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Exhibit 4(a)
TXU ELECTRIC COMPANY
(FORMERLY 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
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SIXTY-SECOND SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
FLOATING RATE SERIES C DUE JUNE 15, 2003
----------------------
DATED AS OF JULY 1, 2001
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THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
SIXTY-SECOND SUPPLEMENTAL INDENTURE
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INDENTURE, dated as of July 1, 2001, between TXU ELECTRIC COMPANY
(formerly Texas Utilities Electric Company), a corporation of the State of
Texas, whose address is Energy Plaza, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (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 said Texas Utilities Electric 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 Sixty-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............................................... ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇ 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
2
DESIGNATION DATED AS OF
----------- -----------
Seventeenth Supplemental Indenture........................................... October 1, 1987
Eighteenth Supplemental Indenture............................................ March 1, 1988
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
Fifty-fourth Supplemental Indenture.......................................... October 1, 1995
Fifty-fifth Supplemental Indenture........................................... March 1, 1996
Fifty-sixth Supplemental Indenture........................................... September 1, 1996
Fifty-seventh Supplemental Indenture......................................... February 1, 1997
Fifty-eighth Supplemental Indenture.......................................... July 1, 1997
Fifth-ninth Supplemental Indenture........................................... March 1, 1999
3
DESIGNATION DATED AS OF
----------- -----------
Sixtieth Supplemental Indenture.............................................. December 1, 2000
Sixty-first Supplemental Indenture........................................... February 1, 2001
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 June 30, 2001, 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 Amount Principal 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
Pollution Control Series C........................................ 70,000,000 None
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
Pollution Control Series E........................................ 100,000,000 None
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
Pollution Control Series F........................................ 55,000,000 None
Pollution Control Series G........................................ 12,000,000 None
Pollution Control Series H........................................ 112,000,000 None
Pollution Control Series I........................................ 100,000,000 None
4
Principal Amount Principal Amount
Series Issued Outstanding
------ ---------------- ----------------
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 None
10.44% Series due November 1, 2008 ............................... 150,000,000 None
Pollution Control Series J ....................................... $ 100,000,000 None
9 1/2% Series due August 1, 1999 ................................. 200,000,000 None
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 $ 69,200,000
Pollution Control Series K........................................ 50,000,000 None
Pollution Control Series L........................................ 40,000,000 None
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 None
7 7/8% Pollution Control Series due March 1, 2021 ................ 100,000,000 None
9 3/4% Series due May 1, 2021..................................... 300,000,000 127,747,000
Pollution Control Series M due June 1, 2021....................... 86,250,000 None
Pollution Control Series N due June 1, 2021....................... 57,500,000 None
Pollution Control Series O due June 1, 2021....................... 57,500,000 None
Pollution Control Series P due June 1, 2021 ...................... 115,000,000 None
8 1/8% Series due February 1, 2002 ............................... 150,000,000 150,000,000
8 7/8 % Series due February 1, 2022 .............................. 175,000,000 112,200,000
8 1/4% Series due April 1, 2004 .................................. 100,000,000 100,000,000
9% Series due April 1, 2022 ...................................... 100,000,000 None
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 None
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 None
7 3/8% Series due August 1, 2001 ................................. 150,000,000 145,000,000
8 1/2% Series due August 1, 2024 ................................. 175,000,000 115,400,000
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 None
8 3/4% Series due November 1, 2023 ............................... 200,000,000 102,550,000
6 1/2% Pollution Control Series due December 1, 2027 ............. 46,660,000 46,660,000
6 3/4% Series due March 1, 2003 .................................. 200,000,000 194,475,000
7 7/8% Series due March 1, 2023................................... 300,000,000 223,770,000
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 None
6 3/4% Series due April 1, 2003 .................................. 100,000,000 95,000,000
5
Principal Amount Principal Amount
Series Issued Outstanding
------ ---------------- ----------------
