Exhibit 4(j)
TEXAS UTILITIES ELECTRIC COMPANY
OFFICER'S CERTIFICATE
Cathryn Hulen, the Treasurer of Texas Utilities Electric Company (the
"Company"), pursuant to the authority granted in the Board Resolutions of the
Company dated October 17, 1995, and Sections 201 and 301 of the Indenture
defined herein, does hereby certify to The Bank of New York (the "Trustee"), as
Trustee under the Indenture of the Company (For Unsecured Subordinated Debt
Securities relating to Trust Securities) dated as of December 1, 1995 (the
"Indenture") that:
1. The securities of the first series to be issued under the Indenture
shall be designated "8.25% Junior Subordinated Debentures, Series A,
due September 30, 2030" (the "Debentures of the First Series"). The
Debentures of the First Series are to be issued to TU Electric Capital
I, a Delaware statutory business trust (the "Trust"). All capitalized
terms used in this certificate which are not defined herein but are
defined in the Indenture shall have the meanings set forth in the
Indenture;
2. The Debentures of the First Series shall be limited in aggregate
principal amount to $154,869,150 at any time Outstanding, except as
contemplated in Section 301(b) of the Indenture;
3. The Debentures of the First Series shall mature and the principal
shall be due and payable together with all accrued and unpaid interest
thereon on September 30, 2030;
4. The Debentures of the First Series shall bear interest from, and
including, the date of original issuance, at the rate of 8.25% per
annum payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year (each, an "Interest Payment Date")
commencing December 31, 1995. The amount of interest payable for any
such period will be computed on the basis of a 360-day year of twelve
30-day months and on the basis of the actual number of days elapsed
within any month in relation to the deemed 30 days of such month.
Interest on the Debentures of the First Series will accrue from, and
including, the date of original issuance but if interest has been paid
on such Debentures of the First Series, then from, and excluding, the
most recent Interest Payment Date through which interest has been paid
or duly provided for. In the event that any Interest Payment Date is
not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of such delay),
except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
Interest Payment Date;
5. Each installment of interest on a Debenture of the First Series shall
be payable to the Person in whose name such Debenture of the First
Series is registered at the close of business on the day 15 days
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Debentures of the First Series;
provided, however, that if the Debentures of the First Series are held
neither by the Trust nor by a
securities depositary, the Company shall have the right to change the
Regular Record Date by one or more Officer's Certificates. Any
installment of interest on the Debentures of the First Series not
punctually paid or duly provided for shall forthwith cease to be
payable to the Holders of such Debentures of the First Series on such
Regular Record Date, and may be paid to the Persons in whose name the
Debentures of the First Series are registered at the close of business
on a Special Record Date to be fixed by the Trustee for the payment of
such Defaulted Interest. Notice of such Defaulted Interest and Special
Record Date shall be given to the Holders of the Debentures of the
First Series not less than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the
Debentures of the First Series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the
Indenture;
6. The principal and each installment of interest on the Debentures of
the First Series shall be payable at, and registration and
registration of transfers and exchanges in respect of the Debentures
of the First Series may be effected at, the office or agency of the
Company in the City of New York; provided that payment of interest may
be made at the option of the Company by check mailed to the address of
the persons entitled thereto. Notices, demands to or upon the Company
in respect of the Debentures of the First Series may be served at the
office or agency of the Company in The City of New York. The Trustee
will initially be the agency of the Company for such service of
notices and demands; provided, however, that the Company reserves the
right to change, by one or more Officer's Certificates any such office
or agency. The Trustee will be the Security Registrar and the Paying
Agent for the Debentures of the First Series;
7. The Debentures of the First Series will be redeemable on or after
November 1, 2001 at the option of the Company, at any time and from
time to time in whole or in part, at a redemption price equal to 100%
of the principal amount of the Debentures of the First Series being
redeemed, together with any accrued interest, including Additional
Interest, if any, to the redemption date, upon not less than 30 nor
more than 60 days' notice given as provided in the Indenture. The
Company, however, may not redeem less than all Outstanding Debentures
of the First Series unless the conditions specified in the last
paragraph of this item are met;
The Debentures of the First Series will also be redeemable at the
option of the Company if a Tax Event shall occur and be continuing and
the circumstance described in the penultimate sentence of Section
9.04(d) of the Amended and Restated Trust Agreement relating to the
Trust shall apply, in whole or in part, at a redemption price plus
accrued and unpaid distributions equal to 100% of the principal amount
of the Debentures of the First Series then Outstanding plus any
accrued and unpaid interest, including Additional Interest, if any, to
the redemption date, upon not less than 30 nor more than 60 days'
notice given as provided in the Indenture. "Tax Event" means the
receipt by the Trust of an opinion of nationally recognized
independent tax counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in, the laws
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or treaties (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein
affecting taxation, (b) any judicial decision or any official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement (including any notice or announcement of intent to issue
or adopt any such administrative pronouncement, ruling, regulatory
procedure or regulation) (each, for purposes of this definition, an
"Administrative Action"), or (c) any amendment to, clarification of,
or change in the official position or the interpretation of any such
Administrative Action or judicial decision or any interpretation or
pronouncement that provides for a position with respect to such
Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case by the
legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification or
change is made known, which amendment, clarification, or change is
effective, which Administrative Action is taken or which judicial
decision is issued, in each case on or after December 12, 1995, there
is more than an insubstantial risk that (i) the Trust is, or will be,
subject to United States federal income tax with respect to interest
received on the Debentures, (ii) interest payable by the Company on
the Debentures is not, or will not be, fully deductible by the Company
for United States federal income tax purposes, or (iii) the Trust is,
or will be, subject to more than a de minimis amount of other taxes,
duties or other governmental charges;
The Company may not redeem less than all the Debentures of the First
Series unless all accrued and unpaid interest (including any
Additional Interest) has been paid in full on all Debentures
Outstanding under the Indenture for all quarterly interest periods
terminating on or prior to the date of redemption or if a partial
redemption of 8.25% Trust Originated Preferred Securities would result
in a delisting of such securities by any national securities exchange
on which they are then listed.
