EXHIBIT 4(G)
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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
-------------------
SIXTIETH SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS,
FLOATING RATE SERIES A DUE DECEMBER 20, 2002
AND
FLOATING RATE SERIES B DUE DECEMBER 20, 2002
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DATED AS OF DECEMBER 1, 2000
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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
SIXTIETH SUPPLEMENTAL INDENTURE
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INDENTURE, dated as of December 1, 2000, 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 Sixtieth 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 DATES 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
Seventeenth Supplemental Indenture....................... October 1, 1987
2
DESIGNATION DATES AS OF
----------- -----------
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
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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 November 30, 2000, 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
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
4
Principal Amount Principal Amount
Series Issued Outstanding
------ ----------------- ----------------
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 $ 99,200,000
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 .... 100,000,000 100,000,000
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
7 7/8% Series due April 1, 2024....................... 225,000,000 132,743,000
Pollution Control Series due June 1, 2023............. 115,000,000 102,850,250
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
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Principal Amount Principal Amount
Series Issued Outstanding
------ ----------------- ----------------
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 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 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 .................. 201,150,000 134, 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
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........................... 250,163,335 127,126,750
which bonds are also hereinafter sometimes called bonds of the First through
Ninety-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
6
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 Sixtieth
Supplemental Indenture, and the terms of the bonds of the Ninety-ninth and One
hundredth 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 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
7
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 Sixtieth
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,
8
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 Sixtieth
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
Sixtieth 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:
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ARTICLE I.
NINETY-NINTH SERIES OF BONDS
SECTION 1.1 There shall be a series of bonds designated "Floating Rate
Series A due December 20, 2002" (herein sometimes referred to as the
Ninety-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
Ninety-ninth Series shall mature on December 20, 2000 and 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); 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 on March 20, June 20, September 20 and December 20 of
each year (each an Interest Payment Date), commencing March 20, 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 Ninety-ninth
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 Ninety-ninth 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
Ninety-ninth Series shall be the second London Business Day immediately
preceding the first day of such Interest Period.
"Interest Period" for bonds of the Ninety-ninth 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 the date of first authentication of bonds of the
Ninety-ninth Series.
"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 Ninety-ninth 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 Ninety-ninth Series shall mean an amount determined by the
Calculation Agent to be representative of single transactions at such time.
10
"Telerate Page 3750" means the display designated as Page 3750 on Bridge
Telerate 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 Ninety-ninth 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 Ninety-ninth Series for each Interest
Period will be equal to LIBOR on the Interest Determination Date for that
Interest Period plus .15%
If the following circumstances exist on any Interest Determination Date,
the Calculation Agent will determine LIBOR for the bonds of the Ninety-ninth
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.
(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
Ninety-ninth Series, the Company and the Trustee.
11
Interest on the bonds of the Ninety-ninth 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 Ninety-ninth Series, the person in
whose name any bond of the Ninety-ninth 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 Ninety-ninth Series shall
mean (a) the business day next preceding the corresponding Interest Payment Date
as long as the bonds of the Ninety-ninth Series are held by a securities
depository or its nominee and (b) the fifteenth calendar day preceding the
corresponding Interest Payment Date if the bonds of the Ninety-ninth Series are
not held by a securities depository or its nominee.
(I) To the extent permitted by law and so long as Ambac Assurance
Corporation (Ambac) is in compliance with its obligations under its Financial
Guaranty Insurance Policy No. FG0495BE (Policy) and is not subject to any
bankruptcy, insolvency or similar proceedings:
(a) notwithstanding any other provision of the Mortgage, Ambac shall be
entitled to control and direct the enforcement of all rights and remedies with
respect to the bonds of the Ninety-ninth Series (including but not limited to
any right to accelerate bonds of the Ninety-ninth Series and any right to vote
for approval of any plan of reorganization or liquidation) to the same extent as
if it were the holder of the bonds of the Ninety-ninth Series;
(b) no consent of any holder of bonds of the Ninety-ninth Series to any
amendment of the Mortgage that would adversely affect Ambac shall be effective
without the prior written consent of Ambac;
(c) no consent of any holder of bonds of the Ninety-ninth Series to any
amendment of bonds of the Ninety-ninth Series or this Article I shall be
effective without the prior written consent of Ambac;
(d) no vote or consent of any holder of bonds of the Ninety-ninth Series
to the removal of the Trustee or the selection and appointment of any successor
trustee under the Mortgage shall be effective without the prior written consent
of Ambac; and
(e) in the case of any action under the Mortgage, not described above in
this paragraph (I), which requires the consent of the holders of bonds of the
Ninety-ninth Series, no initiation or approval of such action by the holders of
bonds of the Ninety-ninth Series shall be effective without the prior written
consent of Ambac.