7 7/8% Series due April 1, 2024................................... 225,000,000 132,743,000
Pollution Control Series due June 1, 2023......................... 115,000,000 78,987,750
5 3/4% Series due July 1, 1998.................................... 150,000,000 None
6 3/4% Series due July 1, 2005.................................... 100,000,000 92,000,000
7 5/8% Series due July 1, 2025.................................... $ 250,000,000 $214,750,000
5 1/2% Series due October 1, 1998................................. 125,000,000 None
6 1/4% Series due October 1, 2004................................. 125,000,000 120,595,000
7 3/8% Series due October 1, 2025................................. 300,000,000 178,000,000
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 None
Pollution Control Series Q due May 1, 2029........................ 45,045,500 None
Pollution Control Series R due May 1, 2029 ....................... 45,045,500 None
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 None
Pollution Control Series V........................................ 136,108,250 None
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 60,000,000
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
Pollution Control Series AE....................................... 57,500,000 57,500,000
Pollution Control Series AF....................................... 36,000,750 36,000,750
Pollution Control Series AG....................................... 28,801,750 28,801,750
Pollution Control Series AH....................................... 33,079,750 33,079,250
Pollution Control Series AI....................................... 59,253,750 59,253,750
Pollution Control Series AJ....................................... 13,800,000 13,800,000
Pollution Control Series AK....................................... 250,163,335 None
Floating Rate Series A due December 20, 2002...................... 150,000,000 150,000,000
Floating Rate Series B due December 20, 2002...................... 425,000,000 425,000,000
Collateral Series A............................................... 3,839,650,000 None
which bonds are also hereinafter sometimes called bonds of the First through One
Hundred First Series, respectively; and
6
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 a 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
Sixty-second
Supplemental Indenture, and the terms of the bonds of the One Hundred Second
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
7
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 Sixtieth 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
8
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
Sixty-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 ▇▇▇▇▇ 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
Sixty-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
Sixty-second Supplemental Indenture being
9
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.
ONE HUNDRED SECOND SERIES OF BONDS
SECTION 1.1 There shall be a series of bonds designated "Floating Rate
Series C due June 15, 2003" (herein sometimes referred to as the One Hundred
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 One Hundred Second Series shall mature on June 15, 2003 and shall be
issued as fully registered bonds in denominations of One Hundred Thousand
Dollars and in any integral multiples of Ten Thousand Dollars in excess
thereof (the exercise of such option to be evidenced by the execution and
delivery thereof); they shall bear interest at the per annum interest rate
(Interest Rate) determined by the Calculation Agent on each Interest
Determination Date, as such terms are defined below, payable quarterly in
arrears on March 15, June 15, September 15 and December 15 of each year (each
an Interest Payment Date), commencing September 15, 2001; 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 One Hundred Second
Series shall be dated as in Section 2.03 of the Original Indenture provided.
The Interest Rate shall not exceed the maximum rate permitted by law.
The Calculation Agent for bonds of the One Hundred Second Series shall be
The Bank of New York, or its successor as Calculation Agent. At any time, the
Company may designate a successor Calculation Agent, who may be any person or
entity who is eligible to be a successor Trustee or co-trustee under the
Mortgage or who is independent as such term is defined in the Mortgage.
"Interest Determination Date" for each Interest Period for bonds of the
One Hundred Second Series shall be the second London Business Day immediately
preceding the first day of such Interest Period.
10
"Interest Period" for bonds of the One Hundred Second Series shall mean a
period commencing on an Interest Payment Date and ending on the calendar day
preceding the next succeeding Interest Payment Date; provided that the first
Interest Period shall commence on July 2, 2001.
"LIBOR" for any Interest Determination Date will be the rate for Three
Month Deposits, as that rate appears on Telerate Page 3750, or a successor
reporter of such rates selected by the Calculation Agent and acceptable to the
Company, at approximately 11:00 a.m., London time, on the Interest Determination
Date (Reported Rate); provided, however, that in certain circumstances described
below, LIBOR will be determined in an alternative manner.
"London Business Day" for bonds of the One Hundred Second Series shall
mean any day on which dealings in deposits in U.S. dollars are transacted, or,
with respect to any future date, are expected to be transacted, in the London
interbank market.