8. So long as any Debentures of the First Series are Outstanding, the
failure of the Company to pay interest on any Debentures of the First
Series within 30 days after the same becomes due and payable (whether
or not payment is prohibited by the provisions of Article Fifteen of
the Indenture) shall constitute an Event of Default; provided,
however, that a valid extension of the interest payment period by the
Company as contemplated in Section 311 of the Indenture and paragraph
(9) of this Certificate shall not constitute a failure to pay interest
for this purpose;
9. Pursuant to Section 311 of the Indenture, the Company shall have the
right, at any time and from time to time during the term of the
Debentures of the First Series, to extend the interest payment period
to a period not exceeding 20 consecutive quarters (an "Extension
Period") during which period interest will be compounded quarterly. At
the end of the Extension Period, the Company shall pay all interest
accrued and unpaid (together with interest thereon at the rate
specified for the Debentures of the First Series, compounded
quarterly, to the extent permitted by applicable law). However, during
any such Extension Period, the Company shall not declare or pay any
dividend or distribution (other than a dividend or distribution in
common stock of the Company) on, or redeem, purchase, acquire or make
a liquidation payment with respect to, any of its capital stock,
redeem any indebtedness that is pari passu with the Debentures of the
First Series, or make any guarantee payments with respect to the
foregoing. Prior to the termination of any such Extension Period, the
Company may
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further extend the interest payment period, provided that such
Extension Period together with all such previous and further
extensions thereof shall not exceed 20 consecutive quarters at any one
time or extend beyond the maturity date of the Debentures of the First
Series. Upon the termination of any such Extension Period and the
payment of all amounts then due, the Company may select a new
Extension Period, subject to the above requirements. No interest shall
be due and payable during an Extension Period, except at the end
thereof. The Company will give the Trust or other Holders and the
Trustee notice of its election of an Extension Period prior to the
earlier of (i) one Business Day prior to the record date for the
distribution which would occur but for such election or (ii) the date
the Company is required to give notice to the New York Stock Exchange
or other applicable self-regulatory organization of the record date;
10. In the event that, at any time subsequent to the initial
authentication and delivery of the Debentures of the First Series, the
Debentures of the First Series are to be held by a securities
depositary, the Company may at such time establish the matters
contemplated in clause (r) in the second paragraph of Section 301 of
the Indenture in an Officer's Certificate supplemental to this
Certificate;
11. No service charge shall be made for the registration of transfer or
exchange of the Debentures of the First Series; provided, however,
that the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
with the exchange or transfer;
12. The Debentures of the First Series shall have such other terms and
provisions as are provided in the form set forth in Exhibit A hereto,
and shall be issued in substantially such form;
13. In the event that the Debentures of the First Series are distributed
to holders of 8.25% Trust Originated Preferred Securities as a result
of the occurrence of a Tax Event, the Company will use its best
efforts to list the Debentures of the First Series on the New York
Stock Exchange;
14. The undersigned has read all of the covenants and conditions contained
in the Indenture relating to the issuance of the Debentures of the
First Series and the defini tions in the Indenture relating thereto
and in respect of which this certificate is made;
15. The statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the undersigned
with officers and employees of the Company familiar with the matters
set forth herein;
16. In the opinion of the undersigned, he has made such examination or
investigation as is necessary to express an informed opinion whether
or not such covenants and conditions have been complied with; and
17. In the opinion of the undersigned, such conditions and covenants and
the conditions precedent, if any (including any covenants compliance
with which constitutes a condition precedent) to the authentication
and delivery of the Debentures of the First Series requested in the
accompanying Company Order have been complied with.
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IN WITNESS WHEREOF, I have executed this Officer's Certificate this 12th
day of December, 1995.
