Exhibit 4(d)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between Texas
Utilities Electric Company, a Texas corporation ("TU Electric"),
and TU Electric Capital II, 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 ___% Trust Originated Preferred
Securities, Series A (the "Preferred 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 ________ __, 1995 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 by
each holder of the Preferred Securities, 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
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the terms and 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 (i) obligations of the Trust to pay to holders of any
Preferred Securities or other similar interests in the Trust the
amounts due such holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be
and (ii) obligations arising out of the negligence, willful
misconduct or bad faith of the Trustees of the Trust. 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 Securities or any Beneficiary must restore payment of
any sums paid under the Preferred 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
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waives notice of 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,
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covenants, agreements 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.
There shall be no obligation of the Beneficiaries 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
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this Agreement 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 guarantees 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.
Section 2.02. Amendment. So long as there remains any
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Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred 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:
TU Electric Capital II
c/o [Trustee]
Facsimile No.:
Attention:
Texas Utilities Electric Company
Facsimile No.:
Attention:
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 ELECTRIC COMPANY
By:
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Name:
Title:
TU ELECTRIC CAPITAL II
By:
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Xxxxx Xxxxxxxxx
not in his individual
capacity, but solely
as Administrative Trustee
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Xxxxxxx Xxxxx
not in her individual
capacity, but solely
as Administrative Trustee
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Xxxxxxx Xxxxxxx
not in his individual
capacity, but solely
as Administrative Trustee