"Representative Amount" for purposes of calculating the Interest Rate for
bonds of the One Hundred Second Series shall mean an amount determined by the
Calculation Agent to be representative of single transactions at such time.
"Telerate Page 3750" means the display designated as Page 3750 on Bridge
Telerate, Inc. or any successor service for the purpose of displaying London
interbank rates of major banks for U.S. dollar deposits.
"Three Month Deposits" for purposes of calculating the Interest Rate for
bonds of the One Hundred Second Series shall mean deposits in U.S. dollars
having a maturity of three months for a period commencing on the second London
Business Day immediately following the Interest Determination Date.
The Interest Rate for bonds of the One Hundred Second Series for each
Interest Period will be equal to three month LIBOR on the Interest Determination
Date for that Interest Period plus .60%
If the following circumstances exist on any Interest Determination Date,
the Calculation Agent will determine LIBOR for the bonds of the One Hundred
Second Series as follows:
(A) In the event no Reported Rate appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on an
Interest Determination Date, the Calculation Agent will
request the principal London offices of each of four
major banks in the London interbank market selected by
the Calculation Agent (after consultation with the
Company) to provide a quotation of the rate at which
Three Month Deposits in Representative Amounts are
offered by it to prime banks in the London interbank
market, as of approximately 11:00 a.m., London time, on
that Interest Determination Date. If at least two rate
quotations are provided, LIBOR will be the arithmetic
mean of the rate quotations obtained by the Calculation
Agent.
11
(B) In the event no Reported Rate appears on Telerate Page
3750 and the Calculation Agent obtains fewer than two
rate quotations, LIBOR will be the arithmetic mean of
the rates quoted at approximately 11:00 a.m., New York
City time, on that Interest Determination Date, by three
major banks in New York City, selected by the
Calculation Agent (after consultation with the Company),
for Three Month Deposits in Representative Amounts to
leading European banks, commencing on the second London
Business Day immediately following that Interest
Determination Date; provided, however, that if fewer
than three banks selected by the Calculation Agent are
quoting those rates, LIBOR for the applicable Interest
Period will be the same as LIBOR in effect for the
immediately preceding Interest Period.
The determination of the Calculation Agent of the Interest Rate for a
particular Interest Period, absent willful default, bad faith or manifest error
will be binding and conclusive upon the registered owners of bonds of the One
Hundred Second Series, the Company and the Trustee.
Interest on the bonds of the One Hundred Second Series shall be calculated
by multiplying the actual number of days for which interest is payable in the
relevant Interest Period by the Interest Rate divided by 360. All dollar amounts
resulting from such calculation shall be rounded, if necessary, to the nearest
cent, with one-half cent rounded upward.
The Company shall cause the Calculation Agent to agree to notify the
Trustee of the Interest Rate for each Interest Period promptly upon the
determination of such Interest Rate.
Notwithstanding the foregoing, so long as there is no existing default in
the payment of interest on the bonds of the One Hundred Second Series, the
person in whose name any bond of the One Hundred Second Series is registered at
the close of business on any Record Date (as hereinafter defined) with respect
to any Interest Payment Date shall be entitled to receive the interest payable
on such Interest Payment Date. "Record Date" for bonds of the One Hundred Second
Series shall mean (a) the business day next preceding the corresponding Interest
Payment Date as long as the applicable bonds of the One Hundred Second Series
are held by a securities depository or its nominee and (b) the fifteenth
calendar day preceding the corresponding Interest Payment Date if the applicable
bonds of the One Hundred Second Series are not held by a securities depository
or its nominee.