(II) Notwithstanding anything herein to the contrary, in the event
that the principal and/or interest due on any bond of the Ninety-ninth Series
shall be paid by Ambac pursuant to the Policy, such bond shall remain
12
Outstanding for all purposes, not be defeased or otherwise satisfied and not be
considered paid by the Company, and the assignment and pledge of the trust
estate and all covenants, agreements and other obligations of the Company to the
holders of bonds of the Ninety-ninth Series shall continue to exist and shall
run to the benefit of Ambac, and Ambac shall be subrogated to the rights of the
registered owners of such bonds; and
(III) Notwithstanding any other provision of this Sixtieth
Supplemental Indenture, in determining whether the rights of the holders of
bonds of the Ninety-ninth Series will be adversely affected by any action taken
pursuant to the terms and provisions of this Sixtieth Supplemental Indenture,
the Trustee shall consider the effect on the holders of bonds of the
Ninety-ninth Series as if there were no Policy.
(IV) The Company hereby covenants to comply with the Insurance
Agreement between the Company and Ambac, dated as of December 20, 2000 relating
to the bonds of the Ninety-ninth Series and to make payments when due
thereunder.
(V) So long as the Policy is in full force and effect the Trustee
hereby agrees to comply with the following procedures for payments under the
Policy:
(a) At least one (1) business day prior to all Interest Payment Dates the
Trustee will determine whether there will be sufficient funds to pay the
principal of or interest on the bonds of the Ninety-ninth Series on such
Interest Payment Date. If the Trustee determines that there will be insufficient
funds, the Trustee shall so notify Ambac. Such notice shall specify the amount
of the anticipated deficiency, the bonds of the Ninety-ninth Series to which
such deficiency is applicable and whether such bonds of the Ninety-ninth Series
will be deficient as to principal or interest, or both. If the Trustee has not
so notified Ambac at least one business (1) day prior to an Interest Payment
Date, Ambac will make payments of principal or interest due on the bonds of the
Ninety-ninth Series on or before the first (1st) business day next following the
date on which Ambac shall have received notice of nonpayment from the Trustee.
(b) The Trustee shall, after giving notice to Ambac as provided in (a)
above, make available to Ambac and, at Ambac's direction, to the United States
Trust Company of New York, as insurance trustee for Ambac or any successor
insurance trustee (herein referred to as the "Insurance Trustee") for inspection
the registration books of the Company maintained by the Trustee with respect to
the bonds of the Ninety-ninth Series.
(c) The Trustee shall, after giving notice to Ambac as provided in (a)
above, provide Ambac and the Insurance Trustee with a list of registered owners
of the bonds of the Ninety-ninth Series entitled to receive principal or
interest payments from Ambac under the terms of the Policy, and shall make
arrangements with the Insurance Trustee (i) to mail checks or drafts to the
registered owners of bonds of the Ninety-ninth Series entitled to receive full
or partial interest payments from Ambac and (ii) to pay principal upon the bonds
of the Ninety-ninth Series surrendered to the Insurance Trustee by the
registered owners of such bonds entitled to receive full or partial principal
payments from Ambac.
