Exhibit 4(y)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of January 30, 1997 between Texas Utilities
Electric Company, a Texas corporation ("TU Electric"), and TU Electric Capital V
, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from TU Electric and to issue its 5.175%
Cumulative Capital Securities (the "Capital 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 January 30, 1997 as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, TU Electric is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of the Capital
Securities by each holder thereof, which acceptance TU Electric hereby agrees
shall benefit TU Electric and which acceptance TU Electric acknowledges will be
made in reliance upon the execution and delivery of this Agreement, TU Electric,
including in its capacity as holder of the Common Securities, and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by TU Electric. Subject to the terms and
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conditions hereof, TU Electric 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 Capital Securities the amounts due such
holders pursuant to the terms of the Capital 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 terminate and
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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 Capital Securities or any Beneficiary must restore payment of any sums
paid under the Capital Securities, under any Obligation, under the Guarantee
Agreement dated the date hereof by TU Electric 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. TU Electric hereby waives notice of
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acceptance of this Agreement and of any Obligation to which it applies or may
apply, and TU Electric 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, covenants, agreements
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and duties of TU Electric 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, TU Electric with respect to the happening of any
of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
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directly against TU Electric and TU Electric waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against TU Electric.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations, covenants and
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agreements contained in this Agreement shall bind the successors, assigns,
receivers, trustees and representatives of TU Electric and shall inure to the
benefit of the Beneficiaries and their successors and assigns.
Section 2.02. Amendment. So long as there remains any Beneficiary or
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any Capital 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 Securities.
Section 2.03. Notices. Any notice, request or other communication
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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:
TU Electric Capital
c/o Xxxxxx X. Xxxxxxx, Administrative Trustee
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Texas Utilities Electric Company
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CON STRUED 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 ELECTRIC COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer and Assistant Secretary
TU ELECTRIC CAPITAL V
By: /s/ Xxxxxx X. Xxxxxxx
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not in his individual capacity, but solely
as Administrative Trustee