The bonds of the One Hundred Second Series will be initially issued
pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), in global form registered in the name of Cede & Co. (as
nominee for The Depository Trust Company ("DTC"), New York, New York). The bonds
of the One Hundred Second Series in global form shall bear the depository legend
in substantially the form set forth in Exhibit A hereto. The bonds of the One
Hundred Second Series shall contain restrictions on transfer, substantially as
described in the form thereof set forth in Exhibit A hereto. Each bond of the
One Hundred Second Series, whether in a global form or in a
12
certificated form, shall bear the non-registration legend in substantially the
form set forth in such form, unless otherwise agreed by the Company, such
agreement to be confirmed in writing to the Trustee. Nothing in the Mortgage,
the bonds of the One Hundred Second Series or this certificate shall be
construed to require the Company to register any of the bonds of the One
Hundred Second Series under the Securities Act, unless otherwise expressly
agreed by the Company, confirmed in writing to the Trustee, or to make any
transfer of such bonds of the One Hundred Second Series in violation of
applicable law.
It is contemplated that beneficial interests in the bonds of the One
Hundred Second Series owned by qualified institutional buyers (as defined in
Rule 144A under the Securities Act)("QIBs") or sold to QIBs in reliance upon
Rule 144A under the Securities Act will be represented by one or more separate
certificates in global form registered in the name of Cede & Co., as registered
owner and as nominee for DTC; beneficial interests in the bonds of the One
Hundred Second Series sold to foreign purchasers pursuant to Regulation S under
the Securities Act will be evidenced by one or more separate certificates in
global form (each a "Regulation S Global Certificate") and will be registered in
the name of Cede & Co., as registered owner and as nominee for DTC for the
accounts of Euroclear and Cedel Bank; prior to the 40th day after the date of
initial issuance of the bonds of the One Hundred Second Series, beneficial
interests in a Regulation S Global Certificate may be held only through
Euroclear or Cedel Bank; bonds of the One Hundred Second Series acquired by
Institutional Accredited Investors (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) ("IAIs") and other eligible transferees, who are
not QIBs and who are not foreign purchasers pursuant to Regulation S under the
Securities Act, will be in certificated form. The Trustee, the Security
Registrar and the Company will have no responsibility or liability for any
aspect of transfers of beneficial interests in the bonds of the One Hundred
Second Series, any records of DTC of beneficial interests or any transactions
between DTC and its participants or between any such participants and any other
beneficial owners or for monitoring, supervising or reviewing of any thereof.
In connection with any transfer of bonds of the One Hundred Second Series,
the Trustee, the Security Registrar and the Company shall be under no duty to
inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificates and other information (in the forms
attached hereto as Exhibit A, for use in connection with the transfer of the
bonds of the One Hundred Second Series in certificated form, or Exhibit B, for
use in connection with the transfer of beneficial interests in one certificate
in global form to another certificate in global form or to a bond of the One
Hundred Second Series in certificated form, or otherwise) received from the
Holders and any transferees of any bonds of the One Hundred Second Series
regarding the validity, legality and due authorization of any such transfer, the
eligibility of the transferee to receive such bond of the One Hundred Second
Series and any other facts and circumstances related to such transfer.
Bonds of the One Hundred Second Series will have such other terms and
provisions as set forth in the form thereof, attached hereto as Exhibit A, and
shall be issued in substantially such form.
(I) Any interest on any bond of the One Hundred Second Series
which is payable but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called
13
"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 One Hundred Second 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 One Hundred Second 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
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 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 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 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 One Hundred
Second Series at such owner's 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 One Hundred Second 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 One Hundred Second 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.
14
Subject to the foregoing provisions of this Section, each bond of the One
Hundred Second 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) Bonds of the One Hundred Second Series shall not be
redeemable prior to December 15, 2001. On or after December 15, 2001, bonds of
the One Hundred Second Series shall be redeemable, at the option of the
Company, in whole but not in part on the 15th day of any March, June,
September or December 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, at a redemption price of 100% of the principal
amount of the bonds to be redeemed together with accrued interest to the date
fixed for redemption.
(III) At the option of the registered owner, any bonds of the One
Hundred 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 One Hundred Second 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 of New York, New York.
Upon any exchange or transfer of bonds of the One Hundred Second 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 or transfer of bonds of the One Hundred Second Series.
ARTICLE II.
