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EXHIBIT 4(b)
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__________________________________________________________________________
SUPPLEMENTAL INDENTURE
DATED ________ __, 19__
____________________
WEST TEXAS UTILITIES COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
AND
J. BARTOLINI
as Trustees
____________________
(SUPPLEMENTAL TO THE INDENTURE DATED AUGUST 1, 1943,
EXECUTED BY WEST TEXAS UTILITIES COMPANY
TO HARRIS TRUST AND SAVINGS BANK
AND HAROLD ECKHART, AS TRUSTEES)
____________________
PROVIDING FOR
FIRST MORTGAGE BONDS, SERIES __, ______% DUE ___________ __, ____
__________________________________________________________________________
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY
A UTILITY AND CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS
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THIS SUPPLEMENTAL INDENTURE, dated _________ __, 199_, made and entered into
by and between WEST TEXAS UTILITIES COMPANY, a corporation organized and
existing under the laws of the State of Texas (herein commonly referred
to as the "Company"), and HARRIS TRUST AND SAVINGS BANK, a corporation
organized and existing under the laws of the State of Illinois and
having its principal office or place of business in the City of Chicago,
State of Illinois, (hereinafter sometimes referred to as the "Trustee"),
and J. BARTOLINI, of the City of Chicago, State of Illinois (successor
co-Trustee to J. L. SPRENG, resigned), as Trustees under the Indenture
dated August 1, 1943, as amended by the Supplemental Indentures dated,
respectively, March 1, 1948, November 1, 1951, April 1, 1955, January 1,
1958, February 1, 1961, January 1, 1969, July 1, 1973, May 1, 1979,
November 15, 1981, November 1, 1983, April 15, 1985, August 1, 1985,
May 1, 1986, December 1, 1989, June 1, 1992, October 1, 1992, February
1, 1994 and March 1, 1995, heretofore executed and delivered by the
Company to the Trustees under said Indenture dated August 1, 1943; said
Indenture, as so amended, being hereinafter sometimes referred to as the
"Indenture"; and said Harris Trust and Savings Bank and J. Bartolini
being hereinafter sometimes referred to as the "Trustees" or the
"Trustees under the Indenture";
WITNESSETH:
WHEREAS, the Company, by resolution duly adopted by its Board of
Directors, has determined forthwith to issue an additional series of bonds to
be secured by the Indenture, as hereby modified, and to be known and
designated as First Mortgage Bonds, Series _ (hereinafter sometimes referred
to as the "bonds of Series _" or the "bonds of said series") and has duly
authorized the execution and delivery of this supplemental indenture for the
purposes hereinafter set forth; and the Company has requested, and hereby
requests, the Trustees to enter into and join with the Company in the
execution and delivery of this supplemental indenture; and
WHEREAS, on or subsequent to the date of the last Supplemental
Indenture, the Company has constructed or acquired certain additional
properties which are subject in any event to the lien and effect of the
Indenture; and
WHEREAS, the Company desires, in accordance with the provisions of
Article I, Section 6(e) of Article II and Article XVI of the Indenture, to
execute this supplemental indenture for the purpose of (i) specifically
conveying to the Trustees, upon the trusts and for the purposes of the
Indenture, as hereby amended, all such additional properties so constructed or
acquired by the Company and now owned by it, except property of the character
of that expressly excepted and excluded from the lien of the Indenture, (ii)
creating the bonds of Series _, and (iii) modifying or amending the Indenture
in the particulars and to the extent hereinafter in this supplemental
indenture specifically provided; and
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WHEREAS, each of the bonds of Series _ is to be substantially in the
following form:
(Form of face of bond of Series __)
No. $
WEST TEXAS UTILITIES COMPANY
First Mortgage Bond, Series ____
_____% Due _______________, _______
West Texas Utilities Company, a Texas corporation (hereinafter referred
to as the "Company"), for value received, hereby promises to pay to
________________ or registered assigns, the principal sum of $____________
Dollars on the _____ day of __________ __, ____, and to pay to the registered
owner interest on said sum from the date hereof at the rate of ______ per
centum per annum, payable half-yearly on the first day of _______ and the
first day of ________ in each year, commencing __________ __, 199_, until said
principal sum is paid. Both the principal of and the interest on this bond
shall be payable at the principal office or agency of the Company in the City
of New York, State of New York, in any coin or currency of the United States
of America which at the time of payment is legal tender for public and private
debts provided that, at the option of the Company, payment of interest may be
made by check mailed to the address of the person entitled thereto as shown on
the registration books of the Trustee.
_________________________
The provisions of this bond are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
_________________________
This bond shall not be valid or become obligatory for any purpose unless
and until it shall have been duly authenticated by the execution by or on
behalf of the Trustee or its successor in trust under the Indenture of the
Trustee's Certificate in the form endorsed hereon.
