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EXHIBIT 4(b)
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TRUST INDENTURE, SECURITY AGREEMENT AND MORTGAGE
SUPPLEMENT NO. 1
Dated as of October 25, 1995
Among
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
Not in its individual capacity,
except to the extent set forth in the Indenture, but
as Owner Trustee under the Trust Agreement
TEXAS UTILITIES ELECTRIC COMPANY
and
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
Indenture Trustee
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MASTER FORM RECORDED
BY AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO,
INDENTURE TRUSTEE
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TRUST INDENTURE, SECURITY AGREEMENT AND MORTGAGE
SUPPLEMENT NO. 1
This Trust Indenture, Security Agreement and Mortgage
Supplement No. 1, dated as of October 25, 1995 ("Supplement No. 1"), among
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, a national banking association
(not in its individual capacity except to the extent set forth in the Indenture
(as defined below) but as owner trustee under the Trust Agreement dated as of
December 1, 1988, as amended and supplemented (the "Trust Agreement"), between
the Owner Participant and Shawmut Bank Connecticut, National Association, as
Owner Trustee (the "Owner Trustee"), and TEXAS UTILITIES ELECTRIC COMPANY ("TU
Electric"), and AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national
banking association, as trustee for the benefit of the Holders of the Bonds
(the "Indenture Trustee").
RECITALS.
A. The Owner Trustee executed and delivered to the Indenture
Trustee the Trust Indenture, Security Agreement and Mortgage dated as of
December 1, 1989 (the "Original Indenture") filed of record in Vol. 1271
commencing on Page 566 of the Deed of Trust Records of Hood County, Texas and
in Vol. 163 commencing on Page 485 of the Official Public Records in Ward
County, Texas, (the Original Indenture as hereafter amended, modified or
supplemented from time to time, being hereinafter referred to as the
"Indenture"), the entirety of which is hereby incorporated by reference
pursuant to Section 12.009 of the Texas Property Code; and
B. Pursuant to the Indenture, the Owner Trustee granted,
conveyed, assigned, transferred, mortgaged and pledged to the Indenture Trustee
and its successors and assigns, and created a security interest in favor of the
Indenture Trustee and its successors and assigns in, the property, rights and
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privileges described in the Indenture to secure both the payment of all
indebtedness of the Owner Trustee as described in the Indenture and the
performance of all of the Owner Trustee's obligations described in the
Indenture; and
C. Sections 2.15 and 11.01 of the Indenture provide, among
other things, that the Owner Trustee, TU Electric and the Indenture Trustee may
enter into indentures supplemental to the Indenture for, among other things,
the purpose of establishing the form of Bonds of any series as permitted by
Sections 2.15 and 11.01 of the Indenture; and
D. On September 21, 1995, pursuant to a letter of instruction
dated September 20, 1995 from the Owner Participant to the Owner Trustee, the
Owner Trustee (i) exercised its option to redeem on October 25, 1995 all of the
$81,595,000 principal amount of Initial Series Bonds with a Stated Maturity of
January 1, 2018 and (ii) gave notice of such optional redemption to the
Indenture Trustee pursuant to Section 6.03 of the Indenture. On September 22,
1995, pursuant to Section 6.05 of the Indenture, the Indenture Trustee gave
notice of such optional redemption to each Holder of the Initial Series Bonds
with a Stated Maturity of January 1, 2018; and
E. The Owner Trustee desires to authorize the issuance of
$81,595,000 aggregate principal amount of its Bonds (the "1995 Series Bonds")
under the Indenture, including this Supplement No. 1.
NOW, THEREFORE, THIS SUPPLEMENT NO. 1 WITNESSETH that, in
order to establish the form and terms of and to authorize the authentication
and delivery of the 1995 Series Bonds, and in consideration of the acceptance
of the 1995 Series Bonds by the registered owners (the "Holders") thereof and
of the sum of one dollar duly paid to the Owner Trustee by the Indenture
Trustee at the execution of these presents, the receipt and sufficiency of
which are hereby acknowledged, the Owner Trustee covenants and agrees with the
Indenture Trustee, for the equal and proportionate benefit of the respective
Holders from time to time of the 1995 Series Bonds, as follows:
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ARTICLE ONE
1995 SERIES BONDS
SECTION 1.01. Terms of the 1995 Series Bonds.
There is hereby created a series of Bonds designated "Secured
Facility Bonds, 1995 Series". 1995 Series Bonds in the aggregate amount of
$81,595,000 may forthwith be executed by the Owner Trustee and delivered to the
Indenture Trustee in accordance with the provisions of Section 2.12 of the
Indenture in the principal amount of $81,595,000 with the Stated Maturity of
January 1, 2017 and at the interest rate of 7.48%.