MISCELLANEOUS PROVISIONS
SECTION 2.1 Subject to the amendments provided for in this
Sixty-second
Supplemental Indenture, the terms defined in the Original Indenture, as
heretofore supplemented, shall for all purposes of this
Sixty-second
Supplemental Indenture have the meanings specified in the Original Indenture,
as heretofore supplemented.
SECTION 2.2 The holders of bonds of the One Hundred Second 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 One Hundred Second
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
15
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 2.3 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
Sixty-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 Sixty-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 Sixty-second Supplemental Indenture.
SECTION 2.4 Whenever in this Sixty-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 Sixty-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 2.5 Nothing in this Sixty-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 Sixty-second Supplemental Indenture or any
covenant, condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements in this
Sixty-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 2.6 This Sixty-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.
16
IN WITNESS WHEREOF,
TXU 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 Vice Presidents, Assistant Vice
Presidents, Assistant Secretaries or Assistant Treasurers, all as of the day and
year first above written.
TXU ELECTRIC COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
Assistant Secretary
Executed, sealed and delivered by
TXU ELECTRIC COMPANY
in the presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
------------------------------
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
18
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS )
Before me, a Notary Public in and for said State, on this day personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇, 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
TXU
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 2nd day of July, 2001.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public, State of Texas
My Commission Expires February 26, ▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this day personally
appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 2nd day of July, 2001.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 2002
20
EXHIBIT A
[depository legend]
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
[non-registration legend]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE COMPANY, (2) IN A
TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), OR
(5) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND A CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. AN INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT
WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF, OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (o)(2) OF RULE 902 UNDER, REGULATION S UNDER THE
SECURITIES ACT."
[FORM OF SERIES C BOND]
First Mortgage Bond,
Floating Rate Series C due June 15, 2003
CUSIP No._____________
No.____________
TXU ELECTRIC COMPANY, a corporation of the State of Texas (hereinafter
called the Company), for value received, hereby promises to pay to
or registered assigns, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York,
_________________________ DOLLARS
on June 15, 2003, 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, and to pay to
the registered owner hereof interest thereon, from July 2, 2001, if the date of
this bond is prior to September 15, 2001, or if the date of this bond is on or
after September 15, 2001, from the September 15, June 15, December 15, or March
15 immediately preceding the date of this bond to which interest has been paid
(unless the date hereof is an interest payment date to which interest has been
paid, in which case from the date hereof), at a rate per annum which will be
determined quarterly as provided in the Sixty-second Supplemental Indenture
dated as of July 1, 2001, hereinafter referred to, such interest to be payable
on March 15, June 15, September 15 and December 15 in each year (each an
interest payment date), commencing on the interest payment date next succeeding
the date of authentication of this bond, in each case in like coin or currency
at such office or agency on the interest payment date, until the Company's
obligation with respect to the payment of such principal shall have been
discharged. If the Company shall default in the payment of interest due on any
interest payment date, then interest shall be
payable from the next preceding interest payment date to which interest has
been paid, or, if no such interest has been paid on the bonds, from July 2,
2001.
The interest so payable on any interest payment date will, subject to
certain exceptions provided in the Mortgage hereinafter referred to, be paid to
the person in whose name this bond is registered at the close of business on (1)
the business day next preceding such interest payment date if this bond is in
book-entry only form or (2) the fifteenth calendar day preceding such interest
payment date as the case may be, if this bond is in certificated form
(hereinafter called record dates), provided that, interest payable on the
maturity date will be payable to the person to whom the principal hereof shall
be payable. At the option of the Company, interest may be payable by check
mailed on or prior to such interest payment date to the address of the person
entitled thereto as such address shall appear on the register of the Company or
by wire transfer to an account designated by the persons entitled thereto,
provided that so long as this bond is in book-entry only form, all payments of
principal and interest on this bond will be made in immediately available funds.
The Company shall not be required to make transfers or exchanges of this bond
while this bond is in certificated form for a period of fifteen days next
preceding an interest payment date.