IN WITNESS WHEREOF, West Texas Utilities Company has caused this bond to
be executed in its name by the manual or facsimile signature of its President
or one of its Vice-Presidents, and its corporate seal or a facsimile thereof
to be affixed hereto or imprinted hereon and attested by the manual or
facsimile signature of its Secretary or one of its Assistant Secretaries.
Dated as of
WEST TEXAS UTILITIES COMPANY
By________________________________
President
ATTEST:
____________________________
Secretary
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(Form of reverse side of bond of Series __)
This bond is one of the bonds issued and to be issued from time to time
under and in accordance with and all secured by the indenture dated August 1,
1943, executed and delivered by the Company to Harris Trust and Savings Bank
(hereinafter referred to as the "Trustee") and Harold Eckhart, as Trustees,
and by the indentures supplemental thereto dated, respectively, March 1, 1948,
November 1, 1951, April 1, 1955, January 1, 1958, February 1, 1961, January 1,
1969, July 1, 1973, May 1, 1979, November 15, 1981, November 1, 1983, April
15, 1985, August 1, 1985, May 1, 1986, December 1, 1989, June 1, 1992,
October 1, 1992, February 1, 1994 and March 31, 1995, executed and delivered
by the Company to the Trustees under said indenture dated August 1, 1943, and
by a further indenture supplemental thereto dated _______________ __, ______,
executed and delivered by the Company to Harris Trust and Savings Bank and J.
Bartolini (successor Co-Trustee), as Trustees, prior to the authentication of
this bond (said indenture and said supplemental indentures being hereinafter
referred to as the "Indenture"). Reference to the Indenture and to all
supplemental indentures, if any, hereafter executed pursuant to the Indenture
is hereby made for a description of the property mortgaged and pledged, the
nature and extent of the security and the rights of the holders and registered
owners of said bonds and of the Trustees and of the Company in respect of such
security. By the terms of the Indenture the bonds to be secured thereby are
issuable in series, which may vary as to date, amount, date of maturity, rate
of interest, redemption provisions, medium of payment and in other respects as
in the Indenture provided.
At the option of the Company and upon the notice and in the manner and
with the effect provided in the Indenture, bonds of Series ____, of which this
is one, may be redeemed (a) as a whole at any time, or in part from time to
time, at the redemption price, expressed as a percentage of the principal
amount of the bonds, hereinafter stated under "General Redemption Price," in
effect at the date fixed for redemption, together with accrued interest to
such date on the bonds to be redeemed, and (b) in part from time to time on or
after _______________ ___, _____, (i) for the purpose of complying with the
requirement of subdivision (a) of Section __ of Article VII of the Indenture
in respect of the debt retirement period in which such redemption is effected,
or (ii) out of any moneys deposited with and held from time to time by the
Trustee pursuant to the provisions of subdivision (c) of said Section __ of
Article VII, in each case at the redemption price, expressed as a percentage
of the principal amount of the bonds, hereinafter stated under "Debt
Retirement Redemption Price", in effect at the date fixed for redemption,
together with accrued interest to such date on the bonds to be redeemed:
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If Redeemed If Redeemed
During the Debt During the Debt
12 Months General Retirement 12 Months General Retirement
Beginning Redemption Redemption Beginning Redemption Redemption
________ 1, Price* Price* ________ 1, Price* Price*
- ----------- ---------- ---------- ----------- ---------- ----------
___________________
* (The redemption prices and redemption periods set forth in Article I of
this supplemental indenture are incorporated in and made a part of this
form of bond by reference thereto, and shall be inserted at this point in
each bond of said series.)
provided, that none of the bonds of Series __ may be redeemed prior to
_________ __, ____, except for the purpose of complying with the requirements
of Section __ of Article VII aforesaid, if such redemption is for the purpose
of refunding or is in anticipation of the refunding of such bonds through the
use, directly or indirectly, of funds borrowed by the Company at an interest
cost to the Company less than the interest cost to it in respect of the bonds
of Series __, which is __% per annum; and provided further, that the Company
shall not redeem in any calendar year, at any applicable Debt Retirement
Redemption Price, bonds of Series __ in a principal amount greater than (i) 1%
of the greatest principal amount of the bonds of Series _ issued and
outstanding under, and determined as provided in, the Indenture at any time
between the end of such calendar year and ________ __, ____, multiplied by the
number of full 12-month periods elapsed between the end of such calendar year
and ________ __, ____, less (ii) the principal amount of such bonds previously
redeemed at any Debt Retirement Redemption Price.
