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Exhibit 4(2)1
TXU ELECTRIC COMPANY
(formerly Texas Utilities Electric Company)
AND
TXU ELECTRIC DELIVERY COMPANY
TO
THE BANK OF NEW YORK,
(formerly Irving Trust Company)
Trustee under the Texas Utilities
Electric Company Mortgage and
Deed of Trust, dated as of
December 1, 1983
____________________
Sixty-third Supplemental Indenture
Providing among other things for Assumption of
said Mortgage and Deed of Trust by TXU Electric Delivery Company
Effective as of January 1, 2002
____________________
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This Instrument Grants a Security Interest by a Utility
This Instrument Grants After-Acquired Property Provisions
This Instrument Grants a Security Interest by a Utility
This Instrument Contains After-Acquired Property Provisions
SIXTY-THIRD SUPPLEMENTAL INDENTURE
________________________
INDENTURE, effective as of January 1, 2002, between TXU ELECTRIC COMPANY
(formerly Texas Utilities Electric Company), a corporation of the State of
Texas, whose address is Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000
(hereinafter sometimes called the Predecessor Company), TXU ELECTRIC DELIVERY
COMPANY, a corporation of the State of Texas, whose address is 0000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000 (hereinafter sometimes called the Successor
Company), and THE BANK OF NEW YORK (formerly Irving Trust Company), a
corporation of the State of New York, whose address is 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter sometimes called the Trustee), Trustee under
the Mortgage and Deed of Trust, dated as of December 1, 1983 (hereinafter called
the Original Indenture, the Original Indenture and any and all indentures and
instruments supplemental thereto being hereinafter sometimes collectively called
the Mortgage), which Original Indenture was executed and delivered by said Texas
Utilities Electric Company to secure the payment of bonds issued or to be issued
under and in accordance with the provisions of the Mortgage, reference to which
Mortgage is made, this Indenture (hereinafter called the Sixty-third
Supplemental Indenture) being supplemental thereto;
WHEREAS, said Original Indenture was recorded or filed as required in the
State of Texas; and
WHEREAS, the Predecessor Company executed and delivered to the Trustee the
following supplemental indentures:
Designation Dated as of
----------- -----------
First Supplemental Indenture ......................... April 1, 1984
Second Supplemental Indenture ........................ September 1, 1984
Third Supplemental Indenture ......................... April 1, 1985
Fourth Supplemental Indenture ........................ August 1, 1985
Fifth Supplemental Indenture ......................... September 1, 1985
Sixth Supplemental Indenture ......................... December 1, 1985
Seventh Supplemental Indenture ....................... Xxxxx 0, 0000
Xxxxxx Supplemental Indenture ........................ May 1, 1986
Ninth Supplemental Indenture ......................... October 1, 1986
Tenth Supplemental Indenture ......................... December 1, 1986
Eleventh Supplemental Indenture ...................... December 1, 1986
Twelfth Supplemental Indenture ....................... February 1,1987
Thirteenth Supplemental Indenture .................... March 1, 1987
Fourteenth Supplemental Indenture .................... April 1, 1987
Fifteenth Supplemental Indenture ..................... July 1, 1987
Sixteenth Supplemental Indenture ..................... September 1, 1987
2
Designation Dated as of
----------- -----------
Seventeenth Supplemental Indenture.................... October 1,1987
Eighteenth Supplemental Indenture..................... March 1, 1988
Nineteenth Supplemental Indenture..................... May 1, 1988
Twentieth Supplemental Indenture...................... September 1, 1988
Twenty-first Supplemental Indenture................... November 1, 1988
Twenty-second Supplemental Indenture.................. January 1, 1989
Twenty-third Supplemental Indenture................... August 1, 1989
Twenty-fourth Supplemental Indenture.................. November 1, 1989
Twenty-fifth Supplemental Indenture................... December 1, 1989
Twenty-sixth Supplemental Indenture................... February 1, 1990
Twenty-seventh Supplemental Indenture................. September 1, 1990
Twenty-eighth Supplemental Indenture.................. October 1, 1990
Twenty-ninth Supplemental Indenture................... October 1, 1990
Thirtieth Supplemental Indenture...................... March 1, 1991
Thirty-first Supplemental Indenture................... May 1, 1991
Thirty-second Supplemental Indenture.................. July 1, 1991
Thirty-third Supplemental Indenture................... February 1, 1992
Thirty-fourth Supplemental Indenture.................. April 1, 1992
Thirty-fifth Supplemental Indenture................... April 1, 1992
Thirty-sixth Supplemental Indenture................... June 1, 1992