Each Holder shall be deemed to understand that the offer and sale of the
Securities of this series have not been registered under the Securities Act and
that the Securities of this series may not be offered or sold except as
permitted in the following sentence. Each Holder shall be deemed to agree, on
its own behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that if such Holder sells any Securities of this series,
such Holder will do so only (A) to the Company, (B) to a person whom it
reasonably believes is a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, (C) to an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) that, prior to such transfer, furnishes to the
Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Securities of this series, (D)
in an offshore transaction in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), or (F) pursuant to an effective
registration statement under the Securities Act, and each Holder is further
deemed to agree to provide to any person purchasing any of the Securities of
this series from it a notice advising such purchaser that resales of the
Securities of this series are restricted as stated herein.
Each Holder shall be deemed to understand that, on any proposed resale of
any Securities of this series pursuant to the exemption from registration under
Rule 144 under the Securities Act, any Holder making any such proposed resale
will be required to furnish to the Trustee and Company such certifications,
legal opinions and other information as the Trustee and Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions in the form annexed hereto.
This bond is one of an issue of bonds of the Company issuable in series
and is one of a series known as its First Mortgage Bonds, Floating Rate Series C
due June 15, 2003, all bonds of all series issued and to be issued under and
equally secured by a Mortgage and Deed of Trust (herein, together
with any indenture supplemental thereto, including the Sixty-second
Supplemental Indenture dated as of July 1, 2001, called the Mortgage), dated
as of December 1, 1983, executed by the Company to Irving Trust Company (now
The Bank of New York), Trustee. Reference is made to the Mortgage for a
description of the property mortgaged and pledged, the nature and extent of
the security, the rights of the holders of the bonds and of the Trustee in
respect thereof, the duties and immunities of the Trustee and the terms and
conditions upon which the bonds are and are to be secured, the circumstances
under which additional bonds may be issued and the definition of certain terms
hereinafter used. With the consent of the Company and to the extent permitted
by and as provided in the Mortgage, the rights and obligations of the Company
and/or the rights of the holders of the bonds and/or coupons and/or the terms
and provisions of the Mortgage may be modified or altered by such affirmative
vote or votes of the holders of bonds then Outstanding as are specified in the
Mortgage; provided that, without the consent of the holder hereof, no such
modification or alteration shall, among other things, impair or affect the
right of the holder to receive payment of the principal of this bond, on or
after the due date expressed herein, or permit the creation of any lien equal
or prior to the Lien of the Mortgage or deprive the holder of the benefit of a
lien on the Mortgaged and Pledged Property or impair or affect the right to
receive payment of interest on this bond on or after the respective due dates
expressed herein, without the consent of the holder of the right to such
interest.
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of a Default as in the
Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the registered
owner hereof in person, or by such owner's duly authorized attorney, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, New York, upon surrender of this bond, and upon payment, if the Company
shall require it, of the transfer charges provided for in the Mortgage, and
thereupon, a new fully registered bond of the same series for a like principal
amount will be issued to the transferee in exchange herefor as provided in the
Mortgage. The Company and the Trustee may deem and treat the person in whose
name this bond is registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes and neither the Company nor the
Trustee shall be affected by any notice to the contrary.
In the manner prescribed in the Mortgage, any bonds of this 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, together with a written
instrument of transfer, wherever required by the Company, duly executed by the
registered owner or by such owner's duly authorized attorney, are exchangeable
for a like aggregate principal amount of fully registered bonds of the same
series of other authorized denominations.
The bonds of this series shall be redeemable as provided in the
Sixty-second Supplemental Indenture, dated as of July 1, 2001.
As provided in the Mortgage, the Company shall not be required to make
transfers or exchanges of bonds of any series for a period of fifteen days next
preceding any interest payment
date for bonds of said series, or next preceding any designation of bonds of
said series to be redeemed, and the Company shall not be required to make
transfers or exchanges of any bonds designated in whole or in part for
redemption.
