EXHIBIT 4 (ll)
ENSERCH Corporation
OFFICER'S CERTIFICATE
Robert S. Shapard, the Treasurer of ENSERCH Corporation (the
"Company"), pursuant to the authority granted in the Board Resolutions of the
Company dated December 17, 1997, and Sections 201 and 301 of the Indenture
defined herein, does hereby certify to The Bank of New York (the "Trustee"), as
Trustee under the Indenture of the Company (For Unsecured Debt Securities) dated
as of January 1, 1998 (the "Indenture") that:
1. The securities of the first series to be issued under the Indenture
shall be designated "6 1/4% Series A Notes due January 1, 2003" (the
"Series A Notes"). 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 Series A Notes shall be limited in aggregate principal
amount to $125,000,000 at any time Outstanding, except as
contemplated in Section 301(b) of the Indenture;
3. The Series A Notes shall mature and the principal shall be due
and payable together with all accrued and unpaid interest
thereon on January 1, 2003;
4. The Series A Notes shall bear interest, at the rate of 6 1/4%
per annum payable semi-annually on July 1 and January 1 of
each year (each, an "Interest Payment Date") commencing July
1, 1998. The amount of interest payable for any such period
will be computed on the basis of a 360-day year of twelve 30-
day months. Interest on the Series A Notes will accrue from
the date of issuance thereof but if interest has been paid on
such Series A Notes, then from the most recent Interest
Payment Date to which interest has been paid or duly provided
for. In the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of
such delay), with the same force and effect as if made on such
Interest Payment Date;
5. Each installment of interest on a Series A Note shall be
payable to the Person in whose name such Series A Note is
registered at the close of business on the 15th day of the
calender month next preceding the corresponding Interest
Payment Date (the "Regular Record Date") for the Series A
Notes. Any installment of interest on the Series A Notes not
punctually paid or duly provided for shall forthwith cease to
be payable to the Holders of such Series A Notes on such
Regular Record Date, and may be paid to the Persons in whose
name the Series A Notes 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 Series A Notes 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 Series A Notes 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 Series A
Notes shall be payable at, and registration and registration
of transfers and exchanges in respect of the Series A Notes
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 and demands
to or upon the Company in respect of the Series A Notes may be
served at the office or agency of the Company in The City of
New York. The Corporate Trust Office of the Trustee will
initially be the agency of the Company for such payment,
registration and registration of transfers and exchanges and
service of notices and demands and the Company hereby appoints
the Trustee as its agent for all such purposes; provided,
however, that the Company reserves the right to change, by one
or more Officer's Certificates, any such office or agency and
such agent. The Trustee will be the Security Registrar and the
Paying Agent for the Series A Notes;
7. The Series A Notes will be redeemable as a whole at any time
or in part from time to time, at the option of the Company, at
a Redemption Price equal to the greater of (i) 100% of the
principal amount of such Series A Notes, and (ii) the sum of
the present values of the remaining scheduled payments of
principal and interest thereon from the Redemption Date to the
maturity date, computed by discounting such payments, in each
case, to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 10 basis points, plus, in each case,
accrued interest on the principal amount thereof to the
Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury
Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the
Series A Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of such Series A
Notes. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such Redemption Date, as set forth in the daily
statistical release (or any successor
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release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release)
is not published or does not contain such prices on such
business day, the average of the Reference Treasury Dealer
Quotations actually obtained by the Trustee for such
Redemption Date. "Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day
preceding such Redemption Date.
"Reference Treasury Dealer" means each of Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co.,
Lehman Brothers, Inc. and Salomon Brothers Inc and their
respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
Notice of any redemption of Series A Notes will be mailed at
least 30 days but no more than 60 days before the Redemption
Date to each holder of Series A Notes to be redeemed.
Unless the Company defaults in payment of the Redemption
Price, on and after the Redemption Date interest will cease to
accrue on the Series A Notes or portions thereof called for
redemption.
The Company shall deliver to the Trustee before any Redemption
Date for Series A Notes its calculation of the Redemption
Price applicable to such redemption. Except with respect to
the obligations of the Trustee expressly set forth in the
foregoing definitions of "Comparable Treasury Issue" and
"Comparable Treasury Price," the Trustee shall be under no
duty to inquire into, may presume the correctness of, and
shall be fully protected in acting upon the Company's
calculation of any Redemption Price of the Series A Notes.
In lieu of stating the Redemption Price, notices of redemption
of Series A Notes shall state substantially the following:
"The Redemption Price of the Series A Notes to be redeemed
shall equal the greater of (i) 100% of the principal amount of
such Series A Notes, and (ii) the sum of the present values of
the remaining scheduled payments of principal and interest
thereon from the Redemption Date to the maturity date,
computed by discounting such payments, in each case, to the
Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate (as
defined in the Indenture) plus 10 basis points."
Except as provided herein, Article Four of the Indenture shall
apply to redemptions of Series A Notes.