The 1995 Series Bonds shall be payable, bear interest and have
and be subject to such other terms as provided in the form of 1995 Series Bond
attached as Exhibit A hereto and shall have and be subject to such other terms
as are provided in the Indenture. The term "Record Date" as used with respect
to any Interest Payment Date or Installment Payment Date (except a date for
payment of Defaulted Interest or Defaulted Installment) shall mean, with
respect to the 1995 Series Bonds, the December 15 or June 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date or
Installment Payment Date, as the case may be. "Defaulted Installment" shall
mean any unpaid installment payment of principal of a 1995 Series Bond in
respect of which the Owner Trust shall default in the payment when due on an
Installment Payment Date.
All references in the Indenture to the principal amount of
Bonds shall, when used with respect to the 1995 Series Bonds, mean the unpaid
principal amount thereof, except that, for purposes of Section 2.06, and 2.07
and 6.08 of the Indenture, principal amount shall, when used with respect to
the 1995 Series Bonds, refer to Original Principal Amount.
SECTION 1.02. Mandatory Redemption of the 1995 Series Bonds.
(a) Mandatory Redemption - Obsolescence. The 1995 Series
Bonds shall be subject to redemption in whole but not in part, at 100% of the
unpaid principal amount thereof, together with interest accrued to the
Redemption Date, upon the receipt of payment of the applicable purchase price
or Termination Value
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resulting from a termination of the Lease pursuant to Section 7 thereof.
(b) Mandatory Redemption - Event of Loss. The 1995 Series
Bonds shall be subject to redemption, at 100% of the unpaid principal amount
thereof, together with interest accrued to the Redemption Date upon the receipt
of the applicable payment of Casualty Value resulting from an Event of Loss
under the Lease (unless, in connection with an Event of Loss described in
clause (e) of the definition thereof, TU Electric assumes the 1995
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Series Bonds then Outstanding pursuant to Section 2.16 of the Indenture), in
the principal amount equal to the product of (i) the aggregate unpaid principal
amount of 1995 Series Bonds then Outstanding and (ii) a fraction the numerator
of which is the Purchase Price of the Facility to which such Event of Loss
pertains and the denominator of which is the aggregate Purchase Price of the
Facilities then subject to the Lien of the Indenture. The aggregate amount
payable upon a partial redemption pursuant to this subsection 1.02(b) shall be
allocated among the Holders of 1995 Series Bonds pro rata, in proportion, as
nearly as practicable, to the respective unpaid principal amount of 1995 Series
Bonds held by such Holders, and upon payment of the applicable redemption price
to the Holders in accordance with the Indenture, the unpaid principal amount of
each 1995 Series Bond recorded on the Bond Register maintained by the Indenture
Trustees shall be controlling.
(c) Installment Payments. On each Installment Payment Date,
the Holder of a 1995 Series Bond will receive a payment of principal equal to
the Installment Payment Percentage for such Installment Payment Date multiplied
by the Original Principal Amount of such 1995 Series Bond. The payments of
principal installments pursuant to this subsection 1.02(c) shall not be deemed
to be subject to Article 6 or Article 7 of the Indenture.
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Installment Installment
Payment Date Payment Percentage
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July 1, 2006 0.87505%
July 1, 2007 4.69759%
July 1, 2008 6.00895%
July 1, 2009 7.24187%
July 1, 2010 6.70139%
July 1, 2011 7.01146%
January 1, 2012 0.00735%
July 2012 11.17593%
January 1, 2013 0.92040%
July 1, 2013 11.50806%
January 1, 2014 1.50622%
July 1, 2014 11.87450%
January 1, 2015 2.12636%
July 1, 2015 12.27771%
January 1, 2016 2.78448%
July 1, 2016 12.72137%
January 1, 2017 0.56131%
In the event that there shall have been any partial redemption
of 1995 Series Bonds (other than pursuant to principal installment payments),
each Installment Payment Amount for each 1995 Series Bond subsequent to such
redemption shall be reduced by an amount equal to the amount obtained by (i)
multiplying such Installment Payment Amount as in effect prior to such
redemption by a fraction of which the numerator shall be the aggregate
principal amount of 1995 Series Bonds redeemed pursuant to such partial
redemption, and the denominator shall be the aggregate unpaid principal amount
of 1995 Series Bonds Outstanding immediately prior to such redemption.
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ARTICLE TWO
AMENDMENT OF INDENTURE
SECTION 2.01. Amendments.
(a) Appendix A. Appendix A to the Indenture is hereby amended
to read, in its entirety, as set forth in Appendix A attached hereto.
(b) Section 2.09. The first sentence of the second paragraph
of Section 2.09 of the Indenture is hereby amended to read, in its entirety, as
follows: "Except as otherwise provided in a supplemental indenture creating a
series of Bonds or in the terms of such series of Bonds, principal of and
premium, if any, on Bonds shall be payable to the Holders of such bonds upon
presentation and surrender at the office or agency for payment of Bonds
maintained pursuant to Section 9.14."