No recourse shall be had for the payment of the principal of or interest
on this bond against any incorporator or any past, present or future subscriber
to the capital stock, stockholder, officer or director of the Company or of any
predecessor or successor corporation, as such, either directly or through the
Company or any predecessor or successor corporation, under any rule of law,
statute or constitution or by the enforcement of any assessment or otherwise,
all such liability of incorporators, subscribers, stockholders, officers and
directors being released by the holder or owner hereof by the acceptance of this
bond and being likewise waived and released by the terms of the Mortgage.
This bond shall not become obligatory until The Bank of New York, the
Trustee under the Mortgage, or its successor thereunder, shall have signed the
form of authentication certificate endorsed hereon.
This bond 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.
IN WITNESS WHEREOF,
TXU ELECTRIC COMPANY has caused this bond to be signed
in its corporate name by its Chairman of the Board, Chief Executive, President
or one of its Vice Presidents by such officer's signature or a facsimile
thereof, and its corporate seal to be impressed or imprinted hereon and attested
by its Secretary or one of its Assistant Secretaries by such officer's signature
or a facsimile thereof.
TXU ELECTRIC COMPANY
By
--------------------------------------
Vice President
ATTEST:
--------------------------------
Assistant Secretary
TRUSTEE'S AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein designated, described
or provided for in the within-mentioned Mortgage.
DATED:
-------------------
THE BANK OF NEW YORK,
Trustee
By
--------------------------------------
Authorized Officer
[CERTIFICATE OF TRANSFER]
FIRST MORTGAGE BONDS FLOATING RATE SERIES C DUE JUNE 15, 2003
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten.
the within Security of the Company and does hereby irrevocably constitute and
appoint ________________________________________________________________________
to transfer the said Security on the books of the within-named Company, with
full power of substitution in the premises.
The undersigned certifies that said Security is being resold, pledged or
otherwise transferred as follows: (check one)
|_| to the Company;
|_| to a Person whom the undersigned reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act") purchasing for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or other transfer is being made in
reliance on Rule 144A;
|_| in an offshore transaction in accordance with Rule 904 of Regulation S
under the Securities Act;
|_| to an institution that is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is acquiring this
Security for investment purposes and not for distribution; (attach a copy
of an Accredited Investor Certificate in the form annexed signed by an
authorized officer of the transferee)
|_| as otherwise permitted by the non-registration legend appearing on
this Security; or
|_| as otherwise agreed by the Company, confirmed in writing to the
Trustee, as follows: [describe]
Dated: Signature:
----------------------- ---------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement, or
any change whatever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirement of the registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
[FORM OF ACCREDITED INVESTOR CERTIFICATE]
[Transferor Name and Address]
Ladies and Gentlemen:
In connection with our proposed purchase of First Mortgage Bonds Floating Rate
Series C due June 15, 2003 (the "Bonds") issued by
TXU Electric Company
("Issuer"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum") relating to the Bonds and such other information as we deem
necessary in order to make our investment decision. We acknowledge that we
have read and agree to the matters stated under the caption NOTICE TO
INVESTORS in such Offering Memorandum, and the restrictions on duplication
or circulation of, or disclosure relating to, such Offering Memorandum.
2. We understand that any subsequent transfer of the Bonds is
subject to certain restrictions and conditions set forth in the Indenture
relating to Bonds (the "Indenture") and that any subsequent transfer of
the Bonds is subject to certain restrictions and conditions set forth
under NOTICE TO INVESTORS in the Offering Memorandum and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the
Bonds except in compliance with such restrictions and conditions and the
Securities Act of 1933, as amended ("Securities Act").
3. We understand that the offer and sale of the Bonds have not been
registered under the Securities Act, and that the Bonds may not be offered
or sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we sell any Bonds, we will do so only (A) to
the Company, (B) to a person whom we reasonably believe is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes to the Trustee (as defined in the Indenture) a signed letter
containing certain representations and agreements relating to the
restrictions on transfer of the Bonds (substantially in the form of this
letter), (D) in an offshore transaction in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available),
or (F) in accordance with another applicable exemption from the
registration requirements of the Securities Act, and we further agree to
provide to any person purchasing any of the Bonds from us a notice
advising such purchaser that resales of the Bonds are restricted as stated
herein.
