AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of July 2, 1998 between ENSERCH
Corporation, a Texas corporation ("ENSERCH"), and ENSERCH Capital
I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from ENSERCH and to issue its Floating Rate 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 July 2,
1998 as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, ENSERCH is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Capital Securities by each holder thereof, which acceptance
ENSERCH hereby agrees shall benefit ENSERCH and which acceptance
ENSERCH acknowledges will be made in reliance upon the execution
and delivery of this Agreement, ENSERCH, including in its
capacity as holder of the Common Securities, and the Trust hereby
agree as follows:
ARTICLE I
Section 1.01. Assumption by ENSERCH. Subject to the
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terms and conditions hereof, ENSERCH 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
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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
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 and
between ENSERCH 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. ENSERCH hereby waives
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notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and ENSERCH 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 ENSERCH 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, ENSERCH 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 ENSERCH and ENSERCH waives any
right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against
ENSERCH.
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 ENSERCH 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 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
Capital 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:
ENSERCH Capital I
c/o Xxxxxx X. Xxxxxxx, Administrative Trustee
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
ENSERCH Corporation
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.
ENSERCH CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Secretary and Assistant
Treasurer
ENSERCH CAPITAL I
By: /s/ Xxx Xxxxxx
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not in his individual capacity, but
solely as Administrative Trustee
