stipulations, promises and
agreements in this Fifty-seventh Supplemental Indenture contained,
by or on behalf of the Company, shall be for the sole and exclusive
benefit of the parties hereto, and of the holders of the bonds and
coupons Outstanding under the Mortgage.
SECTION 8. This Fifty-seventh Supplemental Indenture shall be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, TEXAS UTILITIES ELECTRIC COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Chairman of the Board and
Chief Executive, President or one of its Vice Presidents, and its
corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and THE BANK OF NEW
YORK has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by one of its Vice Presidents or
Assistant Vice Presidents and its corporate seal to be attested by
one of its Assistant Vice Presidents, Assistant Secretaries or
Assistant Treasurers, all as of the day and year first above
written.
TEXAS UTILITIES ELECTRIC COMPANY
By /s/ RON SEIDEL
---------------------------
RON SEIDEL
Vice President
Attest:
/s/ GLEN H. HIBBS
---------------------- [CORPORATE SEAL]
GLEN H. HIBBS
Assistant Secretary
Executed, sealed and delivered by
TEXAS UTILITIES ELECTRIC COMPANY
in the presence of:
/s/ W. E. PATTERSON
--------------------------
/s/ JUSTUS B. RHODES
--------------------------
THE BANK OF NEW YORK,
Trustee
By /s/ W. N. GITLIN
----------------------
W. N. GITLIN
Vice President
Attest:
/s/ STEPHEN J. GIURLANDO
------------------------------- [CORPORATE SEAL]
STEPHEN J. GIURLANDO
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ KATHLEEN BOYLE
---------------------------
/s/ JASON G. GREGORY
---------------------------
<PAGE>
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS )
Before me, a Notary Public in and for said State, on this day
personally appeared RON SEIDEL, known to me to be the person whose
name is subscribed to the foregoing instrument and known to me to
be a Vice President of TEXAS UTILITIES ELECTRIC COMPANY, a Texas
corporation, and acknowledged to me that said person executed said
instrument for the purposes and consideration therein expressed,
and as the act of said corporation.
Given under my hand and seal of office this 4th day of
February, 1997.
[NOTARIAL SEAL] /s/ LENAE B. DAVIS
-----------------------------
LENAE B. DAVIS
Notary Public, State of Texas
My Commission Expires June 23, 2000
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this day
personally appeared W.N. GITLIN, known to me to be the person whose
name is subscribed to the foregoing instrument and known to me to
be a Vice President of THE BANK OF NEW YORK, a New York
corporation, and acknowledged to me that said person executed said
instrument for the purposes and consideration therein expressed,
and as the act of said corporation.
Given under my hand and seal of office this 5th day of
February, 1997.
[NOTARIAL SEAL] /s/ WILLIAM J. CASSELS
--------------------------------
WILLIAM J. CASSELS
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York
County
Commission Expires May 16, 1998
<PAGE>
SUMMARY OF RECORDING DATA
Fifty-seventh Supplemental Indenture
Filed February 13, 1997
Office of the Secretary of the State of Texas,
Utility Security Instrument File No. 83-281286
__________________________________________
TEXAS UTILITIES ELECTRIC COMPANY
TO
THE BANK OF NEW YORK
TRUSTEE
_________
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF ________ 1, 1997
__________________________________________
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . 6
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED
TO BE PART OF THE INDENTURE.
<PAGE>
Securities . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . 12
SECTION 107. Conflict with Trust Indenture Act . . . . 12
SECTION 108. Effect of Headings and Table of Contents . 12
SECTION 109. Successors and Assigns . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 13
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . 13
Security Forms . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . 14
The Securities . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . 21
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . 23
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . 24
SECTION 308. Persons Deemed Owners . . . . . . . . . . 25
SECTION 309. Cancellation by Security Registrar . . . . 25
SECTION 310. Computation of Interest . . . . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . . . . 26
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . 26
Redemption of Securities . . . . . . . . . . . . . . . . . . 26
SECTION 401. Applicability of Article . . . . . . . . . 26
SECTION 402. Election to Redeem; Notice to Trustee . . 27
SECTION 403. Selection of Securities to Be Redeemed . . 27
SECTION 404. Notice of Redemption . . . . . . . . . . . 27
SECTION 405. Securities Payable on Redemption Date . . 29
SECTION 406. Securities Redeemed in Part . . . . . . . 29
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . 30
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 501. Applicability of Article . . . . . . . . . 30
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . 30
SECTION 503. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . 31
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . 31
SECTION 602. Maintenance of Office or Agency . . . . . 31
SECTION 603. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . 32
SECTION 604. Corporate Existence . . . . . . . . . . . 34
SECTION 605. Maintenance of Properties . . . . . . . . 34
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . . . . . . 34
SECTION 607. Waiver of Certain Covenants . . . . . . . 34
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . 35
Satisfaction and Discharge . . . . . . . . . . . . . . . . . 35
SECTION 701. Satisfaction and Discharge of Securities . 35
SECTION 702. Satisfaction and Discharge of Indenture . 37
SECTION 703. Application of Trust Money . . . . . . . . 38
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . 39
Events of Default; Remedies . . . . . . . . . . . . . . . . . 39
SECTION 801. Events of Default . . . . . . . . . . . . 39
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . 40
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . 41
SECTION 804. Trustee May File Proofs of Claim . . . . . 42
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . 43
SECTION 806. Application of Money Collected . . . . . . 43
SECTION 807. Limitation on Suits . . . . . . . . . . . 43
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . 44
SECTION 809. Restoration of Rights and Remedies . . . . 44
SECTION 810. Rights and Remedies Cumulative . . . . . . 45
SECTION 811. Delay or Omission Not Waiver . . . . . . . 45