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8. The Series A Notes will be originally issued in global form
payable to Cede & Co. and will, unless and until the Series A
Notes are exchanged in whole or in part for certificated
Series A Notes registered in the names of various beneficial
holders thereof (in accordance with the conditions set forth
in the legend appearing in the form of the Series A Notes,
hereto attached as Exhibit A), contain restrictions on
transfer, substantially as described in such form;
9. No service charge shall be made for the registration of
transfer or exchange of the Series A Notes; provided, however,
that the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed
in connection with the exchange or transfer;
10. If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Series A Notes, or any portion
of the principal amount thereof, as contemplated by Section
701 of the Indenture, the Company shall not deliver an
Officer's Certificate described in clause (z) in the first
paragraph of said Section 701 unless the Company shall also
deliver to the Trustee, together with such Officer's
Certificate, either:
(A) an instrument wherein the Company,
notwithstanding the satisfaction and discharge of its
indebtedness in respect of the Series A Notes, shall assume
the obligation (which shall be absolute and unconditional) to
irrevocably deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 701), if any,
or any combination thereof, at such time or times, as shall be
necessary, together with the money and/or Eligible Obligations
theretofore so deposited, to pay when due the principal of and
premium, if any, and interest due and to become due on such
Series A Notes or portions thereof, all in accordance with and
subject to the provisions of said Section 701; provided,
however, that such instrument may state that the obligation of
the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a
notice asserting the deficiency accompanied by an opinion of
an independent public accountant of nationally recognized
standing, selected by the Trustee, showing the calculation
thereof; or
(B) an Opinion of Counsel to the effect that, as a
result of a change in law occurring after the date of this
certificate, the Holders of such Series A Notes, or portions
of the principal amount thereof, will not recognize income,
gain or loss for United States federal income tax purposes as
a result of the satisfaction and discharge of the Company's
indebtedness in respect thereof and will be subject to United
States federal income tax on the same amounts, at the same
times and in the same manner as if such satisfaction and
discharge had not been effected.
11. The Series A Notes 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;
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12. The undersigned has read all of the covenants and conditions
contained in the Indenture relating to the issuance of the
Series A Notes and the definitions in the Indenture relating
thereto and in respect of which this certificate is made;
13. The statements contained in this certificate are based upon
the familiarity of the undersigned with the Indenture, the
documents accompanying this certificate, and upon discussions
by the undersigned with officers and employees of the Company
familiar with the matters set forth herein;
14. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion whether or not such covenants and
conditions have been complied with; and
15. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including any
covenants compliance with which constitutes a condition
precedent) to the authentication and delivery of the Series A
Notes 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
30th day of January, 1998.
/s/ Robert S. Shapard
------------------------------------
Robert S. Shapard
Treasurer
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No._______________
Cusip No.__________
EXHIBIT A
[FORM OF FACE OF SERIES A NOTE]
[(SEE LEGEND AT THE END OF THIS SECURITY FOR
RESTRICTIONS ON TRANSFERABILITY AND CHANGE OF FORM)]
ENSERCH CORPORATION
6 1/4% SERIES A NOTES DUE JANUARY 1, 2003
ENSERCH CORPORATION, a corporation duly organized and existing under
the laws of the State of Texas (herein referred to as the "Company", which term
includes any successor Person under the Indenture), for value received, hereby
promises to pay to [Cede & Co.] or registered assigns, the principal sum of
_______________________________________________Dollars on January 1, 2003, and
to pay interest on said principal sum, semi-annually on July 1 and January 1 of
each year, commencing July 1, 1998, at the rate of 6 1/4% 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 January 30, 1998, to the first Interest Payment Date, and thereafter
will accrue from the last Interest Payment Date to which interest has been paid
or duly provided for. In the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of such delay) with the same force and effect as if made on
the Interest Payment Date. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the 15th day of the calendar month next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in The City of New York, the State of New York in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, provided, however, that, at the
option of the Company, interest on this Security may be paid by check mailed to
the address of the person entitled thereto, as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
ENSERCH CORPORATION
By:_______________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:_______________________
Authorized Signatory
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[FORM OF REVERSE OF SERIES A NOTE]
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 January 1, 1998 (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 January 30, 1998 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 $125,000,000.
The Securities of this series will be redeemable as a whole at
any time or in part from time to time, at the option of the Company, at a
Redemption Price equal to the greater of (i) 100% of the principal amount of
such Securities of this series, and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon from the
Redemption Date to the maturity date, computed by discounting such payments, in
each case, to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 10 basis points,
plus, in each case, accrued interest on the principal amount thereof to the
Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury
Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the
Securities of this series to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of such Securities of this series. "Independent
Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii)
if such release (or any successor release) is not published or
does not contain such prices on such business day, the average
of the Reference Treasury Dealer Quotations actually obtained
by the Trustee for such Redemption Date. "Reference Treasury
Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a
percentage of its
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principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business
day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co.,
Lehman Brothers, Inc. and Salomon Brothers Inc. and their
respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
Notice of any redemption will be mailed at least 30 days but
no more than 60 days before the Redemption Date to each holder
of Securities of this series to be redeemed.
Unless the Company defaults in payment of the Redemption
Price, on and after the Redemption Date interest will cease to
accrue on the Securities of this series or portions thereof
called for redemption.
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, including the Officer's Certificate
described above.
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 contains provisions permitting the Holders of a majority in aggregate
principal amount of the Securities of all series then Outstanding to waive
compliance by the Company with certain restrictive provisions of the Indenture.
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
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing a
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direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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[LEGEND
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Trustee by The Depository Trust Company
(55 Water Street, New York, New York) or its successor (the "Depositary"), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative of
the Depositary to the Company or its agent for registration of transfer,
exchange or payment, and any certificate to be issued is registered in the name
of Cede & Co., or such other name as requested by an authorized representative
of the Depositary and any amount payable thereunder is made payable to Cede &
Co., or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
This Security may be exchanged for certificated Securities registered
in the names of the various beneficial owners hereof if (a) the Depositary is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, or (b) the Company
elects to issue certificated Securities to beneficial owners. Any such exchange
shall be made upon receipt by the Trustee of a Company Order therefor and
certificated Securities of this series shall be registered in such names and in
such denominations as shall be certified to the Company and the Trustee by the
Depositary.]