In case of certain events of default specified in the Indenture, the
principal of this bond may be declared or may become due and payable in the
manner and with the effect provided in the Indenture. No recourse shall be
had for the payment of the principal of or interest on this bond, or for any
claim based hereon, or otherwise in respect hereof or of the Indenture or any
indenture supplemental thereto, to or against any incorporator, stockholder,
officer or director, past, present or future, of the Company, or of any
predecessor or successor corporation, either directly or through the Company,
or such predecessor or successor corporation, under any constitution or
statute or rule of law, or by the enforcement of any assessment or penalty, or
otherwise, all such liability of incorporators, stockholders, directors and
officers being waived and released by the registered owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Indenture. This bond is transferable by the registered owner hereof, in
person or by attorney duly authorized, at the principal office or place of
business of the Trustee under the Indenture, upon the surrender and
cancellation of this bond and the payment of any stamp tax or other
governmental charge, and upon any such transfer a new registered bond or bonds
of the same series and maturity date and for the same aggregate principal
amount will be issued to the transferee in exchange herefor; provided, that
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the Company (a) shall not register, exchange or transfer any bonds of said
series during the period of ten days next preceding any interest payment date
of bonds of said series and (b) shall not be required to register, exchange or
transfer any bonds of said series during the period beginning at the opening
of business ten days next preceding any date for selection of bonds of said
series to be called for redemption and ending at the close of business on the
day of the giving of the relevant notice of redemption as provided in the
Indenture, and, as to bonds of said series selected for redemption, from and
after the date of such selection.
This bond shall be deemed to be governed by and construed in accordance
with the laws of the State of New York.
AND WHEREAS, on each of the bonds of Series __ (whether in temporary or
definitive form) there is to be endorsed a certificate of the Trustee
substantially in the following form:
Trustee's Certificate
This bond is one of the bonds of the series designated therein, described
in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee,
By_______________________________
Authorized Signature
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) duly paid by the Trustees to the Company, and of other good and
valuable consideration, the receipt whereof is hereby acknowledged, and for
the purpose of further assuring to the Trustees under the Indenture their
title to, or lien upon, the property hereinafter described, under and pursuant
to the terms of the Indenture, as hereby amended, and for the purpose of
further securing the due and punctual payment of the principal of and interest
and the premium, if any, on all bonds which have been heretofore or shall be
hereafter issued under the Indenture and indentures supplemental thereto and
which shall be at any time outstanding thereunder and secured thereby, and for
the purpose of securing the faithful performance and observance of all the
covenants and conditions set forth in the Indenture and/or in any indenture
supplemental thereto, the Company has given, granted, bargained, sold,
transferred, assigned, pledged, mortgaged, warranted the title to and
conveyed, and by these presents does give, grant, bargain, sell, transfer,
assign, pledge, mortgage, warrant the title to and convey unto HARRIS TRUST
AND SAVINGS BANK and J. BARTOLINI, as Trustees under the Indenture as therein
provided, and their successors in the trusts thereby created, and to their
assigns, all the right, title and interest of the Company in and to any and
all premises, plants, property, leases and leaseholds, franchises, permits,
rights and powers of every kind and description, real and personal, (1) which
have been constructed or acquired by the Company on or subsequent to
__________, 199__, and which at the date hereof are owned by the Company, and
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(2) which shall on or after the date hereof be acquired by the Company through
construction, purchase, grant, consolidation, merger or otherwise, together
with the rents, issues, products and profits therefrom, excepting, however,
and there is hereby expressly reserved and excluded from the lien and effect
of the Indenture and of this supplemental indenture, all right, title and
interest of the Company, now owned or hereafter acquired, in and to (a) all
cash, bonds, shares of stock, obligations and other securities not deposited
with the Trustee or Trustees under the Indenture, and (b) all accounts and
bills receivable, judgments (other than for the recovery of real property or
establishing a lien or charge thereon or right therein) and choses in action
not specifically assigned to and pledged with the Trustee or Trustees under
the Indenture, and (c) all tangible personal property held by the Company for
sale, lease, rental or consumption in the ordinary course of business, and (d)
the last day of each of the demised terms created by any lease of property now
leased to the Company, and under each and every renewal of any such lease, the
last day of each and every such demised term being hereby expressly reserved
to and by the Company, and (e) all gas, oil and other minerals existing upon,
within or under any real estate subject to the lien of the Indenture, as
hereby modified, and (f) the real estate specifically excepted and excluded by
the Indenture from the lien and operation thereof.
Without in any way limiting or restricting the generality of the
foregoing description or the foregoing exceptions and reservations, the
Company hereby expressly gives, grants, bargains, sells, transfers, assigns,
pledges, mortgages, warrants the title to and conveys unto the Trustees
subject to all reservations, exceptions, easements, restrictions, conditions
and covenants of record, the properties of the Company described in Appendix A
to this supplemental indenture (said Appendix A being incorporated by
reference herein with the same force and effect as if set forth in full
herein), together with the tenements, hereditaments and appurtenances
thereunto belonging or appertaining:
TO HAVE AND TO HOLD all said property, rights, and interests hereinabove
described and conveyed, assigned, pledged or mortgaged, or intended to be
conveyed, assigned, pledged or mortgaged, together with the rents, issues,
products and profits therefrom, unto HARRIS TRUST AND SAVINGS BANK and J.