SECTION 812. Control by Holders of Securities . . . . . 45
SECTION 813. Waiver of Past Defaults . . . . . . . . . 45
SECTION 814. Undertaking for Costs . . . . . . . . . . 46
SECTION 815. Waiver of Stay or Extension Laws . . . . . 46
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . 47
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 901. Certain Duties and Responsibilities . . . 47
SECTION 902. Notice of Defaults . . . . . . . . . . . . 47
SECTION 903. Certain Rights of Trustee . . . . . . . . 48
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . 49
SECTION 905. May Hold Securities . . . . . . . . . . . 49
SECTION 906. Money Held in Trust . . . . . . . . . . . 49
SECTION 907. Compensation and Reimbursement . . . . . . 49
SECTION 908. Disqualification; Conflicting Interests. . 50
SECTION 909. Corporate Trustee Required; Eligibility . 51
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . 51
SECTION 911. Acceptance of Appointment by Successor . . 53
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . 54
SECTION 913. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 914. Co-trustees and Separate Trustees. . . . . 55
SECTION 915. Appointment of Authenticating Agent . . . 56
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . 58
Holders' Lists and Reports by Trustee and Company . . . . . . 58
SECTION 1001. Lists of Holders . . . . . . . . . . . . 58
SECTION 1002. Reports by Trustee and Company . . . . . 59
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . 59
Consolidation, Merger, Conveyance or Other Transfer . . . . 59
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . 59
SECTION 1102. Successor Corporation Substituted . . . . 60
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . 60
Supplemental Indentures . . . . . . . . . . . . . . . . . . . 60
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . 60
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1203. Execution of Supplemental Indentures . . 64
SECTION 1204. Effect of Supplemental Indentures . . . . 64
SECTION 1205. Conformity With Trust Indenture Act . . . 64
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . 64
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . 65
Meetings of Holders; Action Without Meeting . . . . . . . . . 65
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1302. Call, Notice and Place of Meetings . . . 65
SECTION 1303. Persons Entitled to Vote at Meetings . . 66
SECTION 1304. Quorum; Action . . . . . . . . . . . . . 66
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of Meetings. 67
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1307. Action Without Meeting . . . . . . . . . 69
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . 69
Immunity of Incorporators, Shareholders, Officers and
Directors . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1401. Liability Solely Corporate . . . . . . . 69
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 70
Signatures and Seals . . . . . . . . . . . . . . . . . . . . 70
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 71
<PAGE>
TEXAS UTILITIES ELECTRIC COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _____________ 1, 1997
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 908
910
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Section 312 (a) . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Section 313 (a) . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Section 314 (a) . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 814
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 603
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of __________ 1, 1997, between
TEXAS UTILITIES ELECTRIC COMPANY, a corporation duly organized
and existing under the laws of the State of Texas (herein called
the "Company"), having its principal office at Energy Plaza, 1601
Bryan Street, Dallas, Texas 75201, and THE BANK OF NEW YORK, a
corporation of the State of New York, having its principal
corporate trust office at 101 Barclay Street, New York, New York
10286, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), in an unlimited
aggregate principal amount to be issued in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "CONTROL" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or through
one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other officer or agent of the Company duly
authorized by the Board of Directors to act in respect of matters
relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"COMPANY" means the Person named as the "COMPANY" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "COMPANY" shall mean such
successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution and delivery of this Indenture is located at
101 Barclay Street, New York, New York 10286.
"CORPORATION" means a corporation, association,
company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "INTEREST" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section
801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States and entitled to the benefit
of the full faith and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or
examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of a particular series of Securities
established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"MATURITY", when used with respect to any Security, means
the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company, or other counsel acceptable to
the Trustee.
"OUTSTANDING", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to
the Security Registrar for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company
or of such other obligor (unless the Company, such Affiliate
or such obligor owns all Securities Outstanding under this
Indenture, or (except for the purposes of actions to be
taken by Holders of (i) more than one series voting as a
class under Section 812 or (ii) more than one series or more
than one Tranche, as the case may be, voting as a class
under Section 1202) all Outstanding Securities of each such
series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor; and
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium,
if any, or interest, if any, on any Securities on behalf of the
Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"PERSON" means any individual, corporation, partnership,
joint venture, trust or unincorporated organization or any
Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, or any Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to
Section 602, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section
311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in
part by such Security.