Thirty-seventh Supplemental Indenture................. June 1, 1992
Thirty-eighth Supplemental Indenture.................. August 1, 1992
Thirty-ninth Supplemental Indenture................... October 1, 1992
Fortieth Supplemental Indenture....................... November 1, 1992
Forty-first Supplemental Indenture.................... December 1, 1992
Forty-second Supplemental Indenture................... March 1, 1993
Forty-third Supplemental Indenture.................... April 1, 1993
Forty-fourth Supplemental Indenture................... April 1, 1993
Forty-fifth Supplemental Indenture.................... May 1, 1993
Forty-sixth Supplemental Indenture.................... July 1, 1993
Forty-seventh Supplemental Indenture.................. October 1, 1993
Forty-eighth Supplemental Indenture................... November 1, 1993
Forty-ninth Supplemental Indenture.................... May 1, 1994
Fiftieth Supplemental Indenture....................... May 1, 1994
Fifty-first Supplemental Indenture.................... August 1, 1994
Fifty-second Supplemental Indenture................... April 1, 1995
Fifty-third Supplemental Indenture.................... June 1, 1995
Fifty-fourth Supplemental Indenture................... October 1, 1995
Fifty-fifth Supplemental Indenture.................... March 1, 1996
Fifty-sixth Supplemental Indenture.................... September 1, 1996
Fifty-seventh Supplemental Indenture.................. February 1, 1997
Fifty-eighth Supplemental Indenture................... July 1, 1997
Fifth-ninth Supplemental Indenture.................... March 1, 1999
Sixtieth Supplemental Indenture....................... December 1, 2000
3
Designation Dated as of
----------- -----------
Sixty-first Supplemental Indenture................... February 1, 2001
Sixty-second Supplemental Indenture.................. July 1, 2001
which supplemental indentures were or are to be recorded
or filed as required in the State of Texas; and
WHEREAS, by the Original Indenture, the Predecessor Company covenanted that
it would execute and deliver such supplemental indenture or indentures and such
further instruments and do such further acts as may be necessary or proper to
carry out more effectually the purposes of the Mortgage and to make subject to
the Lien of the Mortgage any property thereafter acquired and intended to be
subject to the Lien thereof; and
WHEREAS, in addition to the property described in the Original Indenture,
the Predecessor Company has acquired certain other property, rights and
interests in property; and
WHEREAS, the Predecessor Company has heretofore issued as of December 20,
2001, in accordance with the provisions of the Original Indenture, as heretofore
supplemented, the following series of First Mortgage and Collateral Trust Bonds
and First Mortgage Bonds:
Principal Principal Amount
Series Amount Issued Outstanding
------ --------------- --------------------
12% Series due March 1, 1985...................... $ 1,000,000 None
13 5/8% Series due April 1, 2014.................. 100,000,000 None
13 1/2% Series due September 1, 2014.............. 150,000,000 None
12 7/8% Series due April 1, 2015.................. 150,000,000 None
12% Series due August 1, 2015..................... 100,000,000 None
12% Series due September 1, 2015.................. 75,000,000 None
11 1/8% Series due December 1, 2015............... 150,000,000 None
9 3/8% Series due March 1, 2016................... 200,000,000 None
9 3/4% Series due May 1, 2016..................... 200,000,000 None
Pollution Control Series C........................ 70,000,000 None
Pollution Control Series D........................ 200,000,000 None
9 1/2% Series due December 1, 2016................ 300,000,000 None
9 1/4% Series due February 1, 2017................ 250,000,000 None
Pollution Control Series E........................ 100,000,000 None
10 1/2% Series due April 1, 2017.................. 250,000,000 None
9 1/2% Series due July 1, 1997.................... 150,000,000 None
10 1/2% Series due July 1, 2017................... 150,000,000 None
Pollution Control Series F........................ 55,000,000 None
Pollution Control Series G........................ 12,000,000 None
Pollution Control Series H........................ 112,000,000 None
Pollution Control Series I........................ 100,000,000 None
10 3/8% Series due May 1, 1998.................... 150,000,000 None
11 3/8% Series due May 1, 2018.................... 150,000,000 None
4
Principal Principal Amount
Series Amount Issued Outstanding
------ ------------- ----------------
Secured Medium-Term Notes, Series A ........................ $ 300,000,000 None
10.44% Series due November 1, 2008 ......................... 150,000,000 None
Pollution Control Series J ................................. 100,000,000 None
9 1/2% Series due August 1, 1999 ........................... 200,000,000 None
10% Series due August 1, 2019 .............................. 100,000,000 None
9 7/8% Series due November 1, 2019 ......................... 150,000,000 None