(c) Section 3.01. Section 3.01 of the Indenture is
hereby amended by deleting such section in its entirety and inserting in lieu
thereof the following:
SECTION 3.01. Satisfaction and Discharge of Indenture.
With respect to Bonds of any series of a particular
Stated Maturity, if at any time (a) the principal of and premium (if any) and
interest on all of the Bonds of such series with such Stated Maturity
Outstanding hereunder shall have been paid or (b) all of the Bonds of such
series with such Stated Maturity theretofore authenticated (other than any such
Bonds which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.08 hereof) shall have been delivered
to the Indenture Trustee for cancellation or (c) there shall have been
irrevocably deposited with the Indenture Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Indenture Trustee or any Paying
Agent to the Owner Trustee in accordance with Section 5.03 hereof) necessary to
pay, or direct obligations of the United States of America, backed by its full
faith and credit, maturing as to principal and premium (if any) and interest in
such amounts and at such times as will ensure the availability of cash
sufficient to pay, at the Stated Maturity and all mandatory
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Sinking Fund payment dates or Installment Payment Dates, if any, of principal
of, premium (if any) and interest thereon or upon redemption of all such Bonds
(the Owner Trustee hereby agreeing that it will deliver to the Indenture
Trustee, at the time such cash or obligations are deposited, an Owner Trustee
Certificate irrevocably specifying any such Redemption Date or Dates) not
theretofore delivered to the Indenture Trustee for cancellation, the principal
of, premium (if any) and interest due or to become due to such Stated Maturity
dates or Redemption Date or Redemption Dates, as the case may be (provided
that, with respect to the deposit specified in (c), there shall be delivered to
the Indenture Trustee an Opinion of Counsel satisfactory in form to the
Indenture Trustee, to the effect that the Holders of such Bonds will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit of certain obligations and such defeasance and will be subject to
Federal income tax of the same amount and in the same manner and at the same
times, as would have been the case if such deposit and defeasance had not
occurred), and if, in any such case, all other sums payable hereunder with
respect to such Bonds shall have been paid, then this Indenture shall cease to
be of further effect with respect to such Bonds (except as to (i) rights of
registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Bonds, (iii) rights of Holders to receive payments of
principal thereof and premium (if any) and interest thereon upon the Stated
Maturity thereof, upon each Installment Payment Date, or upon such Redemption
Date or Redemption Dates, as the case may be (but not upon acceleration), (iv)
rights, obligations and immunities of the Indenture Trustee hereunder, (v)
rights of such Bondholders under this Article Three and (vi) the right, in the
case of such Bonds for which a Redemption Date has not been specified, of the
Owner Trustee to optionally redeem such Bonds pursuant to Article Six), and the
Indenture Trustee, on demand of and at the cost and expense of the Owner
Trustee and upon delivery to the Indenture Trustee of an Owner Trustee
Certificate and an Opinion of Counsel for the Owner Trustee, each containing
the statements provided for in Section 1.02 and stating that all conditions
precedent to the satisfaction and discharge of this Indenture have been
complied with, with respect to such Bonds, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture and the
Lien hereof (except as provided in this Article Three) with respect to such
Bonds except as aforesaid.
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If this Indenture is satisfied and discharged with respect to
the Bonds of any series of a particular Stated Maturity and such Bonds will not
become due and payable in full at Maturity or upon redemption (pursuant to a
notice of redemption duly given to the Holders of such Bonds) within 60 days
from the date of deposit pursuant to Section 3.01 hereof, the Indenture Trustee
shall, as soon as practicable after the date of such deposit and not more than
60 days or less than 30 days before each date of Maturity or Redemption Date,
mail notice by first-class mail, postage prepaid, to the Holders of such Bonds
at their last addresses as they shall appear upon the Bond Register, stating
that the deposit required by Section 3.01 hereof has been made with the
Indenture Trustee and that such Bonds are no longer entitled to the benefits of
and security provided by this Indenture except as provided above and with
respect to the cash and direct obligations deposited with the Indenture Trustee
and stating the Maturity, Installment Payment Dates, or Redemption Date or
Dates upon which moneys are to be available for the payment of the principal
of, premium (if any) and interest on such Bonds and stating that such Bond is
no longer otherwise mandatorily redeemable and stating that, in the case of
such Bonds for which a Redemption Date has not been specified, such Bonds
remain optionally redeemable.
(d) Section 6.04. The second paragraph of Section 6.04 of
the Indenture is hereby amended by adding the following sentence to the end
thereof: "Notwithstanding anything to the contrary contained in this paragraph,
a supplemental indenture creating a series of Bonds may specify that such Bonds
are subject to partial redemption on a pro rata basis without the necessity of
presentment and surrender of such Bond."