"STATED MATURITY", when used with respect to any obligation
or any installment of principal thereof or interest thereon,
means the date on which the principal of such obligation or such
installment of principal or interest is stated to be due and
payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal
amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"TRUSTEE" means the Person named as the "TRUSTEE" in the
first paragraph of this Indenture until a successor Trustee shall
have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and
thereafter "TRUSTEE" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than
one such Person, "TRUSTEE" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities
of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall, if requested by the Trustee, furnish to the
Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action (including any covenants compliance with which
constitutes a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to
which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied
with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other action
provided by this Indenture to be made, given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the
provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when
such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of
any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject
to Section 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
The record of any meeting of Holders shall be proved in the
manner provided in Section 1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may,
and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by
the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of
record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to
time designate, or transmitted by certified or registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street 21W
New York, New York 10286
Attention: Vice President, Corporate Trust Administration
Telephone: (212) 815-5375
Telecopy: (212) 815-5915
If to the Company, to:
Texas Utilities Electric Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Attention: Treasurer
Telephone: (214) 812-4600
Telecopy: (214) 812-3366
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by certified or
registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities 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.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, EXCEPT TO THE EXTENT THAT THE LAW OF ANY OTHER JURISDICTION
SHALL BE MANDATORILY APPLICABLE.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment, with the same force and effect, and in the
same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be,
and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections
301 or 1201(g), the Securities of each series shall be issuable
in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the
officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
Dated:
_____________________________
as Trustee
By:
_____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there
shall be established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate pursuant
to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series, or any Tranche thereof, is
payable or any formulary or other method or other means by
which such date or dates shall be determined, by reference
to an index or other fact or event ascertainable outside of
this Indenture or otherwise (without regard to any
provisions for redemption, prepayment, acceleration,
purchase or extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate
or rates shall be determined, by reference to an index or
other fact or event ascertainable outside of this Indenture
or otherwise; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if
any, for the interest payable on such Securities on any
Interest Payment Date; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series, or any Tranche thereof,
shall be payable, (2) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or
upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar for such series or Tranche;
and if such is the case, that the principal of such
Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of
such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or
other mandatory redemption provisions or at the option of a
Holder thereof and the period or periods within which or the
date or dates on which, the price or prices at which and the
terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series, or any Tranche thereof, shall be payable (if
other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be payable at
the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such
securities or other property, or the formulary or other
method or other means by which such amount shall be
determined, and the period or periods within which, and the
terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series, or any Tranche thereof, may be determined
with reference to an index or other fact or event
ascertainable outside of this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, or
any Tranche thereof, in addition to those set forth in
Article Six;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in respect of
the Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of
temporary form and (iii) any and all other matters
incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof; and
(v) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer and may have the corporate seal
of the Company affixed thereto or reproduced thereon attested by
any other Authorized Officer or by the Secretary or an Assistant
Secretary of the Company. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers or the Secretary or an Assistant Secretary of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or
(ii) in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the
Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in
accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have
been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued and delivered by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been
duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company,
entitled to the benefits provided by this Indenture,
and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders
or pursuant to such procedures (acceptable to the
Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been
duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will have been duly issued under this
Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits
provided by the Indenture, and enforceable in
accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws, and
to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form,
terms thereof and the legality, validity, binding effect and
enforceability thereof, and compliance of the authentication and
delivery thereof with the terms and conditions of this Indenture,
upon the Opinion of Counsel and other documents delivered
pursuant to Sections 201 and 301 and this Section, as applicable,
at or prior to the time of the first authentication of Securities
of such series unless and until such opinion or other documents
have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of
a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any
applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, no Security shall
be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating
Agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities for such exchange, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver
in exchange therefor definitive Securities of the same series and
Tranche of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series, a register (all registers kept in
accordance with this Section being collectively referred to as
the ""Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series, or any Tranche
thereof, and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for
the Securities of each series on a consolidated basis, and such
Person is referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its
offices as an office in which a register with respect to the
Securities of one or more series shall be maintained, and the
Company may designate itself the Security Registrar with respect
to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon surrender for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, any Security of such series or Tranche may be
exchanged at the option of the Holder, for one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, or any Tranche
thereof, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche 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.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall promptly cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest, if any, on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months
and for any period shorter than a full month, on the basis of the
actual number of days elapsed in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium or
interest thereon, shall not be discharged or satisfied by any
tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the
case of its negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction
or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series, or, in the absence of any such provision, by
such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of
such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if,
as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the Trustee,
if so directed by Company Order, shall select for redemption all
or any principal amount of such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner
provided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment with respect to the Securities of such series; provided,
however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash;
(e) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities
to be so delivered. If the Company shall not deliver such
Officer's Certificate, the next succeeding sinking fund
payment for such series shall be made entirely in cash in
the amount of the mandatory sinking fund payment. Not less
than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section
403 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the
manner provided in Section 404. Such notice having been
duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 405 and
406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1, commencing June 1, 1998, the
Company shall deliver to the Trustee an Officer's Certificate
which need not comply with Section 102, executed by the principal
executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such officer's
knowledge of the Company's compliance with all conditions and
covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in (a)
Section 602 or any additional covenant or restriction specified
with respect to the Securities of any series, or any Tranche
thereof, as contemplated by Section 301, if before the time for
such compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered
as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the Holders
of a majority in principal amount of Securities Outstanding under
this Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order
stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the
Company, to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the
covenants contained in Sections 602 and 603) or any other
covenants made in respect of such Securities or portions thereof
as contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article Seven
shall survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Eligible Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, shall be required to
return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article Seven shall
survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money
deposited pursuant to Section 701, nor the principal or interest
payments on any such Eligible Obligations, shall be withdrawn or
used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, and
interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 603; provided,
however, that, so long as there shall not have occurred and be
continuing an Event of Default, any cash received from such
principal or interest payments on such Eligible Obligations, if
not then needed for such purpose, shall, to the extent
practicable and upon Company Request, be invested in Eligible
Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys
and the principal of and interest on any other Eligible
Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and
to become due on such Securities or portions thereof on and prior
to the Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as received, free
and clear of any trust, lien or pledge under this Indenture
except the lien provided by Section 907; and provided, further,
that, so long as there shall not have occurred and be continuing
an Event of Default, any moneys held in accordance with this
Section on the Maturity of all such Securities in excess of the
amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over
to the Company free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have
occurred and be continuing, moneys to be paid over to the Company
pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events:
(a) failure to pay interest, if any, on any Security
of such series within 30 days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series at its Maturity; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to
the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Securities of such
series but not applicable to all Outstanding Securities shall
have occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal amount
(or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount as may be
specified in the terms thereof as contemplated by Section 301) of
all Securities of such series and interest accrued thereon to be
due and payable immediately. If an Event of Default due to
default in the performance of any other of the covenants or
agreements herein applicable to all Outstanding Securities or an
Event of Default specified in Section 801(d) or (e) shall have
occurred and be continuing, either the Trustee or the Holders of
not less than 33% in principal amount of all Securities then
Outstanding (considered as one class), and not the Holders of the
Securities of any one of such series, may declare the principal
of all Securities and interest accrued thereon to be due and
payable immediately.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of
such series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest, if any, at
the rate or rates prescribed therefor in such
Securities;
(4) all amounts due to the Trustee under Section
907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the nonpayment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on any overdue principal and interest, at the rate or
rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect
of which or for the benefit of which such money shall have been
collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 907;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and
be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in conflict
with any rule of law or with this Indenture. The Trustee may
take any other action, deemed proper by the Trustee, which is not
inconsistent with any such direction. Before proceeding to
exercise any right or power hereunder at the direction of such
Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act and no implied
covenants or obligations shall be read into this Indenture
against the Trustee. For purposes of Sections 315(a) and
315(c) of the Trust Indenture Act, the term "default" is
hereby defined as an Event of Default which has occurred and
is continuing.