BARTOLINI, as Trustees under the Indenture, as hereby amended, and unto their
successor or successors in trust, and their assigns forever, BUT IN TRUST,
NEVERTHELESS, upon the trusts, for the purposes and subject to all the terms,
conditions, provisions and restrictions of the Indenture, as hereby amended.
And upon the considerations and for the purposes aforesaid, and in order,
pursuant to terms of the Indenture, to provide for the issuance under the
Indenture, as hereby amended, of bonds of Series __ and to fix the terms,
provisions and characteristics of the bonds of said Series, and in order to
modify or amend the Indenture in the particulars and to the extent hereinafter
in this supplemental indenture specifically provided, the Company hereby
covenants and agrees with the Trustees as follows:
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ARTICLE I
A series of bonds issuable under the Indenture, as hereby amended, and to
be known and designated as "First Mortgage Bonds, Series __", is hereby
created and authorized. The bonds of Series __ shall be substantially in the
form thereof hereinbefore recited. Each bond of said Series shall be dated as
of the date of the interest payment day thereof to which interest was paid
next preceding the date of issue, unless (a) issued on an interest payment day
thereof to which interest was paid, in which event it shall be dated as of the
date of issue, or (b) issued prior to the occurrence of the first interest
payment day thereof to which interest was paid, in which event it shall be
dated _________ __, 199__; shall be due and payable ________ __, ____; shall
bear interest from the date thereof at the rate of _____ per centum per annum,
payable half-yearly on the first day of ________ and the first day of ________
in each year, and shall be payable, both as to principal and interest, at the
office or agency of the Company in the City of New York, State of New York, in
any coin or currency of the United States of America which at the time of
payment is legal tender for public and private debts, provided that, at the
option of the Company, payment of interest may be made by check mailed to the
address of the person entitled thereto as shown on the registration books of
the Trustee.
At the option of the Company and upon the notice and in the manner and
with the effect provided in the Indenture, except as to notice as hereinafter
provided, the bonds of Series ___ shall be redeemable (a) as a whole at any
time, or in part from time to time, at the redemption price, expressed as a
percentage of the principal amount of the bonds hereinafter stated under
"General Redemption Price", in effect at the date fixed for redemption,
together with accrued interest to such date on the bonds to be redeemed, and
(b) in part from time to time on or after _________ __, 199__, (i) for the
purpose of complying with the requirement of subdivision (a) of Section __ of
Article VII of the Indenture (as hereby amended) in respect of the debt
retirement period in which such redemption is effected, or (ii) out of any
moneys deposited with and held from time to time by the Trustee pursuant to
the provisions of subdivision (c) of said Section __ of Article VII, in each
case at the redemption price, expressed as a percentage of the principal
amount of the bonds, hereinafter stated under "Debt Retirement Redemption
Price", in effect at the date fixed for redemption, together with accrued
interest to such date on the bonds to be redeemed:
If Redeemed If Redeemed
During the Debt During the Debt
12 Months General Retirement 12 Months General Retirement
Beginning Redemption Redemption Beginning Redemption Redemption
________ 1, Price* Price* ________ 1, Price* Price*
- ----------- ---------- ---------- ----------- ---------- ----------
% % % %
100 100
_______________
* Stated as a percentage of principal amount of the Bonds.
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provided, that none of the bonds of Series __ may be redeemed prior to
________ __, 199_, except for the purpose of complying with the requirements
of Section __ of Article VII aforesaid, if such redemption is for the purpose
of refunding or is in anticipation of refunding of such bonds through the use,
directly or indirectly, of funds borrowed by the Company at an interest cost
to the Company less than the interest cost to the Company in respect of the
bonds of Series __ , which is ____% per annum; and provided further, that the
Company shall not redeem in any calendar year, at an applicable Debt
Retirement Redemption Price, bonds of Series ___ in a principal amount greater
than (i) 1% of the greatest principal amount of the bonds of Series ___ issued
and outstanding under, and determined as provided in, the Indenture at any
time between the end of such calendar year and _________ __, ____, multiplied
by the number of full 12-month periods elapsed between the end of such
calendar year and _________ __, ____, less (ii) the principal amount of such
bonds previously redeemed at any Debt Retirement Redemption Price.
The foregoing redemption prices and terms shall be set forth in each of
the bonds of Series __ prior to the execution and authentication thereof.