Secured Medium-Term Notes, Series B ........................ 150,000,000 $ 69,200,000
Pollution Control Series K ................................. 50,000,000 None
Pollution Control Series L ................................. 40,000,000 None
10 5/8% Series due September 1, 2020 ....................... 250,000,000 None
Secured Medium-Term Notes, Series C ........................ 150,000,000 None
8 1/4% Pollution Control Series due October 1, 2020 ........ 11,000,000 None
7 7/8% Pollution Control Series due March 1, 2021 .......... 100,000,000 None
9 3/4% Series due May 1, 2021 .............................. 300,000,000 None
Pollution Control Series M due June 1, 2021 ................ 86,250,000 None
Pollution Control Series N due June 1, 2021 ................ 57,500,000 None
Pollution Control Series O due June 1, 2021 ................ 57,500,000 None
Pollution Control Series P due June 1, 2021 ................ 115,000,000 None
8 1/8% Series due February 1, 2002 ......................... 150,000,000 150,000,000
8 7/8 % Series due February 1, 2022 ........................ 175,000,000 112,200,000
8 1/4% Series due April 1, 2004 ............................ 100,000,000 100,000,000
9% Series due April 1, 2022 ................................ 100,000,000 None
6 3/4% Pollution Control Series due April 1, 2022 .......... 50,000,000 None
7 1/8% Series due June 1, 1997 ............................. 150,000,000 None
8% Series due June 1, 2002 ................................. 147,000,000 147,000,000
6 5/8% Pollution Control Series due June 1, 2022 ........... 33,000,000 None
6 3/8% Series due August 1, 1997 ........................... 175,000,000 None
7 3/8% Series due August 1, 2001 ........................... 150,000,000 None
8 1/2% Series due August 1, 2024 ........................... 175,000,000 115,400,000
6.70% Pollution Control Series due October 1, 2022 ......... 16,935,000 None
6.55 % Pollution Control Series due October 1, 2022 ........ 40,000,000 None
7 3/8% Series due November 1, 1999 ......................... 100,000,000 None
8 3/4% Series due November 1, 2023 ......................... 200,000,000 102,550,000
6 1/2% Pollution Control Series due December 1, 2027 ....... 46,660,000 None
6 3/4% Series due March 1, 2003 ............................ 200,000,000 194,475,000
7 7/8% Series due March 1, 2023 ............................ 300,000,000 223,770,000
6.05% Pollution Control Series due April 1, 2025 ........... 90,000,000 None
6.10 % Pollution Control Series due April 1, 2028 .......... 50,000,000 None
5 7/8% Series due April 1, 1998 ............................ 175,000,000 None
6 3/4% Series due April 1, 2003 ............................ 100,000,000 95,000,000
7 7/8% Series due April 1, 2024 ............................ 225,000,000 132,743,000
Pollution Control Series due June 1, 2023 .................. 115,000,000 78,987,750
5
Principal Principal Amount
Series Amount Issued Outstanding
------ ------------- ----------------
5 3/4% Series due July 1, 1998 ............................. $ 150,000,000 None
6 3/4% Series due July 1, 2005 ............................. 100,000,000 $ 92,000,000
7 5/8% Series due July 1, 2025 ............................. 250,000,000 214,750,000
5 1/2% Series due October 1, 1998 .......................... 125,000,000 None
6 1/4% Series due October 1, 2004 .......................... 125,000,000 120,595,000
7 3/8% Series due October 1, 2025 .......................... 300,000,000 178,000,000
5 1/2% Pollution Control Series due May 1, 2022 ............ 50,000,000 None
5.55% Pollution Control Series due May 1, 2022 ............. 75,000,000 None
5.85% Pollution Control Series due May 1, 2022 ............. 33,465,000 None
Floating Rate Series due May 1, 1999 ....................... 300,000,000 None
Pollution Control Series Q due May 1, 2029 ................. 45,045,500 None
Pollution Control Series R due May 1, 2029 ................. 45,045,500 None
0% Series due 1994 ......................................... 1,013,831,000 None
Pollution Control Series S due April 1, 2030 ............... 58,270,500 None
Pollution Control Series T due April 1, 2030 ............... 18,400,000 None
Pollution Control Series U ................................. 136,108,250 None
Pollution Control Series V ................................. 136,108,250 None
Pollution Control Series W ................................. 13,857,500 None
Pollution Control Series X ................................. 21,246,250 None
Secured Medium-Term Notes, Series D ........................ 201,150,000 18,000,000
Pollution Control Series Y ................................. 28,819,000 None
Pollution Control Series Z ................................. 66,642,500 None
Pollution Control Series AA ................................ 28,750,000 None
Pollution Control Series AB ................................ 28,750,000 None
Pollution Control Series AC ................................ 70,397,250 None
Pollution Control Series AD ................................ 57,500,000 None