(d) The Trustee shall, at the time it provides notice to Ambac pursuant to
13
(a) above, notify the registered owners of bonds of the Ninety-ninth Series
entitled to receive the payment of principal of or interest thereon from Ambac
(i) as to the fact of such entitlement, (ii) that Ambac will remit to them all
or a part of the interest payments next coming due upon proof of such registered
owner's entitlement to interest payments and delivery to the Insurance Trustee,
in form satisfactory to the Insurance Trustee, of an appropriate assignment of
the registered owner's right to payment, (iii) that should they be entitled to
receive full payment of principal from Ambac, they must surrender their bonds of
the Ninety-ninth Series (along with an appropriate instrument of assignment in
form satisfactory to the Insurance Trustee to permit ownership of such bonds of
the Ninety-ninth Series to be registered in the name of Ambac) for payment to
the Insurance Trustee, and not the Trustee, and (iv) that should they be
entitled to receive partial payment of principal from Ambac, they must surrender
their bonds of the Ninety-ninth Series for payment thereon first to the Trustee
who shall note on such bonds of the Ninety-ninth Series the portion of the
principal paid by the Trustee, and then, along with an appropriate instrument of
assignment in form satisfactory to the Insurance Trustee, to the Insurance
Trustee, which will then pay the unpaid portion of principal.
(e) In the event that the Trustee has notice that any payment of principal
of or interest on a bond of the Ninety-ninth Series which has become Due for
Payment (as defined in the Policy) and which has been made to a holder of such
bond of the Ninety-ninth Series by or on behalf of the Company has been deemed a
preferential transfer and theretofore recovered from its registered owner
pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in
accordance with the final, nonappealable order of a court having competent
jurisdiction, the Trustee shall, at the time Ambac is notified pursuant to (a)
above, notify all registered owners that in the event that any registered
owner's payment is so recovered, such registered owner will be entitled to
payment from Ambac to the extent of such recovery if sufficient funds are not
otherwise available, and the Trustee shall furnish to Ambac its records
evidencing the payments of principal of and interest on the bonds of the
Ninety-ninth Series which have been made by the Trustee, and subsequently
recovered from registered owners and the dates on which such payments were made.
(f) In addition to those rights granted Ambac under this Sixtieth
Supplemental Indenture, Ambac shall, to the extent it makes payment of principal
of or interest on bonds of the Ninety-ninth Series, become subrogated to the
rights of the recipients of such payments in accordance with the terms of the
Policy, and to evidence such subrogation (i) in the case of subrogation as to
claims for past due interest, the Trustee shall note Ambac's rights as subrogee
on the registration books of the Company maintained by the Trustee upon receipt
from Ambac of proof of the payment of interest thereon to the registered owners
of the bonds of the Ninety-ninth Series, and (ii) in the case of subrogation as
to claims for past due principal, the Trustee shall note Ambac's rights as
subrogee on the registration books of the Company maintained by the Trustee upon
surrender of bonds of the Ninety-ninth Series by the Insurance Trustee together
with proof of the payment of principal thereof.
(VI) So long as Ambac is in compliance with its obligations under the
Policy, Ambac will be entitled to receive any resignation notices from the
Trustee.
(VII) While the Policy is in effect, the Company shall furnish to
Ambac, to the attention of the Surveillance Department:
(a) as soon as practicable after the filing thereof, a copy of any
14
financial statement of the Company and a copy of any audit and annual report of
the Company;
(b) such additional information it may reasonably request; and
(c) a copy of any notice to be given to the registered owners of the bonds
of the Ninety-ninth Series, including, without limitation, notice of any
redemption of or defeasance of bonds of the Ninety-ninth Series, and any
certificate rendered pursuant to this Sixtieth Supplemental Indenture relating
to the security for the bonds of the Ninety-ninth Series.
While the Policy is in effect, the Company shall notify the Office of
General Counsel of Ambac as follows:
(a) the Company will notify Ambac of any failure of the Company to provide
relevant notices or certificates; and
(b) notwithstanding any other provision of this Sixtieth Supplemental
Indenture, the Company shall immediately notify Ambac if at any time there are
insufficient moneys to make any payments of principal and/or interest as
required with respect to bonds of the Ninety-ninth Series and immediately upon
the occurrence of any Default under the Mortgage.
(VIII) Any interest on any bond of the Ninety-ninth 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 Ninety-ninth 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 Ninety-ninth 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
15
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each registered owner of a bond of the Ninety-ninth 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
Ninety-ninth 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 Ninety-ninth 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.
If the Company, or another person on behalf of the Company, makes payment
of Defaulted Interest in respect of an interest payment that was made to the
holders of bonds of the Ninety-ninth Series by Ambac under the Policy due to the
failure of the Company to pay such interest as due on the Interest Payment Date,
then such Defaulted Interest shall be paid to Ambac notwithstanding the
provisions of this paragraph VIII.