Notice of redemption of any bonds of Series __ need be given only by mail
and not by publication. Such notice, whether given by mail or by publication,
need be given only once (instead of four times) not less than thirty (30) days
or more than forty-five (45) days prior to the redemption date. If given only
by mail, the mailing of such notice shall be a condition precedent to
redemption, provided that any notice which is mailed in the manner provided in
said Article shall be conclusively presumed to have been duly given whether or
not the holders received such notice, and failure to give notice by mail, or
any defect in such notice, to the holder of any such bond designated for
redemption in whole or in part shall not affect the validity of the redemption
of any other such bond. In all other respects, notice of redemption shall be
given as provided in Article V of the Indenture.
The bonds of Series __ shall, from time to time, be executed on behalf of
the Company and sealed with the corporate seal of the Company, which seal may
be facsimile, all in the manner provided in Section 6 of Article I of the
Indenture as follows: (a) bonds of said Series executed on behalf of the
Company by its President, a Vice-President, its Secretary or an Assistant
Secretary may be so executed by the facsimile signature of such President,
Vice-President, Secretary or Assistant Secretary, as the case may be, of the
Company or of any person or persons who shall have been such officer or
officers, as the case may be, of the Company on or subsequent to the date of
this supplemental indenture, notwithstanding that he or they may have ceased
to be such officer or officers of the Company at the time of the actual
execution, authentication, issue or delivery of any of such bonds of said
Series, and any such facsimile signature or signatures of any such officer or
officers on any such bonds shall constitute execution of such bonds on behalf
of the Company by such officer or officers of the Company for the purposes of
the Indenture (as hereby amended) and shall be valid and effective for all
purposes, provided that all bonds of said Series shall always be executed on
behalf of the Company by the signature, manual or facsimile, of its President
or Vice President and of its Secretary or an Assistant Secretary, and (b) such
corporate seal of the Company may be facsimile, and any bonds of Series __ on
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which such facsimile seal shall be affixed, impressed, imprinted or reproduced
shall be deemed to be sealed with the corporate seal of the Company for the
purposes of the Indenture (as hereby amended) and such facsimile seal shall be
valid and effective for all purposes.
Bonds of Series __ are exchangeable and transferable in the manner and
upon the conditions prescribed in the Indenture (as hereby amended) and
without charge therefor, except for any stamp tax or other governmental
charge; provided, that the Company (a) shall not register, exchange or
transfer bonds of said Series during the period of ten days next preceding any
interest payment date of bonds of said Series and (b) shall not be required to
register, exchange or transfer any bonds of said Series during the period
beginning at the opening of business ten days next preceding any date for
selection of bonds of said Series to be called for redemption and ending at
the close of business on the day of the giving of the relevant notice of
redemption as provided in the Indenture (as hereby amended), and, as to bonds
of said Series selected for redemption, from and after the date of such
selection.
ARTICLE II
Section 1. Section 10 of Article III of the Indenture is hereby amended
by striking out the words "Series A through Series __, inclusive", wherever
the same occur in said section, and by inserting, in lieu thereof, the words
"Series A through Series __, inclusive."
Section 2. Section 1 of Article VII of the Indenture is hereby amended
by striking out the words "Series E through __, inclusive" and by inserting,
in lieu thereof, the words "Series E through __, inclusive".
Section 3. Article VII of the Indenture is hereby amended and expanded
by adding thereto a new section to be known as Section __ of said Article VII
and to read as follows:
"Section __. The Company covenants and agrees, subject to the terms
of this section, that, in addition to the expenditures required to be
made under Sections 1, 2 and 4 through __, inclusive, of this Article
VII, it will
(a) retire, through purchase, payment or redemption, during the
period of twelve consecutive calendar months ending on the last day of
________ in each of the years ____ to ____, inclusive (each such 12-month
period being herein sometimes called a "debt retirement period" or as
"the period" or "such period"), so long as the bonds of Series __
(hereinafter in this section sometimes referred to as the "bonds of said
Series"), shall be outstanding under this Indenture, a principal amount
of bonds of said Series equal to one per centum (1%) of the greatest
principal amount of bonds of said Series issued and outstanding under
this Indenture at any time between the end of such period and _________
__, ____; or
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(b) in lieu of the retirement of all or any portion of the principal
amount of bonds of said Series required by the provisions of subdivision
(a) hereof to be retired during any such period, make net expenditures
for bondable property (as those terms are defined in Section 3 of Article
II of this Indenture) upon which this Indenture is a first lien, subject
only to permitted encumbrances and liens and prepaid liens (as those
terms are defined in said Section 3), in an amount equal to $1,666.67 for
each $1,000 in principal amount of bonds of said Series in lieu of the
retirement of which such net expenditures are made; or
(c) pay to the Trustee in cash on or before the first day of
________ next succeeding the end of each such period a sum sufficient to
redeem (at the debt retirement redemption price then prevailing) the
principal amount of bonds of said Series required by the provisions of
subdivision (a) hereof to be retired which the Company shall have failed
to retire during such period or in lieu of the retirement of which the
Company shall not have made net expenditures for bondable property as
provided in subdivision (b) hereof.