(b) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this
Indenture to the contrary, the duties and responsibilities
of the Trustee under this Indenture shall be subject to the
protections, exculpations and limitations on liability
afforded to the Trustee under the provisions of the Trust
Indenture Act.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 45 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, or as otherwise expressly provided herein,
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records
and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of
any default or Event of Default, as the case may be, with
respect to the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the default or
Event of Default, as the case may be, or (2) written notice
of such default or Event of Default, as the case may be,
shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such
Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 908 and
913, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to the Trustee's negligence,
wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless
from and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder,
including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d)
or Section 801(e), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 or the Dollar equivalent
of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 after written request therefor by the Company or by
any Holder who has been a bona fide Holder for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written
request therefor by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or (y) subject to Section 814, any Holder who has
been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with
respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company (or, should the Company fail so to act
promptly, the successor trustee at the expense of the
Company) shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written
notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names
and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its
corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and (3)
shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and deliver
to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
Tranche thereof, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series or Tranche
issued upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States,
any State or territory thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, in accordance with, and subject to the
provisions of, Section 907.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: ________________________
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in
each year, commencing December 1, 1997, and at such other times
as the Trustee may request in writing, the Company shall furnish
or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than November 1 in each year, commencing
November 1, 1997, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding September
15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchange.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into
any other corporation, or convey or otherwise transfer or lease
its properties and assets substantially as an entirety to any
Person, unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a Person organized and validly existing
under the laws of the United States, any State thereof or
the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any,
and interest, if any, on all Outstanding Securities and the
performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such
transaction no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, or
other transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by
the Company into any other corporation or any conveyance, or
other transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section
1101, the successor corporation formed by such consolidation or
into which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all
as provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or
more specified series, or one or more specified Tranches
thereof, or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this
Indenture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series or Tranche Outstanding on the
date of such indenture supplemental hereto in any material
respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or when no
Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for all but not
part of the Securities; or
(f) to establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and
301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a noncertificated
system of registration for all, or any series or Tranche of,
the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities, or any Tranche thereof,
shall be payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company in respect of all
or any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this
Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one or
more changes to, or the elimination of, any provisions
hereof which, at the date of the execution and delivery
hereof or at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to
effect such changes or elimination, and the Company and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to evidence
such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act
of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of Securities
of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802, or change the coin or currency (or other property), in
which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on
or after the Redemption Date), without, in any such case,
the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche
thereof, the consent of the Holders of which is required for
any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements
of Section 1304 for quorum or voting, without, in any such
case, the consent of the Holders of each Outstanding
Security of such series or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof, except to increase the
percentages in principal amount referred to in this Section
or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b), 914 and
1201(h).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or one or more Tranches thereof, or which modifies
the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or the
elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental
Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company
or by the Holders of 33% in aggregate principal amount of
all of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
and Tranches in the amount above specified, as the case may
be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or any Tranche or
Tranches thereof, or by such of them as are not present at
the meeting in person or by proxy, and by the Company and
the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution
presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of
Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series and Tranches calling
the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without
further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest, if any, 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 this Indenture, against any incorporator,
shareholder, 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 this Indenture and all the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, shareholder, officer or director, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or
any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom
or therefrom, 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 this Indenture and the
issuance of the Securities.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first
above written.
TEXAS UTILITIES ELECTRIC COMPANY
By:
------------------------------
<PAGE>
THE BANK OF NEW YORK, Trustee
By:
-----------------------------------
W.N. GITLIN
Vice President
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ____, 1997, before me personally
came __________________________, to me known, who, being by me
duly sworn, did depose and say that she is the ________________
of Texas Utilities Electric Company, one of the corporations
described in and which executed the foregoing instrument; that
she knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that
she signed her name thereto by like authority.
---------------------------------
Susan Fields
Notary Public, State of New York
No. 31-4980055
Qualified in New York County
Commission Expires April 8, ____
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ____ 1997, before me personally
came W.N. Gitlin, to me known, who, being by me duly sworn, did
depose and say that he is a Vice President of The Bank of New
York, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like
authority.
----------------------------------
Moira Feeney
Notary Public, State of New York
No. 24-4991961
Qualified in Kings County
Commission Expires February 18, ____
TEXAS UTILITIES ELECTRIC COMPANY
OFFICER'S CERTIFICATE
, the of Texas Utilities Electric
------------------ --------
Company (the "Company"), pursuant to the authority granted in the
Board Resolutions of the Company dated May 7, 1997, and Sections
201 and 301 of the Indenture defined herein, does hereby certify
to The Bank of New York (the "Trustee"), as Trustee under the
Indenture of the Company (For Unsecured Debt Securities) dated as
of 1, 1997 (the "Indenture") that:
-----
1. The securities of the first series to be issued under
the Indenture shall be designated " % Debentures, due
---
" (the "Debentures of the First Series").