Subject to the foregoing provisions of this Section, each bond of the
Ninety-ninth 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.
(IX) To the extent that the paragraphs (I) through (VIII) above confer
upon Ambac any right, remedy or claim under this Sixtieth Supplemental
Indenture, Ambac is hereby explicitly recognized as being a third-party
beneficiary under this Sixtieth Supplemental Indenture with respect to such
rights or remedies granted by such paragraphs (I) through (VIII).
(X) Bonds of the Ninety-ninth Series shall not be redeemable prior to
June 20, 2001. On or after June 20, 2001, bonds of the Ninety-ninth Series shall
be redeemable, at the option of the Company, in whole but not in part on the
20th day of any calendar month 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.
16
(XI) At the option of the registered owner, any bonds of the
Ninety-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 Ninety-ninth 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 Ninety-ninth 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 Ninety-ninth Series.
ARTICLE II.
ONE HUNDREDTH SERIES OF BONDS
SECTION 2.1 There shall be a series of bonds designated "Floating Rate
Series B due December 20, 2002" (herein sometimes referred to as the One
hundredth 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
hundredth Series shall mature on December 20, 2002 and 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); 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 on March 20, June 20, September 20 and December 20 of each
year (each an Interest Payment Date), commencing March 20, 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 hundredth Series
shall be dated as in Section 2.03 of the Original Indenture provided.
The Calculation Agent for bonds of the One hundredth 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
hundredth Series shall be the second London Business Day immediately preceding
the first day of such Interest Period.
"Interest Period" for bonds of the One hundredth Series shall mean a period
17
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 the date of first authentication of bonds of the One
hundredth Series.
"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 hundredth 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 hundredth 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 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 hundredth 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 hundredth Series for each Interest
Period will be equal to LIBOR on the Interest Determination Date for that
Interest Period plus .75%.
If the following circumstances exist on any Interest Determination Date,
the Calculation Agent will determine LIBOR for the bonds of the One hundredth
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.
18
(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
Ninety-ninth Series, the Company and the Trustee.
Interest on the bonds of the One hundredth 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 hundredth Series, the person in
whose name any bond of the One hundredth 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 hundredth Series shall
mean (a) the business day next preceding the corresponding Interest Payment Date
as long as the bonds of the One hundredth Series are held by a securities
depository and the fifteenth calendar day preceding the corresponding Interest
Payment Date if the bonds of the One hundredth Series are not held by a
securities depository or its nominee.
(I) Any interest on any bond of the One hundredth 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 One hundredth 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
19
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 hundredth 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 hundredth
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 hundredth 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 hundredth 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 One
hundredth 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 hundredth Series shall not be redeemable prior
to June 20, 2001. On or after June 20, 2001, bonds of the One hundredth Series
shall be redeemable, at the option of the Company, in whole but not in part, on
20
the 20th day of any calendar month 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
hundredth 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 hundredth 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 hundredth 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 hundredth Series.
ARTICLE III.
MISCELLANEOUS PROVISIONS
SECTION 3.1 Subject to the amendments provided for in this Sixtieth
Supplemental Indenture, the terms defined in the Original Indenture, as
heretofore supplemented, shall for all purposes of this Sixtieth Supplemental
Indenture have the meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 3.2 The holders of bonds of the Ninety-ninth and One hundredth
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 Ninety-ninth and
One hundredth 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 3.3 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 Sixtieth 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
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of this Sixtieth 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 Sixtieth Supplemental Indenture.
SECTION 3.4 Whenever in this Sixtieth 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 Sixtieth 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 3.5 Except as provided in paragraphs (I) through (IX) of Article I
hereof with respect to certain rights and remedies conferred upon Ambac, nothing
in this Sixtieth 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 Sixtieth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Sixtieth 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 3.6 This Sixtieth 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.
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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 Assistant Vice Presidents, Assistant
Secretaries or Assistant Treasurers, all as of the day and year first above
written.
TXU ELECTRIC COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
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Assistant Secretary
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THE BANK OF NEW YORK,
Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
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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 18th day of December, 2000.
/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 19th day of December, 2000.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate filed in New York County
Commission Expires May 16, 2002
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