"If in any such debt retirement period the total of the principal amount
of bonds of said Series retired through purchase, payment or redemption,
and/or the amount of net expenditures made for such bondable property, shall
be in excess of the amount by this section required for such period, the
Company shall be entitled to be credited to the extent of such excess on
account of the requirements of this section in any subsequent period or
periods; provided, however, that (i) no retirement of bonds or net
expenditures for bondable property which shall have been made the basis for
the authentication of bonds or the release of property or the withdrawal of
deposited cash or any other moneys, under any provisions of this Indenture, or
which shall have been made out of any insurance moneys or moneys received from
the condemnation, sale or other disposition of any of the Company's property
subject to the lien of this Indenture, or which shall have been previously
used or applied or certified to the Trustee to comply with any requirement of
this Article VII or with any other provision of this Indenture, and (ii) no
retirement of bonds which shall have been made with moneys applied to such
purpose pursuant to any provision of this Article VII or of Section 4 of
Article II or of Article IX of this Indenture shall be certified or be applied
for the purpose of complying with this section or for the purpose of
withdrawing any moneys paid to the Trustee pursuant to this section. Subject
to the foregoing provisions of this paragraph, any such retirement of bonds of
said Series or net expenditures for such bondable property made prior to
_________ __, ____, but subsequent to July 31, 1943, may be certified to
comply with the requirements of this section for the 12-month period ending on
_________ __, ____, or for any period or periods subsequent thereto.
"In determining, for the purposes of this section, the principal amount
of bonds of said Series outstanding under this Indenture at any time, there
shall be excluded the principal amount of such bonds then owned by the Company
and the principal amount of bonds for the retirement of which the necessary
moneys shall be on deposit with the Trustee or any paying agent for bonds of
said Series; and 'the greatest principal amount of bonds of said Series
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outstanding under this Indenture at any time' during any period shall mean the
greatest principal amount of such bonds outstanding, as shown by the Trustee's
records, at the close of business on any day in such period after making the
foregoing exclusions.
"On or before the first day of April in each year beginning with the year
1995, so long as any bonds of said Series shall be outstanding, the Company
shall deliver to the Trustee a certificate, signed in the name of the Company
by its President or a Vice-President and by its Treasurer or an Assistant
Treasurer, (1) showing in reasonable detail (i) the greatest principal amount
of bonds of said Series outstanding under this Indenture at any time between
the end of the preceding debt retirement period ended December 31 and
_________ __, ____, (ii) the principal amount of bonds of said Series retired,
through purchase, payment or redemption, during such period and/or the amount
of net expenditures for such bondable property made during such period, which
the Company desires to have applied to the requirements of this section for
such period, and (iii) such excess amounts, if any, of bonds of said Series so
retired and/or net expenditures for such bondable property made, in any
preceding period or periods, which the Company desires to have applied to the
requirements of this section for the period next preceding the date of such
certificate, and (2) stating that none of such bonds of said Series and none
of such expenditures for such bondable property desired by the Company to be
applied to the requirements of this section for such next preceding period has
been made the basis for the authentication of bonds or the release of property
or the withdrawal of deposited cash or any other moneys, under any provision
of this Indenture, or has been retired or made out of any insurance moneys or
moneys received from the condemnation, sale or other disposition of any of the
Company's property subject to the lien of this Indenture or has been
previously used or applied or certified to the Trustee to comply with any
requirement of this Article VII or with any other provision of this Indenture,
and that none of such retirements of bonds has been made with moneys applied
to such purpose pursuant to any provision of this Article VII or of Section 4
of Article II or of Article IX of this Indenture. If the retirement of bonds
of said Series and the net expenditures for such bondable property recited in
such certificate for the purpose of complying with this section are
insufficient to meet the requirements of this section for such next preceding
period and the Company shall not be entitled, on account of excess retirements
of bonds of said Series or net expenditures for such bondable property made in
any preceding period or periods, to take credit for such next preceding period
in the amount of the deficiency, the Company shall pay in cash to the Trustee,
concurrently with the delivery of such certificate, the amount of any such
deficiency which may be required to comply with subdivision (c) of this
section.
"At the option of the Company any moneys paid to the Trustee to comply
with the provisions of subdivision (c) of this section shall, upon the written
request of the Company signed in its name by its President or a Vice-
President, (1) be applied by the Trustee to the purchase in the open market of
bonds of said Series, at not exceeding the general redemption price at which
bonds of said Series may then be redeemed, or to the redemption of bonds of
said Series at the debt retirement redemption price at which bonds of said
Series may then be redeemed, or (2) be paid by the Trustee to or upon the
order of the Company to the extent of (i) the principal amount of bonds of
14
said Series purchased or paid by the Company and delivered to the Trustee,
cancelled or for cancellation, and (ii) the accrued interest and the premium,
if any, theretofore paid to the Trustee, as hereinabove provided, on such
principal amount of bonds. The requisite showing of facts entitling the
Company to have paid to it any moneys under the provisions of this section
shall be made by a certificate signed by the President or a Vice-President of
the Company and by its Treasurer or an Assistant Treasurer and delivered to
the Trustee. The Company hereby covenants and agrees that it will pay to the
Trustee from time to time in cash such additional sums, if any, as shall be
paid or required to be paid by the Trustee for accrued interest and premium,
if any, in respect of any bonds of said Series purchased or redeemed pursuant
to the provisions of this section.
"No retirement of bonds or net expenditures for such bondable property
certified or applied to comply with the requirements of this section or made
out of moneys deposited with the Trustee under the provisions of this section
or used as a basis for the withdrawal of any such moneys shall be certified to
comply with any provision of this Article VII or be available as a basis for
the authentication of bonds or the withdrawal of deposited cash or any other
moneys or the release of property under, or to comply with, any other
provision of this Indenture.
"Any and all bonds of said Series, the retirement of which (through
payment or purchase) shall be certified to the Trustee in compliance with the
provisions of this section shall be delivered to the Trustee at or before the
time the same shall be so certified and shall thereupon be cancelled and
destroyed by the Trustee by cremation or by shredding, compacting and
solidifying or other equivalent means, unless theretofore so cancelled and
destroyed. All other bonds of said Series received by the Trustee pursuant to
any provision of this section shall thereupon be cancelled and destroyed by
the Trustee."
ARTICLE III
The Company covenants that, so long as any of the bonds of Series __ are
outstanding, it will not declare any dividends on its common stock (except (i)
dividends payable in shares of its common stock, and (ii) dividends payable in
cash where concurrently with the payment thereof an amount in cash at least
equal to the amount of the cash dividends paid is received by the Company as a
capital contribution or as the proceeds of the issue and sale of shares of its
common stock), or make any other distributions on shares of its common stock,
or purchase or otherwise acquire for value any shares of its common stock
(except in exchange for, or out of the proceeds from the sale of, other shares
of its common stock), if after giving effect thereto, the aggregate amount of
all such dividends, distributions, purchases or acquisitions (other than those
excepted above) paid or made subsequent to _________ __, 199_, would exceed
the sum of:
(a) the earned surplus of the Company earned after _________
__, 199_, determined as hereinafter provided;
(b) the earned surplus of the Company at _________ __, 199_;
and
15
(c) such additional amount as may be authorized or approved,
upon application of the Company, by the Securities and Exchange
Commission, or any successor commission thereto, under the Public
Utility Holding Company Act of 1935, as amended.
The earned surplus of the Company earned after _________ __, 199_, shall
be determined, for the purposes of this Article, in accordance with generally
accepted principles of accounting, but after deduction of all dividends paid
or accrued after _________ __, 199_, on preferred stock of the Company, and
before giving effect to charges to earned surplus in connection with dividends
and distributions on and purchases and acquisitions of common stock of the
Company, net transfers from earned surplus to stated capital accounts, and
charges or credits to earned surplus in respect of matters inherent in the
Company's accounts at _________ __, 199_, including charges for the purpose of
writing off or writing down the book value of assets owned by the Company on
that date.
In determining earned surplus earned for any period after _________ __,
199_, for the purpose of this Article, the amounts to be so deducted as
charges or provisions for depreciation, retirement, renewals and replacements
and/or amortization, shall be not less in the aggregate than an amount equal
to the required percentage (as defined in Section 1 of Article VII of the
Indenture, as amended by the indentures supplemental thereto dated January 1,
1958 and May 1, 1979) of the arithmetical average of the amounts of
depreciable property (as defined in said Section 1 of Article VII) of the
Company at the beginning, and the amount thereof at the end, of such period.
ARTICLE IV
SECTION 1. The provisions of this supplemental indenture shall be
effective from and after the date of execution hereof; and the Indenture, as
hereby amended, shall remain in full force and effect.
SECTION 2. Each reference in the Indenture, or this supplemental
indenture, to any article, section, term or provision of the Indenture shall
mean and be deemed to refer to such article, section, term or provision of the
Indenture, as modified by this supplemental indenture, except where the
context otherwise indicates.
SECTION 3. All the covenants, provisions, stipulations and agreements in
this supplemental indenture contained are and shall be for the sole and
exclusive benefit of the parties hereto, their successors and assigns, and of
the holders and registered owners from time to time of the bonds and of the
coupons issued and outstanding from time to time under and secured by the
Indenture, as hereby amended by this supplemental indenture.
This supplemental indenture may be simultaneously executed in any number
of counterparts and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
16
At the time of the execution of this supplemental indenture, the
aggregate principal amount of all indebtedness of the Company outstanding, or
to be presently outstanding, under and secured by the Indenture, as hereby
amended, is $235,203,000, consisting of and represented by First Mortgage
Bonds of the Company as follows:
Interest Principal
Series Rate Maturity Date Amount
O 9-1/4 December 1, 2019 55,203,000
P 7-3/4 June 1, 2007 25,000,000
Q 6-7/8 October 1, 2002 35,000,000
R 7 October 1, 2004 40,000,000
S 6-1/8 February 1, 2004 40,000,000
T 7-1/2 March 1, 2000 40,000,000
*
__________________
* To be issued by the Company under the Indenture subsequent to the date of
execution of this supplemental indenture.
SECTION 4. This Supplemental Indenture and the bonds of Series __ shall
be governed by and construed in accordance with the laws of the State of New
York.
17
IN WITNESS WHEREOF, said West Texas Utilities Company has caused this
instrument to be executed in its corporate name by its President or a Vice
President and its corporate seal to be hereunto affixed and to be attested by
its Secretary or an Assistant Secretary, and said Harris Trust and Savings
Bank, for the purpose of entering into and joining with the Company in the
execution and delivery of this supplemental indenture, has caused this
instrument to be executed in its corporate name by its President or a Vice
President and its corporate seal to be hereunto affixed and to be attested by
its Secretary or an Assistant Secretary, and said J. Bartolini, for the
purpose of entering into and joining with the Company in the execution and
delivery of this supplemental indenture, has signed and sealed this
instrument, in several counterparts; all as of the day and year first above
written.
WEST TEXAS UTILITIES COMPANY
By_____________________________
President
(CORPORATE SEAL)
ATTEST:
_______________________________
Secretary
HARRIS TRUST AND SAVINGS BANK
As Trustee
By________________________________
Vice President
(CORPORATE SEAL)
ATTEST:
_______________________________
Assistant Secretary
By_______________________________(Seal)
As Co-Trustee
Executed by each of the above-named
parties hereto in the presence of:
_______________________________
_______________________________
Witnesses
18
STATE OF ILLINOIS )
ss.
COUNTY OF COOK )
Before me, this undersigned, a Notary Public in and for Cook County in
the State of Illinois, on this day personally appeared ______________________,
Vice President of Harris Trust and Savings Bank, and Illinois corporation,
known to me to be such officer, and J. Bartolini, both known to me to be the
persons whose names are subscribed to the foregoing instrument, and each of
them acknowledged to me severally that he executed and signed the same for the
purposes and consideration therein expressed; and said _______________________
acknowledged to me that he executed and signed said instrument in the capacity
therein stated and on behalf, and as the act and deed, of said corporation,
for the purposes and consideration therein expressed and pursuant to the
appropriate by-law provisions of said corporation.
Given under my hand and seal of office this, the _____ day of _________,
A.D. 199_.
(NOTARIAL SEAL)
_____________________________________
Notary Public
Cook County, Illinois
My Commission expires ________________.
19
STATE OF TEXAS )
ss.
COUNTY OF TAYLOR )
Before me, the undersigned, a Notary Public in and for Taylor County in
the State of Texas, on this day personally appeared _____________________,
________________ of West Texas Utilities Company, a Texas corporation, known
to me to be such officer, and the person whose name is subscribed to the
foregoing instrument, and he acknowledged to me severally that he executed and
signed the same for the purposes and consideration therein expressed; and said
_____________________ acknowledged to me that he executed and signed said
instrument in the capacity therein stated and on behalf, and as the act and
deed, of said corporation, for the purposes and consideration therein
expressed and pursuant to the authority of appropriate resolution of the Board
of Directors of said corporation.
Given under my hand and seal of office this ____ day of ______________,
A.D. 199_.
(NOTARIAL SEAL)
_____________________________________
Notary Public
State of Texas
My Commission expires ________________.
20
STATE OF TEXAS )
ss.
COUNTY OF TAYLOR )
The undersigned, being duly sworn, deposes and says that he is the
President of West Texas Utilities Company, a Texas corporation, which executed
the foregoing instrument, and that said instrument was executed by a utility,
as defined in Section 35.01 of Subchapter A, Chapter 35, of The Business and
Commerce Code of the State of Texas, engaged in the generation, transmission,
distribution and sale of electric power in the State of Texas.
________________________________
President of
West Texas Utilities Company
Subscribed and sworn to before me, this ____ day of _________________,
A.D. 199_.
(NOTARIAL SEAL)
_____________________________________
Notary Public
State of Texas
My Commission expires ________________.