4. We understand that, on any proposed resale of any Senior Note, we
will be required to furnish to the Trustee and Issuer such certifications,
legal opinions and other information as the Trustee and Issuer may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Bonds purchased by
us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Bonds, and we and any accounts for which are acting are each able to bear
the economic risk of our or its investment.
6. We are acquiring the Bonds purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You, the Issuer and the Trustee are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
---------------------------
Name:
Title:
EXHIBIT B
[CERTIFICATE OF TRANSFER]
TXU ELECTRIC COMPANY
FIRST MORTGAGE BONDS FLOATING RATE SERIES C DUE JUNE 15, 2003
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
Name and address of assignee must be printed or typewritten.
$
--------------------------------------------------------------------------------
principal amount of beneficial interest in the referenced Security of the
Company and does hereby irrevocably constitute and appoint
to transfer the said beneficial interest in such Security, with full power of
substitution in the premises.
The undersigned certifies that said beneficial interest in said Security
is being resold, pledged or otherwise transferred as follows: (check one)
|_| to the Company;
|_| to a Person whom the undersigned reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the Securities
Act of 1933, as amended (the "Securities Act") purchasing for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or other transfer is being made in
reliance on Rule 144A;
|_| in an offshore transaction in accordance with Rule 904 of Regulation S
under the Securities Act;
|_| to an institution that is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is acquiring this
Security for investment purposes and not for distribution; (attach a copy
of an Accredited Investor Certificate in the form annexed signed by an
authorized officer of the transferee)
|_| as otherwise permitted by the non-registration legend appearing on
this Security; or
|_| as otherwise agreed by the Company, confirmed in writing to the
Trustee, as follows: [describe]
Dated: Signature:
---------------------- -----------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement, or
any change whatever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirement of the registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the registrar in
addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
[FORM OF ACCREDITED INVESTOR CERTIFICATE]
[Transferor Name and Address]
Ladies and Gentlemen:
In connection with our proposed purchase of First Mortgage Bonds Floating Rate
Series C due June 15, 2003 (the "Bonds") issued by TXU Electric Company
("Issuer"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum") relating to the Bonds and such other information as we deem
necessary in order to make our investment decision. We acknowledge that we
have read and agree to the matters stated under the caption NOTICE TO
INVESTORS in such Offering Memorandum, and the restrictions on duplication
or circulation of, or disclosure relating to, such Offering Memorandum.
2. We understand that any subsequent transfer of the Bonds is
subject to certain restrictions and conditions set forth in the Indenture
relating to Bonds (the "Indenture") and that any subsequent transfer of
the Bonds is subject to certain restrictions and conditions set forth
under NOTICE TO INVESTORS in the Offering Memorandum and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the
Bonds except in compliance with such restrictions and conditions and the
Securities Act of 1933, as amended ("Securities Act").
3. We understand that the offer and sale of the Bonds have not been
registered under the Securities Act, and that the Bonds may not be offered
or sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we sell any Bonds, we will do so only (A) to
the Company, (B) to a person whom we reasonably believe is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes to the Trustee (as defined in the Indenture) a signed letter
containing certain representations and agreements relating to the
restrictions on transfer of the Bonds (substantially in the form of this
letter), (D) in an offshore transaction in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available),
or (F) in accordance with another applicable exemption from the
registration requirements of the Securities Act, and we further agree to
provide to any person purchasing any of the Bonds from us a notice
advising such purchaser that resales of the Bonds are restricted as stated
herein.
4. We understand that, on any proposed resale of any Bonds, we will
be required to furnish to the Trustee and Issuer such certifications,
legal opinions and other information as the
Trustee and Issuer may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand that
the Bonds purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Bonds, and we and any accounts for which are acting are each able to bear
the economic risk of our or its investment.
6. We are acquiring the Bonds purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You, the Issuer and the Trustee are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
----------------------------
Name:
Title: