AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of December 30, 1998 between Texas
Utilities Company, a Texas corporation ("TUC"), and TXU Capital
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Trust
Securities (the "Common Trust Securities") to and receive
Debentures from TUC and to issue its 7-1/4% Cumulative Trust
Preferred Capital Securities (the "Preferred Trust Securities")
with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of
the Trust dated as of December 30, 1998 as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, TUC is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Preferred Trust Securities by each holder thereof, which
acceptance TUC hereby agrees shall benefit TUC and which
acceptance TUC acknowledges will be made in reliance upon the
execution and delivery of this Agreement, TUC, including in its
capacity as holder of the Common Trust Securities, and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by TUC. Subject to the terms
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and conditions hereof, TUC hereby irrevocably and unconditionally
assumes the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries"). As used herein, "Obligations" means any
indebtedness, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Preferred Trust
Securities the amounts due such holders pursuant to the terms of
the Preferred Trust Securities. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
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terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of
Preferred Trust Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Trust Securities,
under any Obligation, under the Guarantee Agreement dated the
date hereof by and between TUC and The Bank of New York, as
guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.03. Waiver of Notice. TUC hereby waives
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notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and TUC hereby waives presentment,
demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations,
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covenants, agreements and duties of TUC under this Agreement
shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, TUC with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
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this Agreement directly against TUC and TUC waives any right or
remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against TUC.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
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covenants and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives
of TUC and shall inure to the benefit of the Beneficiaries and
their successors and assigns.
Section 2.02. Amendment. So long as there remains any
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Beneficiary or any Preferred Trust Securities of any series shall
be outstanding, this Agreement shall not be modified or amended
in any manner adverse to such Beneficiary or to the holders of
the Preferred Trust Securities.
Section 2.03. Notices. Any notice, request or other
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communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
TXU Capital I
c/o Xxxxx Xxxxxxxx, Administrative Trustee
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Texas Utilities Company
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
TEXAS UTILITIES COMPANY
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer
TXU CAPITAL I
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
not in his individual
capacity, but solely
as Administrative Trustee