/s/ Cathryn Hulen
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Cathryn Hulen
Treasurer
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NO._______________
CUSIP NO.__________
EXHIBIT A
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
TEXAS UTILITIES ELECTRIC COMPANY
8.25% JUNIOR SUBORDINATED DEBENTURES, SERIES A,
DUE SEPTEMBER 30, 2030
TEXAS UTILITIES ELECTRIC COMPANY, a corporation duly organized and existing
under the laws of the State Texas (herein referred to as the "Company", which
term includes any successor Person under the Indenture), for value received,
hereby promises to pay to ____________________________________, or registered
assigns, the principal sum of ____________________ Dollars on September 30,
2030, and to pay interest on said principal sum from, and including, December
12, 1995 or from, and excluding, the most recent Interest Payment Date through
which interest has been paid or duly provided for, quarterly on March 31, June
30, September 30 and December 31 of each year, commencing December 31, 1995 at
the rate of 8.25% per annum until the principal hereof is paid or made available
for payment. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. Interest on
the Securities of this series will accrue from, and including, December 12, 1995
through the first Interest Payment Date, and thereafter will accrue, from, and
excluding, the last Interest Payment Date through which interest has been paid
or duly provided for. In the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the day 15 days preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, the State of New York, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at the option of
the Company, interest on this Security may be paid by check mailed to the
address of the person entitled thereto, as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
TEXAS UTILITIES ELECTRIC COMPANY
By:_______________________________________
ATTEST:
____________________________
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_______________________________________
Authorized Signatory
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[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 1, 1995 (herein, together with
any amendments thereto, called the "Indenture", which term shall have the
meaning assigned to it in such instrument), between the Company and The Bank of
New York, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture, including the Board Resolutions and Officer's Certificate filed with
the Trustee on December 12, 1995 creating the series designated on the face
hereof, for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $154,869,150.
The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, at any time on or after November
1, 2001 as a whole or in part, at the election of the Company, at a Redemption
Price equal to 100% of the principal amount, together in the case of any such
redemption with accrued interest to, but not including, the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of such Security, or one or more Predecessor
Securities, of record at the close of business on the related Regular Record
Date referred to on the face hereof, all as provided in the Indenture.
The Securities of this series will also be redeemable at the option of
the Company if a Tax Event shall occur and be continuing and the circumstance
described in the penultimate sentence of Section 9.04(d) of the Amended and
Restated Trust Agreement relating to TU Electric Capital I, a Delaware statutory
business trust, shall apply, in whole or in part, at a redemption price plus
accrued and unpaid distributions equal to 100% of the principal amount of the
Securities of this series then Outstanding plus any accrued and unpaid interest,
including Additional Interest, if any, to the redemption date, upon not less
than 30 nor more than 60 days' notice given as provided in the Indenture. "Tax
Event" means the receipt by the Trust of an opinion of nationally recognized
independent tax counsel experienced in such matters to the effect that, as a
result of (a) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or treaties (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial decision or
any official administrative pronouncement, ruling, regulatory procedure, notice
or announcement (including any notice or announcement of intent to issue or
adopt any such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, for purposes of this definition, an "Administrative Action"),
or (c) any amendment to, clarification of, or change in the official position or
the interpretation of any such Administrative Action or judicial decision or any
interpretation or pronouncement that provides for a position with respect to
such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case by the legislative body,
court, governmental authority or regulatory body, irrespective of the manner in
which such amendment, clarification or change is made known, which amendment,
clarification, or change is effective, which Administrative Action is taken or
which judicial decision is issued, in each case on or after December 12, 1995,
there is more than an insubstantial risk that (i) the Trust is, or will be,
subject to United States federal income tax with respect to interest received on
the Debentures, (ii) interest payable by the Company on the Debentures is not,
or will not be, fully deductible by the Company for United States federal income
tax purposes, or (iii) the Trust is, or will be, subject to more than a de
minimis amount of other taxes, duties or other governmental charges;
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In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in aggregate
principal amount of the Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be continuing shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of all series at the time Outstanding
in respect of which an Event of Default shall have occurred and be continuing a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of
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any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Company shall have the right at any time and from time to time
during the term of the Securities of this series to extend the interest payment
period to a period not exceeding 20 consecutive quarters (an "Extended Interest
Payment Period"), and at the end of such Extended Interest Payment Period, the
Company shall pay all interest then accrued and unpaid (together with interest
thereon at the same rate as specified for the Securities of this series,
compounded quarterly, to the extent permitted by applicable law); provided,
however, that during such Extended Interest Payment Period the Company shall not
declare or pay any dividend or distribution (other than a dividend or
distribution in common stock of the Company) on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its capital stock, redeem any
indebtedness that is pari passu with the Securities of this series, or make any
guarantee payments with respect to the foregoing. Prior to the termination of
any such Extended Interest Payment Period, the Company may further extend the
interest payment period, provided that such Extended Interest Payment Period,
together with all such previous and further extensions thereof, may not exceed
20 consecutive quarters or extend beyond the Stated Maturity of the Securities
of this series. Upon the termination of any such Extended Interest Payment
Period and the payment of all amounts then due, the Company may select a new
Extended Interest Payment Period, subject to the above requirements. No
interest during the Extended Interest Payment Period, except at the end thereof,
shall be due and payable. The Company shall give the Holder of this Security
notice of its selection of such Extended Interest Payment Period as provided in
or pursuant to the Indenture.
The Securities of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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