----------
All capitalized terms used in this certificate which
are not defined herein but are defined in the Indenture
shall have the meanings set forth in the Indenture;
2. The Debentures of the First Series shall be limited in
aggregate principal amount to $ at any time
-----------
Outstanding, except as contemplated in Section 301(b)
of the Indenture;
3. The Debentures of the First Series shall mature and the
principal shall be due and payable together with all
accrued and unpaid interest thereon on , ;
------- -----
4. The Debentures of the First Series shall bear interest
from , at the rate of % per annum
------------ ----
payable semi-annually on 1 and 1 of each
------ -----
year (each, an "Interest Payment Date") commencing
1, 199 . The amount of interest payable for
--------- --
any such period will be computed on the basis of a 360-
day year of twelve 30-day months. Interest on the
Debentures of the First Series will accrue from
but if interest has been paid on such
-----------------
Debentures of the First Series, then from the most
recent Interest Payment Date to which interest has been
paid or duly provided for. 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 such Interest Payment Date;
5. Each installment of interest on a Debenture of the
First Series shall be payable to the Person in whose
name such Debenture of the First Series is registered
at the close of business on the day preceding [15th day
of the calendar month next preceding] the corresponding
Interest Payment Date (the "Regular Record Date") for
the Debentures of the First Series; provided, however,
that if the Debentures of the First Series are not held
by a securities depositary, the Company shall have the
right to change the Regular Record Date by one or more
Officer's Certificates. Any installment of interest on
the Debentures of the First Series not punctually paid
or duly provided for shall forthwith cease to be
payable to the Holders of such Debentures of the First
Series on such Regular Record Date, and may be paid to
the Persons in whose name the Debentures of the First
Series are registered at the close of business on a
Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest. Notice of such
Defaulted Interest and Special Record Date shall be
given to the Holders of the Debentures of the First
Series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures of the
First Series may be listed, and upon such notice as may
be required by such exchange, all as more fully
provided in the Indenture;
6. The principal and each installment of interest on the
Debentures of the First Series shall be payable at, and
registration and registration of transfers and
exchanges in respect of the Debentures of the First
Series may be effected at, the office or agency of the
Company in The City of New York; provided that payment
of interest may be made at the option of the Company by
check mailed to the address of the persons entitled
thereto. Notices, demands to or upon the Company in
respect of the Debentures of the First Series may be
served at the office or agency of the Company in The
City of New York. The Trustee will initially be the
agency of the Company for such service of notices and
demands; provided, however, that the Company reserves
the right to change, by one or more Officer's
Certificates any such office or agency. The Trustee
will be the Security Registrar and the Paying Agent for
the Debentures of the First Series;
7. [ Redemption provisions, if any, should be inserted];
8. [The Debentures of the First Series will be originally
issued in global form payable to Cede & Co. and will,
unless and until the Debentures of the First Series are
exchanged in whole or in part for certificated
Debentures of the First Series registered in the names
of various beneficial holders thereof (in accordance
with the conditions set forth in the legend appearing
in the form of the Debentures of the First Series,
hereto attached as Exhibit A), contain restrictions on
transfer, substantially as described in such form;]
9. No service charge shall be made for the registration of
transfer or exchange of the Debentures of the First
Series; 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;
10. If the Company shall make any deposit of money and/or
Eligible Obligations with respect to any Debentures, or
any portion of the principal amount thereof, as
contemplated by Section 701 of the Indenture, the
Company shall not deliver an Officer's Certificate
described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to
the Trustee, together with such Officer's Certificate,
either:
(A) an instrument wherein the Company,
notwithstanding the satisfaction and discharge of its
indebtedness in respect of the Debentures, 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 701), 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 Debentures or portions
thereof, all in accordance with and subject to the
provisions of said Section 701; 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 Debentures, 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.
11. The Debentures of the First Series shall have such
other terms and provisions as are provided in the form
set forth in Exhibit A hereto, and shall be issued in
substantially such form;
12. The undersigned has read all of the covenants and
conditions contained in the Indenture relating to the
issuance of the Debentures of the First Series and the
definitions in the Indenture relating thereto and in
respect of which this certificate is made;
13. 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;
14. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to express
an informed opinion whether or not such covenants and
conditions have been complied with; and
15. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including
any covenants compliance with which constitutes a
condition precedent) to the authentication and delivery
of the Debentures of the First Series requested in the
accompanying Company Order have been complied with.
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this day of , 199 .
------- ------- -
-----------------------------
<PAGE>
No.
-----------------
Cusip No.
-----------
EXHIBIT A
[FORM OF FACE OF DEBENTURE]
[(See legend at the end of this Security for
restrictions on transferability and change of form)]
TEXAS UTILITIES ELECTRIC COMPANY
% DEBENTURES, DUE ,
--- ---------- -----
TEXAS UTILITIES ELECTRIC COMPANY, a corporation duly
organized and existing under the laws of the State Texas (herein
referred to as the "Company", which term includes any successor
Person under the Indenture), for value received, hereby promises
to pay to [Cede & Co.] or registered assigns, the principal sum
of Dollars on 1, , and to pay
------------------ --------- -----
interest on said principal sum, from , 199 , or from the
-------- -
most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on 1 and 1 of each
----- -----
year, commencing , 199 , at the rate of % per
------------- - ----
annum until the principal hereof is paid or made available for
payment. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve
30-day months. Interest on the Securities of this series will
accrue from , 199 , to the first Interest Payment Date,
---------- -
and thereafter will accrue from the last Interest Payment Date to
which interest has been paid or duly provided for. 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 Regular Record Date for such interest, which shall be a day
preceding [the 15th day of the calendar month next preceding]
such Interest Payment Date. 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 on the
reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
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 may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
TEXAS UTILITIES ELECTRIC COMPANY
By:
------------------------------
ATTEST:
----------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
------------------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
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,
dated as of 1, 1997 (herein, together with any amendments
-----
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,
including the Board Resolutions and Officer's Certificate filed
with the Trustee on , 199 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. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to
$ .
---------
[Redemption provisions, if any, should be inserted]
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.
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.
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
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein 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, 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.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
<PAGE>
[LEGEND
Unless and until this Security is exchanged in whole or in
part for certificated Securities registered in the names of the
various beneficial holders hereof as then certified to the
Corporate Trustee by The Depository Trust Company (55 Water
Street, New York, New York) or its successor (the "Depositary"),
this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made
payable to Cede & Co., or such other name, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
This Security may be exchanged for certificated Securities
registered in the names of the various beneficial owners hereof
if (a) the Depositary is at any time unwilling or unable to
continue as depositary and a successor depositary is not
appointed by the Company within 90 days, or (b) the Company
elects to issue certificated Securities to beneficial owners.
Any such exchange shall be made upon receipt by the Trustee of a
Company Order therefor and certificated Securities of this series
shall be registered in such names and in such denominations as
shall be certified to the Company and the Trustee by the
Depositary.]
Exhibit 5(c)
[Letterhead of Worsham, Forsythe & Wooldridge, L.L.P.]
June 30, 1997
Texas Utilities Electric Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Referring to the proposed issuance and sale from time to
time by Texas Utilities Electric Company (Company) of First
Mortgage Bonds (Bonds) and Debt Securities (Securities) in a
principal amount not to exceed in the aggregate $448,850,000, as
contemplated in Post Effective Amendment No. 1 to registration
statement No. 33-83976 (said registration statement, as so amended,
the Registration Statement) to be filed by the Company with the
Securities and Exchange Commission (Commission) under the
Securities Act of 1933, as amended, on or about the date hereof, we
are of the opinion that:
1. The Company is a corporation validly organized and
existing under the laws of the State of Texas.
2. With respect to those Bonds which are to be issued
at any one time (Offered Bonds), all requisite
action necessary to make the Offered Bonds, valid,
legal and binding obligations of the Company shall
have been taken when:
(a) The Board of Directors, an appropriate
committee thereof or the appropriate officers
of the Company shall have authorized the
issuance and sale of the Offered Bonds, an
appropriate Supplemental Indenture to the
Company's Mortgage and Deed of Trust, dated as
of December 1, 1983, to Irving Trust Company
(now The Bank of New York), Trustee (Mortgage)
and any other action necessary to the
consummation of the proposed issuance and sale
of the Offered Bonds;
(b) The aforementioned Supplemental Indenture shall
have been duly executed and delivered by the
parties thereto; and
(c) The Offered Bonds shall have been issued and
delivered for the consideration contemplated in
the Registration Statement and any prospectus
supplement relating to the Offered Bonds and in
accordance with the provisions of the Mortgage,
as heretofore supplemented and to be further
supplemented by the aforementioned Supplemental
Indenture.
3. With respect to those Securities which are to be
issued at any one time (Offered Securities), all
requisite action necessary to make the Offered
Securities, valid, legal and binding obligations of
the Company shall have been taken when:
(a) The Board of Directors, an appropriate
committee thereof or the appropriate officers
of the Company shall have authorized the
issuance and sale of the Offered Securities, an
appropriate loan agreement, indenture, trust
agreement or other instrument, agreement or
document (Instrument) pursuant to which the
Offered Securities will be issued and any other
action necessary to the consummation of the
proposed issuance and sale of the Offered
Securities;
(b) The Instrument shall have been duly executed
and delivered by the parties thereto; and
(c) The Offered Securities shall have been issued
and delivered for the consideration
contemplated in the Registration Statement and
any prospectus supplement relating to the
Offered Securities and in accordance with the
provisions of the Instrument.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement and to the
use of our name as counsel in such Registration Statement and as
authority for certain of the statements contained, or incorporated
by reference, therein.
Very truly yours,
WORSHAM, FORSYTHE
& WOOLDRIDGE L.L.P.
By: /s/ T. A. Mack
--------------------------
A Partner
Exhibit 5(d)
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019-4097
Telephone 212 603-2000
Fax 212 603-2001
(212) 603-2000
New York, New York
June 30, 1997
Texas Utilities Electric Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Ladies and Gentlemen:
Referring to the proposed issuance and sale from
time to time by Texas Utilities Electric Company (Company)
of First Mortgage Bonds (Bonds) and Debt Securities
(Securities) in a principal amount not to exceed in the
aggregate $448,850,000, as contemplated in Post Effective
Amendment No. 1 to registration statement No. 33-83976
(said registration statement, as so amended, the
Registration Statement) to be filed by the Company with the
Securities and Exchange Commission (Commission) under the
Securities Act of 1933, as amended, on or about the date
hereof, we are of the opinion that:
1. The Company is a corporation validly
organized and existing under the laws of the
State of Texas.
2. With respect to those Bonds which are to be
issued at any one time (Offered Bonds), all
requisite action necessary to make the
Offered Bonds, valid, legal and binding
obligations of the Company shall have been
taken when:
(a) The Board of Directors, an appropriate
committee thereof or the appropriate
officers of the Company shall have
authorized the issuance and sale of the
Offered Bonds, an appropriate
Supplemental Indenture to the Company's
Mortgage and Deed of Trust, dated as of
December 1, 1983, to Irving Trust
Company (now The Bank of New York),
Trustee (Mortgage) and any other action
necessary to the consummation of the
proposed issuance and sale of the
Offered Bonds;
(b) The aforementioned Supplemental
Indenture shall have been duly executed
and delivered by the parties thereto;
and
(c) The Offered Bonds shall have been
issued and delivered for the
consideration contemplated in the
Registration Statement and any
prospectus supplement relating to the
Offered Bonds and in accordance with
the provisions of the Mortgage, as
heretofore supplemented and to be
further supplemented by the
aforementioned Supplemental Indenture.
3. With respect to those Securities which are
to be issued at any one time (Offered
Securities), all requisite action necessary
to make the Offered Securities, valid, legal
and binding obligations of the Company shall
have been taken when:
(a) The Board of Directors, an appropriate
committee thereof or the appropriate
officers of the Company shall have
authorized the issuance and sale of the
Offered Securities, an appropriate loan
agreement, indenture, trust agreement
or other instrument, agreement or
document (Instrument) pursuant to which
the Offered Securities will be issued
and any other action necessary to the
consummation of the proposed issuance
and sale of the Offered Securities;
(b) The Instrument shall have been duly
executed and delivered by the parties
thereto; and
(c) The Offered Securities shall have been
issued and delivered for the
consideration contemplated in the
Registration Statement and any
prospectus supplement relating to the
Offered Securities and in accordance
with the provisions of the Instrument.
We are members of the New York Bar and do not
hold ourselves out as experts on the laws of the state of
Texas. Accordingly, in rendering this opinion, we have
relied, with your consent, as to all matters governed by
the laws of Texas, upon an opinion of even date herewith
addressed to you by Worsham, Forsythe & Wooldridge, L.L.P.,
of Dallas, Texas, General Counsel for the Company, which is
being filed as an exhibit to the Registration Statement.
We hereby consent to the use of our name in such
Registration Statement and to the use of this opinion as an
exhibit thereto.
Very truly yours,
/s/ Reid & Priest LLP
Reid & Priest LLP
EXHIBIT 12(B)
TEXAS UTILITIES ELECTRIC COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED
CHARGES, AND TO FIXED CHARGES
YEAR ENDED
DECEMBER 31,
----------------------
3/97 1996 1995
---- ---- ----
EARNINGS: THOUSANDS OF DOLLARS,
EXCEPT RATIOS
Net income $ 852,921 $ 862,695 $ 452,631
Add: Total federal 388,983 405,499 219,953
income taxes
Fixed charges
(see detail
below) 640,147 649,295 655,678
----------- ----------- -----------
Total earnings $ 1,882,051 $ 1,917,489 $ 1,321,262
=========== =========== ===========
FIXED CHARGES:
Interest on mortgage $ 475,513 $486,791 $ 526,977
Interest on other long 21,734 26,456 44,071
-term debt
Amortization of debt 11,190 11,067 9,959
discount, (premium)
and expense
Amortization of loss on 23,149 22,520 19,547
reacquired debt
Other interest charges 47,962 48,872 28,994
Preferred trust 39,755 33,001 1,801
securities
distributions
Rentals representative 20,844 20,588 24,329
of the interest factor --------- --------- ---------
Total fixed charges $ 640,147 $ 649,295 $ 655,678
========= ========= =========
RATIO OF EARNINGS TO
FIXED CHARGES 2.94 2.95 2.02
---- ---- ----
YEAR ENDED DECEMBER 31,
------------------------
1994 1993 1992
---- ---- ----
EARNINGS:
Net income $ 658,192 $ 476,526 $ 821,123
Add:Total federal
income taxes 342,687 241,740 241,852
Fixed charges
(see detail 688,194 715,609 719,644
below) ----------- ----------- --------
Total earnings $ 1,689,073 $ 1,433,875 $ 1,782,619
=========== ========== ===========
FIXED CHARGES:
Interest on $ 567,363 $ 610,999 $ 598,235
mortgage bonds
Interest on other
long-term debt 32,183 45,787 54,379
Amortization of
debt discount,
(premium) and
expense 8,615 6,493 4,778
Amortization of
loss on reacquired
debt 17,608 12,471 9,301
Other interest
charges 36,408 10,222 22,123
Preferred trust -- -- --
securities
distributions
Rentals
representative of
the interest
factor 26,017 29,637 30,828
------ ------ ------
Total fixed charges $ 688,194 $ 715,609 $ 719,644
========= ========= =========
RATIO OF EARNINGS
TO FIXED CHARGES 2.45 2.00 2.48
---- ---- ----
EXHIBIT 15(b)
DELOITTE &
TOUCHE LLP
------------ -------------------------------------------------
Suite 1600 Telephone: (214) 777-7000
Texas Commerce Tower
2200 Ross Avenue
Dallas, Texas 75201-6778
Texas Utilities Electric Company:
We have reviewed, in accordance with standards established by the
American Institute of Certified Public Accountants, the unaudited
condensed consolidated interim financial information of Texas
Utilities Electric Company and subsidiaries for the periods ended
March 31, 1997 and 1996, as indicated in our report dated May 8,
1997; because we did not perform an audit, we expressed no
opinion on that information.
We are aware that our report referred to above, which was
included in your Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997, is being used in this Post Effective
Amendment No. 1 to Registration Statement No. 33-83976.