(e) Subsection 6.06(b). Subsection 6.06(b) of the Indenture
is hereby deleted in its entirety and the following inserted in its place: "(b)
[Intentionally Left Blank]".
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(f) Section 7.02. Section 7.02 of the Indenture is hereby
amended by deleting the proviso at the end of the first paragraph thereof.
(g) Section 7.03(b). Subsection 7.03(b) of the Indenture is
hereby deleted in its entirety and the following inserted in its place: "(b)
[Intentionally Left Blank]".
(h) Section 11.02. Section 11.02 of the Indenture is
hereby amended by deleting clause (1) of the proviso to the first paragraph
thereof in its entirety and inserting, in lieu thereof, the following:
change the Stated Maturity of the principal of, or any
installment of interest on, or any Installment Payment Date, or the dates or
circumstances of payment of premium (if any) on, any Bond, or reduce the
principal amount thereof or the interest thereon or any amount payable at
maturity, on any Installment Payment Date or upon the redemption thereof, or
change the circumstances for redemption or change the Place of Payment where,
or the coin or currency in which, any Bond or the premium (if any) or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment of principal or interest on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date) or such payment of premium (if any) on or after the date such premium
becomes due and payable or change the dates or the amounts of any installment
payments of principal or payments to be made through the operation of the
Sinking Fund in respect of a Bond of any series, or
ARTICLE THREE
MISCELLANEOUS
SECTION 3.01. New York Contract.
THIS SUPPLEMENT NO. 1 AND THE 1995 SERIES BONDS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.02. Provisions Binding on Successors.
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All the covenants, agreements, representations and warranties
in this Supplement No. 1 by the Indenture Trustee, TU Electric and the Owner
Trustee shall bind and, to the extent permitted by the Indenture shall inure to
the benefit of and be enforceable by their respective successors and assigns,
whether so expressed or not.
SECTION 3.03. Definitions.
Capitalized terms used herein without definition shall have
the respective meanings set forth in the Indenture.
SECTION 3.04. Counterparts.
This Supplement No. 1 may be executed in separate
counterparts, each of which when so executed and delivered is an original, but
all such counterparts shall together constitute but one and the same
supplement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplement No. 1 to be duly executed by their respective officers thereunto
duly authorized, as of the day and year first above written.
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, not in its individual
capacity except to the extent set forth
in the Indenture, but as Owner Trustee
under the Trust Agreement
Attest: By: /s/Steven Cimalore
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Name: Steven Cimalore
Title: Vice President
TEXAS UTILITIES ELECTRIC COMPANY
Attest: By: /s/H. Dan Farell
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Name: H. Dan Farell
Title: Senior Vice President
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO,
Indenture Trustee
Attest: By: /s/John P. Porzuczek
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Name: John P. Porzuczek
Title: Trust Officer
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ACKNOWLEDGMENT
STATE OF CONNECTICUT )
) ss.:
COUNTY OF HARTFORD )
On this ___ day of ___________, 1995 before me, a Notary
Public duly commissioned, qualified and acting within and for the County and
State aforesaid, appeared in person the within named ______________________,
Vice President of SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, to me
personally known, who stated that he was duly authorized in his capacity to
execute the foregoing instrument for and in its name and on its behalf, and
further stated and acknowledged that he had so signed, executed and delivered
the foregoing instrument, as Shawmut Bank Connecticut, National Association,
not in its individual capacity except as set forth in the Indenture, but as
Owner Trustee under the Trust Agreement, for the consideration, use and
purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal.
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(Notary Public)
My Commission Expires:
(SEAL)
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ACKNOWLEDGMENT
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On this __ day of ____, 1995 before me, a Notary Public duly
commissioned, qualified and acting within and for the County and State
aforesaid, appeared in person the within named __________________ of TEXAS
UTILITIES ELECTRIC COMPANY, to me personally known, who stated that he was duly
authorized in his capacity to execute the foregoing instrument for and in its
name and on its behalf, and further stated and acknowledged that he had so
signed, executed and delivered the foregoing instrument, as TEXAS UTILITIES
ELECTRIC COMPANY, for the consideration, uses and purposes therein mentioned
and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal.
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(Notary Public)
My Commission Expires:
(SEAL)
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ACKNOWLEDGMENT
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this ___ day of ___________, 1995 before me, a Notary
Public duly commissioned, qualified and acting within and for the County and
State aforesaid, appeared in person the within named ________________________
of AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, to me personally known,
who stated that he was duly authorized in his capacity to execute the foregoing
instrument for and in its name and on its behalf, and further stated and
acknowledged that he had so signed, executed and delivered the foregoing
instrument, as American National Bank and Trust Company of Chicago, Indenture
Trustee, for the consideration, uses and purposes therein mentioned and set
forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal.
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(Notary Public)
My Commission Expires:
(SEAL)
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