Pollution Control Series AE ................................ 57,500,000 None
Pollution Control Series AF ................................ 36,000,750 None
Pollution Control Series AG ................................ 28,801,750 None
Pollution Control Series AH ................................ 66,159,500 None
Pollution Control Series AI ................................ 118,507,500 None
Pollution Control Series AJ ................................ 27,600,000 None
Pollution Control Series AK ................................ 250,163,335 None
Floating Rate Series A due December 20, 2002 ............... 150,000,000 None
Floating Rate Series B due December 20, 2002 ............... 425,000,000 None
Collateral Series A ........................................ 3,839,650,000 None
Floating Rate Series C due June 15, 2003 ................... 400,000,000 400,000,000
; and
WHEREAS, Section 18.01 of the Original Indenture provides that, upon any
transfer by the Company of all or substantially all of the Mortgaged and Pledged
Property as an entirety to any corporation lawfully entitled to acquire the same
(herein sometimes called a Transfer), for the
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execution and delivery to the Trustee by the successor corporation of an
instrument in writing whereby the successor corporation shall expressly assume
the due and punctual payment of the principal and interest on the bonds issued
under the Mortgage according to their tenor and the due and punctual performance
and observance of all covenants and conditions of the Mortgage to be kept or
performed by the Company (hereinafter sometimes called an Assumption); and
WHEREAS, Section 18.02 of the Original Indenture provides upon (i) a
Transfer and (ii) upon executing with the Trustee and causing to be recorded a
supplemental indenture whereby a successor corporation shall assume and agree to
pay, duly and punctually, the principal of and interest on the bonds issued
under the Mortgage in accordance with the provisions of said bonds and the
Mortgage, and shall agree to perform and fulfill all the covenants and
conditions of the Mortgage to be kept or performed by the Company, the successor
corporation, to which the Company has transferred such Mortgaged and Pledged
Property as an entirety, shall succeed to and be substituted for the Company
with the same effect as if such successor corporation had been named therein,
and such successor corporation shall have and may exercise under the Mortgage
the same powers and rights as the Company; and
WHEREAS, on or before December 31, 2001, the generation assets and certain
other assets of the Predecessor Company will have been released from the Lien of
the Mortgage, leaving only transmission and distribution properties of the
Company as Mortgaged and Pledged Property; and
WHEREAS, effective as of January 1, 2002 (Effective Date), the Predecessor
Company will transfer substantially all of the Mortgaged and Pledged Property as
an entirety to the Successor Company subject to the Lien of the Mortgage upon
such terms as fully to preserve and in no respect to impair the Lien or security
of the Mortgage, or any of the rights or powers of the Trustee or the
bondholders thereunder, all subject to the limitations permitted by Article
XVIII of the Original Indenture and set forth herein; and
WHEREAS, notwithstanding such Transfer and Assumption, from and after the
Effective Date, the Predecessor Company will remain obligated to make payments
of the principal of, and premium, if any, and interest on, the bonds Outstanding
on the Effective Date in accordance with their respective terms if and to the
extent that the Successor Company fails to make such payments at the time and in
the manner provided for in such bonds, but the Predecessor Company shall not be
otherwise obligated under the Mortgage; and
WHEREAS, the Successor Company, pursuant to appropriate resolutions of its
Board of Directors, has authorized the execution of this Supplemental Indenture
to provide, among other things, for the assumption of the Mortgage by the
Successor Company in compliance with Article XVIII of the Original Indenture and
as hereinafter set forth; and
WHEREAS, the execution and delivery by the Predecessor Company and the
Successor Company of this Sixty-third Supplemental Indenture have been duly
authorized by appropriate resolutions of the Board of Directors of each such
company, respectively;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Successor Company, in
consideration of the premises and of Ten Dollars to it duly paid by the Trustee
at or before the
7
ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of both the principal of and
interest and premium, if any, on the bonds from time to time issued under the
Mortgage, according to their tenor and effect and the performance of all the
provisions of the Mortgage (including any instruments supplemental thereto and
any modification made as in the Mortgage provided) and of said bonds, by these
presents doth as of the Effective Date grant, bargain, sell, release, convey,
assign, transfer, mortgage, hypothecate, affect, pledge, set over and confirm
and grant a security interest in (subject, however, to Excepted Encumbrances as
defined in Section 1.06 of the Original Indenture) unto The Bank of New York,
Trustee under the Mortgage, and to its successor or successors in said trust,
and to said Trustee and its successors and assigns forever, all properties real,
personal and mixed, of the kind or nature specifically mentioned in the Original
Indenture, as heretofore supplemented, or of any other kind or nature acquired
by the Successor Company from the Predecessor Company (except any herein or in
the Original Indenture expressly excepted), including (a) those properties and
franchises acquired by the Successor Company from the Predecessor Company, and
improvements, extensions and additions thereto and renewals and replacements
thereof, (b) the property made and used by the Successor Company as the basis
under any of the provisions of the Mortgage for the authentication and delivery
of additional bonds or the withdrawal of cash or the release of property, and
(c) such franchises, repairs and additional property as may be acquired, made or
constructed by the Successor Company (i) to maintain, renew and preserve the
franchises covered by the Mortgage, or (ii) to maintain the property mortgaged
and intended to be mortgaged under the Mortgage as an operating system or
systems in good repair, working order and condition, or (iii) in rebuilding or
renewal of property subject to the lien of the Mortgage damaged or destroyed, or
(iv) in replacement of or substitution for machinery, apparatus, equipment,
frames, towers, poles, wire, pipe, tools, implements, or furniture, or any other
fixtures or personalty, subject to the lien of the Mortgage, which shall have
become old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable,
undesirable or unnecessary for use in the operation of the property mortgaged
and intended to be mortgaged under the Mortgage.
PROVIDED that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, hypothecated, affected, pledged, set over or confirmed hereunder, nor
is a security interest therein hereby or by the Original Indenture, as
heretofore supplemented, granted or intended to be granted, and the same are
hereby expressly excepted from the Lien and operation of the Original Indenture,
as heretofore supplemented, and from the Lien and operation of this Sixty-third
Supplemental Indenture, viz.: (1) cash, shares of stock, bonds, notes and other
obligations and other securities not hereinbefore or hereafter specifically
pledged, paid, deposited, delivered or held under the Mortgage or covenanted so
to be; (2) merchandise, equipment, apparatus, materials or supplies held for the
purpose of sale or other disposition in the usual course of business or for the
purpose of repairing or replacing (in whole or in part) any rolling stock,
buses, motor coaches, automobiles or other vehicles or aircraft or boats, ships,
or other vessels and any fuel, oil and similar materials and supplies consumable
in the operation of any of the properties of the Successor Company; rolling
stock, buses, motor coaches, automobiles and other vehicles and all aircraft;
boats, ships and other vessels; all timber, minerals, mineral rights and
royalties; (3) bills, notes and other instruments and accounts receivable,
judgments, demands, general intangibles and choses in action, and all contracts,
leases and operating agreements not specifically pledged hereunder or under the
Mortgage or covenanted so to be; (4) the last day of the term of any lease or
leasehold which may hereafter become subject to the Lien of the
8
Mortgage; (5) electric energy, gas, water, steam, ice, and other materials or
products generated, manufactured, produced, or purchased by the Successor
Company for sale, distribution or use in the ordinary course of its business;
(6) any natural gas xxxxx or natural gas leases or natural gas transportation
lines or other works or property used primarily and principally in the
production of natural gas or its transportation, primarily for the purpose of
sale to natural gas customers or to a natural gas distribution or pipeline
Successor Company, up to the point of connection with any distribution system;
(7) the Successor Company's franchise to be a corporation; and (8) properties or
franchises owned by the Successor Company as of the Effective Date or thereafter
acquired (by purchase, consolidation, merger, donation, construction, erection
or in any other way), except (a) those acquired by it from the Predecessor
Company, and improvements, extensions and additions thereto and renewals and
replacements thereof, (b) the property made and used by the Successor Company as
the basis under any of the provisions of the Mortgage for the authentication and
delivery of additional bonds or the withdrawal of cash or the release of
property, and (c) such franchises, repairs and additional property as may be
acquired, made or constructed by the Successor Corporation (i) to maintain,
renew and preserve the franchises covered by the Mortgage, or (ii) to maintain
the property mortgaged and intended to be mortgaged under the Mortgage as an
operating system or systems in good repair, working order and condition, or
(iii) in rebuilding or renewal of property subject to the Lien of the Mortgage
damaged or destroyed, or (iv) in replacement of or substitution for machinery,
apparatus, equipment, frames, towers, poles, wire, pipe, tools, implements or
furniture, or any other fixtures or personalty, subject to the Lien of the
Mortgage, which shall have become old, inadequate, obsolete, worn out, unfit,
unadapted, unserviceable, undesirable or unnecessary for use in the operation of
the property mortgaged and intended to be mortgaged under the Mortgage;
provided, however, that the property and rights expressly excepted from the Lien
and operation of the Original Indenture and this Sixty-third Supplemental
Indenture in the above subdivisions (2) and (3) shall (to the extent permitted
by law) cease to be so excepted in the event and as of the date that the Trustee
or a receiver or trustee shall enter upon and take possession of the Mortgaged
and Pledged Property in the manner provided in Article XV of the Original
Indenture by reason of the occurrence of a Default.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged,
hypothecated, affected, pledged, set over or confirmed or in which a security
interest has been granted by the Successor Company as aforesaid, or intended so
to be (subject, however, to Excepted Encumbrances as defined in Section 1.06 of
the Original Indenture), unto The Bank of New York, Trustee, and its successors
and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms,
trusts and conditions and subject to and with the same provisos and covenants as
are set forth in the Original Indenture, as heretofore supplemented, this
Sixty-third Supplemental Indenture being supplemental to the Original Indenture.
AND IT IS HEREBY COVENANTED by the Successor Company that all the terms,
conditions, provisos, covenants and provisions contained in the Original
Indenture, as heretofore supplemented, shall affect and apply to the property
hereinbefore described and conveyed and to the estate, rights, obligations and
duties of the Successor Company and the Trustee and the beneficiaries of the
trust with respect to said property, and to the Trustee and its successors as
Trustee of said property, in the same manner and with the same effect as if said
property had been owned by the
9
Successor Company at the time of the execution of the Original Indenture, and
had been specifically and at length described in and conveyed to said Trustee by
the Original Indenture as a part of the property therein stated to be conveyed.
AND THIS INDENTURE FURTHER WITNESSETH:
That in order to provide for the transfer by the Predecessor Company of
substantially all of the Mortgaged and Pledged Property as an entirety to the
Successor Company under the Mortgage, the Successor Company, TXU ELECTRIC
DELIVERY COMPANY, does hereby covenant and agree to and with THE BANK OF NEW
YORK, as Trustee under the Mortgage, and its successor or successors in trust
under the Mortgage, as follows:
ARTICLE I.
PROVISIONS RELATING TO ARTICLE XVIII OF THE MORTGAGE
SECTION 1.1 The Successor Company does as of the Effective Date hereby
expressly assume and agree to (i) the due and punctual payment of the principal
and interest of all bonds issued under the Mortgage according to their tenor and
(ii) the due and punctual performance and observance of all the covenants and
conditions of the Mortgage to be kept or performed by the Predecessor Company;
provided, however, that, notwithstanding the foregoing assumption and agreement
of the Successor Company, the Predecessor Company hereby remains obligated to
make payments of the principal of, and premium, if any, and interest on, the
bonds Outstanding on the Effective Date in accordance with their respective
terms if and to the extent that the Successor Company fails to make such
payments at the time and in the manner provided for in such bonds.
SECTION 1.2 It is hereby declared that, in accordance with the provisions
of Section 18.02 of the Original Indenture, the Successor Company, having
expressly assumed and agreed to (i) the due and punctual payment of the
principal and interest of all bonds issued under the Mortgage according to their
tenor and (ii) the due and punctual performance and observance of all the
covenants and conditions of the Mortgage to be kept or performed by the
Predecessor Company and upon this Sixty-third Supplemental Indenture being
recorded, shall succeed to and be substituted for the Predecessor Company as of
the Effective Date with the same effect as if the Successor Company had been
named therein, and the Successor Company shall have and may exercise under the
Mortgage the same powers and rights as the Predecessor Company.
SECTION 1.3 It is hereby also declared that, in accordance with the
provisions of Section 18.03 of the Original Indenture, the Mortgage, including
this Sixty-third Supplemental Indenture, shall not become or be required to
become a lien upon any of the properties or franchises now owned or hereafter
acquired by the Successor Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) except (a) those acquired by the
Successor Company from the Predecessor Company, and improvements, extensions and
additions thereto and renewals and replacements thereof, (b) the property made
and used by the Successor Company as the basis under any of the provisions of
the Mortgage for the authentication and
10
delivery of additional bonds or the withdrawal of cash or the release of
property, and (c) such franchises, repairs and additional property as may be
acquired, made or constructed by the Successor Company (i) to maintain, renew
and preserve the franchises covered by the Mortgage, or (ii) to maintain the
property mortgaged and intended to be mortgaged under the Mortgage as an
operating system or systems in good repair, working order and condition, or
(iii) in rebuilding or renewal of property subject to the lien of the Mortgage
damaged or destroyed, or (iv) in replacement of or substitution for machinery,
apparatus, equipment, frames, towers, poles, wire, pipe, tools, implements or
furniture, or any other fixtures or personalty, subject to the lien of the
Mortgage, which shall have become old, inadequate, obsolete, worn out, unfit,
unadapted, unserviceable, undesirable or unnecessary for use in the operation of
the property mortgaged and intended to be mortgaged under the Mortgage.
The Mortgage, including this Sixty-third Supplemental Indenture, by reason
of the after acquired property clauses or similar provisions contained in the
Mortgage shall not extend, after the Effective Date, to any of the properties or
franchises owned by the Successor Company immediately prior to the Effective
Date, unless the Successor Company thereafter expressly mortgages or pledges
such properties or franchises under the Mortgage.
The lien of the Mortgage shall not extend to any properties or franchises,
now owned or hereafter acquired, of the type or nature excepted from the lien of
the Mortgage unless the Successor Company hereafter expressly mortgages or
pledges such properties or franchises under the Mortgage, and except for
property or franchises of the type or nature referred to in clauses (a), (b)
and/or (c) of Section 1.3 hereof.
The lien of the Mortgage shall not extend to any property or franchises
heretofore or hereafter released from the lien of the Mortgage pursuant to the
provisions of the Mortgage unless the Successor Company hereafter expressly
mortgages or pledges such property or franchises under the Mortgage, except for
any interest in any such property or franchises re-acquired by the Predecessor
Company subsequent to any such release and owned by the Predecessor Company on
the Effective Date, except for property or franchises of the type or nature
referred to in clauses (a), (b) and/or (c) of Section 1.3 hereof, and except for
any interest in any such property or franchises re-acquired by the Successor
Company subsequent to any such release.
ARTICLE II.
MISCELLANEOUS PROVISIONS
SECTION 2.1 Subject to the amendments provided for in this Sixty-third
Supplemental Indenture, the terms defined in the Original Indenture, as
heretofore supplemented, shall for all purposes of this Sixty-third Supplemental
Indenture have the meanings specified in the Original Indenture, as heretofore
supplemented.
SECTION 2.2 The Trustee hereby accepts the trusts herein declared,
provided, created or supplemented and agrees to perform the same upon the terms
and conditions herein and in the Original Indenture, as heretofore supplemented,
set forth and upon the following terms and conditions:
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The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Sixty-third Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by the Predecessor Company and the Successor Company solely.
In general, each and every term and condition contained in Article XIX of the
Original Indenture shall apply to and form part of this Sixty-third Supplemental
Indenture with the same force and effect as if the same were herein set forth in
full with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this Sixty-third
Supplemental Indenture.
SECTION 2.3 Whenever in this Sixty-third Supplemental Indenture any one of
the parties hereto is named or referred to, this shall, subject to the
provisions of Articles XVIII and XIX of the Original Indenture, be deemed to
include the successors and assigns of such party, and all the covenants and
agreements in this Sixty-third Supplemental Indenture contained, by or on behalf
of the Predecessor Company or the Successor Company, or by or on behalf of the
Trustee, shall, subject as aforesaid, bind and inure to the respective benefits
of the respective successors and assigns of such parties, whether so expressed
or not.
SECTION 2.4 Nothing in this Sixty-third Supplemental Indenture expressed or
implied, is intended, or shall be construed, confer upon, or to give to, any
person, firm or corporation, other than the parties hereto and the holders of
the bonds and coupons Outstanding under the Mortgage, any right, remedy or claim
under or by reason of this Sixty-third Supplemental Indenture or any covenant,
condition, stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this Sixty-third
Supplemental Indenture contained, by or on behalf of the Predecessor Company and
the Successor Company, shall be for the sole and exclusive benefit of the
parties hereto, and of the holders of the bonds and coupons Outstanding under
the Mortgage.
SECTION 2.5 This Sixty-third Supplemental Indenture shall be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, TXU ELECTRIC COMPANY has caused its corporate name to
be hereunto affixed, and this instrument to be signed and sealed by its Chairman
of the Board and Chief Executive, President or one of its Vice Presidents, and
its corporate seal to be attested by its Secretary or one of its Assistant
Secretaries for and in its behalf, TXU ELECTRIC DELIVERY COMPANY has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by its Chairman of the Board and Chief Executive, President or one of its
Vice Presidents, and its corporate seal to be attested by its Secretary or one
of its Assistant Secretaries for and in its behalf, and THE BANK OF NEW YORK has
caused its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by one of its Vice Presidents or Assistant Vice Presidents and
its corporate seal to be attested by one of its Vice Presidents, Assistant Vice
Presidents, Assistant Secretaries or Assistant Treasurers, all as of the day and
year first above written.
TXU ELECTRIC COMPANY
By /s/ Xxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx
Vice President
Attest:
/s/ Xxxx Xxxxxxxx, Jr.
--------------------------------------
Xxxx Xxxxxxxx, Jr.
Assistant Secretary
Executed, sealed and delivered by
TXU ELECTRIC COMPANY
in the presence of:
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------
/s/ Xxxxx X. Stem
--------------------------------------
13
TXU ELECTRIC DELIVERY COMPANY
By /s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
Vice President
Attest:
/s/ Xxxx Xxxxxxxx, Jr.
--------------------------------------
Xxxx Xxxxxxxx, Jr.
Assistant Secretary
Executed, sealed and delivered by
TXU ELECTRIC DELIVERY COMPANY
in the presence of:
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------
/s/ Xxxxx X. Stem
--------------------------------------
14
THE BANK OF NEW YORK,
Trustee
By /s/Xxxx X. Xxxxx
------------------------
Xxxx X. Xxxxx
Vice President
Attest:
/s/ Xxxx XxXxxxxx
---------------------------
Xxxx XxXxxxxx
Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK
in the presence of:
/s/ Xxxx Xxxxxx
---------------------------
/s/ Xxxxx Xxxxxx
---------------------------
15
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS )
Before me, a Notary Public in and for said State, on this day personally
appeared Xxxx X. Xxxxxx, known to me to be the person whose name is subscribed
to the foregoing instrument and known to me to be a Vice President of TXU
ELECTRIC COMPANY, a Texas corporation, and acknowledged to me that said person
executed said instrument for the purposes and consideration therein expressed,
and as the act of said corporation.
Given under my hand and seal of office this 21st day of December, 2001.
--
/s/ Xxxxx Xxxxxx
-----------------------------------
XXXXX XXXXXX
Notary Public, State of Texas
My Commission Expires February 26, 0000
00
XXXXX XX XXXXX )
) SS.:
COUNTY OF DALLAS )
Before me, a Notary Public in and for said State, on this day personally
appeared Xxxx X. Xxxxxx, known to me to be the person whose name is subscribed
to the foregoing instrument and known to me to be a Vice President of TXU
ELECTRIC DELIVERY COMPANY, a Texas corporation, and acknowledged to me that said
person executed said instrument for the purposes and consideration therein
expressed, and as the act of said corporation.
Given under my hand and seal of office this 21st day of December, 2001.
--
/s/ Xxxxx Xxxxxx
-----------------------------------
XXXXX XXXXXX
Notary Public, State of Texas
My Commission Expires February 26, 0000
00
XXXXX XX XXX XXXX )
) SS.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said State, on this day personally
appeared XXXX X. XXXXX, known to me to be the person whose name is subscribed to
the foregoing instrument and known to me to be a Vice President of THE BANK OF
NEW YORK, a New York corporation, and acknowledged to me that said person
executed said instrument for the purposes and consideration therein expressed,
and as the act of said corporation.
Given under my hand and seal of office this 21/st/ day of December, 2001.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
XXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 16, 2002
18