We also are aware that the aforementioned report, pursuant to
Rule 436(c) under the Securities Act of 1933, is not considered a
part of the Registration Statement, as so amended, prepared or
certified by an accountant or a report prepared or certified by
an accountant within the meaning of Sections 7 and 11 of that
Act.
/s/ Deloitte & Touche LLP
June 30, 1997
EXHIBIT 23(c)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post
Effective Amendment No. 1 to Registration Statement No. 33-83976
of Texas Utilities Electric Company (the "Company") on Form S-3
of our report dated March 12, 1997, which report includes an
explanatory paragraph concerning the Company's change during 1995
in its method of accounting for the impairment of long lived
assets and long lived assets to be disposed of to conform with
Statement of Financial Accounting Standards No. 121, appearing in
the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 and to the reference to us under the heading
"Experts and Legality" in the Prospectus which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
Dallas, Texas
June 30, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
---------------
TEXAS UTILITIES ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Texas 75-1837355
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Energy Plaza, 1601 Bryan Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip code)
---------------
DEBENTURES*
(Title of the indenture securities)
----------------
* Specific title(s) to be determined in connection with sale(s)
of Debentures.
<PAGE>
ITEM 1. GENERAL INFORMATION.*
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Superintendent of Banks of 2 Rector Street, New York,
the State of New York N.Y. 10006 and Albany, N.Y.
12203
Federal Reserve Bank of 33 Liberty Plaza, New York,
New York N.Y. 10045
Federal Deposit Insurance 550 17th Street, N.W.,
Corporation Washington, D.C. 20429
New York Clearing House
Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with
the Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture
Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. - A copy of the Organization Certificate of The
Bank of New York (formerly Irving Trust
Company) as now in effect, which contains the
authority to commence business and a grant of
powers to exercise corporate trust powers.
(Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-
6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and
Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. - A copy of the existing By-laws of the
Trustee. (Exhibit 4 to Form T-1 filed with
Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by
Section 321(b) of the Act. (Exhibit 6 to
Form T-1 filed with Registration Statement
No. 33-44051.)
7. - A copy of the latest report of condition of
the Trustee published pursuant to law or to
the requirements of its supervising or
examining authority.
-----------------
* Pursuant to General Instruction B, the Trustee has responded
only to Items 1, 2 and 16 of this form since to the best of the
knowledge of the Trustee the obligor is not in default under any
indenture under which the Trustee is a trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless
amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee,
The Bank of New York, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of June, 1997.
THE BANK OF NEW YORK
By: /s/ Walter N. Gitlin
-------------------------
Walter N. Gitlin
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the
Federal Reserve System, at the close of business December 31,
1996, published in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin. . . . . . . . . . . . . . $ 6,024,605
Interest-bearing balances. . . . . . . . . . . . . 808,821
Securities:
Held-to-maturity securities. . . . . . . . . . . . 1,071,747
Available-for-sale securities. . . . . . . . . . . 3,105,207
Federal funds sold in domestic
offices of the bank: . . . . . . . . . . . . . . . 4,250,941
Loans and lease financing
receivables:
Loans and leases, net of unearned
income. . . . . . . . . . . . . . . . 31,962,915
LESS: Allowance for loan and
lease losses. . . . . . . . . . . . . 635,084
LESS: Allocated transfer risk
reserve . . . . . . . . . . . . . . . 429
Loans and leases, net of unearned
income, allowance, and reserve . . . . . . . . . 31,327,402
Assets held in trading accounts. . . . . . . . . . . 1,539,612
Premises and fixed assets (including
capitalized leases). . . . . . . . . . . . . . . . 692,317
Other real estate owned. . . . . . . . . . . . . . . 22,123
Investments in unconsolidated subsid-
iaries and associated companies. . . . . . . . . . 213,512
Customers' liability to this bank on
acceptances outstanding. . . . . . . . . . . . . . 985,297
Intangible assets. . . . . . . . . . . . . . . . . . 590,973
Other assets . . . . . . . . . . . . . . . . . . . . 1,487,903
-----------
Total assets . . . . . . . . . . . . . . . . . . . . $52,120,460
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
-----------
Deposits:
In domestic offices. . . . . . . . . . . . . . . . $25,929,642
Noninterest-bearing. . . . . . . . . . 11,245,050
Interest-bearing . . . . . . . . . . . 14,684,592
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . . . 12,852,809
Noninterest-bearing. . . . . . . . . . 552,203
Interest-bearing . . . . . . . . . . . 12,300,606
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased. . . . . . . . . . . . . . 1,360,877
Securities sold under agreements to
repurchase . . . . . . . . . . . . . . . . . . . 226,158
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . . 204,987
Trading liabilities. . . . . . . . . . . . . . . . . 1,437,445
Other borrowed money:
With original maturity of one year or less . . . . 2,312,556
With original maturity of more than
one year . . . . . . . . . . . . . . . . . . . . 20,766
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . . . 1,014,717
Subordinated notes and debentures. . . . . . . . . . 1,014,400
Other liabilities. . . . . . . . . . . . . . . . . . 1,721,291
-----------
Total liabilities. . . . . . . . . . . . . . . . . . 48,095,648
-----------
EQUITY CAPITAL
--------------
Common stock . . . . . . . . . . . . . . . . . . . . 942,284
Surplus. . . . . . . . . . . . . . . . . . . . . . . 731,319
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . . 2,354,095
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . 7,030
Cumulative foreign currency
translation adjustments. . . . . . . . . . . . . . (9,916)
-----------
Total equity capital . . . . . . . . . . . . . . . . 4,024,812
-----------
Total liabilities and equity capital . . . . . . . . $52,120,460
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
