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INTANGIBLE TRANSITION PROPERTY
TRANSFER AGREEMENT
between
WEST PENN FUNDING [II] CORPORATION
Seller
and
WEST PENN POWER COMPANY
Transferor
Dated as of
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TABLE OF CONTENTS
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions...................................................
SECTION 1.02. Other Definitional Provisions.................................
ARTICLE II
Conveyance of Intangible Transition Property
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SECTION 2.01. Conveyance of Initial Intangible Transition Property..........
SECTION 2.02. Conveyance of Subsequent Intangible Transition Property.......
SECTION 2.03. Conditions to Conveyance of Intangible Transition Propery.....
ARTICLE III
Representations and Warranties of Transferor
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SECTION 3.01. Organization and Good Standing.................................
SECTION 3.02. Due Qualification..............................................
SECTION 3.03. Power and Authority............................................
SECTION 3.04. Binding Obligation.............................................
SECTION 3.05. No Violation...................................................
SECTION 3.06. No Proceedings.................................................
SECTION 3.07. Approvals......................................................
SECTION 3.08. The Intangible Transition Property.............................
ARTICLE IV
Covenants of the Transferor
---------------------------
SECTION 4.01. Corporate Existence............................................
SECTION 4.02. No Liens or Conveyances........................................
SECTION 4.03. Delivery of Collections........................................
SECTION 4.04. Notice of Liens................................................
SECTION 4.05. Compliance with Law............................................
SECTION 4.06. Covenants Related to Intangible Transition Property............
SECTION 4.07. Notice of Indemnification Events and
Mandatory Repurchase Events................................
SECTION 4.08. Protection of Title............................................
SECTION 4.09. Taxes..........................................................
ARTICLE V
The Transferor
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SECTION 5.01. Liability of Transferor; Indemnities
and Mandatory Repurchase...................................
SECTION 5.02. Merger or Consolidation of, or
Assumption of the Obligations of, Transferor...............
SECTION 5.03. Limitation on Liability of Transferor
and Others.................................................
SECTION 5.04. Opinions of Counsel............................................
ARTICLE VI
Miscellaneous Provisions
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SECTION 6.01. Amendment......................................................
SECTION 6.02. Notices........................................................
SECTION 6.03. Assignment.....................................................
SECTION 6.04. Limitations on Rights of Others................................
SECTION 6.05. Severability...................................................
SECTION 6.06. Separate Counterparts..........................................
SECTION 6.07. Headings.......................................................
SECTION 6.08. Governing Law..................................................
SECTION 6.09. Assignment to Issuer and to Bond Trustee.......................
SECTION 6.10. Nonpetition Covenant...........................................
SECTION 6.11. Perfection.....................................................
INTANGIBLE TRANSITION PROPERTY TRANSFER AGREEMENT dated as of ----------,
between WEST PENN FUNDING [II] CORPORATION, a Delaware corporation (the
"Seller"), and WEST PENN POWER COMPANY, a Pennsylvania corporation, and its
successors in interest to the extent permitted hereunder, as Transferor (the
"Transferor").
WHEREAS the Transferor desires to contribute from time to time Intangible
Transition Property created pursuant to the Statute and the Qualified Rate Order
in exchange for all of the outstanding capital stock of the Seller;
WHEREAS the Seller is willing to purchase the Intangible Transition
Property;
WHEREAS the Seller intends to sell the Transferred Intangible Transition
Property to the Issuer and the Issuer intends to purchase the Transferred
Intangible Transition Property from the Seller pursuant to the Sale Agreement;
WHEREAS the Issuer, in order to finance the purchase of the Transferred
Intangible Transition Property, will from time to time issue Transition Bonds
under the Indenture;
WHEREAS the Issuer, to secure its obligations under all Transition Bonds
and the Indenture, will pledge its right, title and interest in the Transferred
Intangible Transition Property to the Bond Trustee for the benefit of the
Transition Bondholders; and
WHEREAS the Seller has determined that the transactions contemplated by the
Basic Documents are in the best interest of the Seller and its creditors and
represent a prudent and advisable course of action that does not impair the
rights and interests of the Seller's creditors.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. (a) Whenever used in this Agreement, each of the
following words and phrases shall have the following meaning:
"Addition Notice" means, with respect to the transfer of Subsequent
Intangible Transition Property to the Seller pursuant to Section 2.02, notice,
which shall be given by the Transferor to the Seller and the Rating Agencies not
later than 10 days prior to the related Subsequent Contribution Date, specifying
the Subsequent Contribution Date for such Subsequent Intangible Transition
Property.
"Agreement" means this Intangible Transition Property Transfer Agreement,
as the same may be amended and supplemented from time to time.
"Xxxx of Sale" means a xxxx of sale substantially in the form of Exhibit A
hereto.
"Business Day" has the meaning specified in the Servicing Agreement.
"Competitive Transition Charges" has the meaning specified in the Servicing
Agreement.
"Corporate Trust Office" means, [Address of Bond Trustee] Attention: [ ],
or the principal corporate trust office of any successor Bond Trustee (the
address of which the successor Bond Trustee will notify the Transition
Bondholders and the Issuer).
"Customers" has the meaning specified in the Servicing Agreement.
"Deferred Repurchase Price" has the meaning specified in Section
5.01(d)(i).
"Fitch" has the meaning specified in the Servicing Agreement.
"Indemnification Event" has the meaning specified in Section 5.01(c)(i).
"Indenture" means the Indenture dated as of -----------, between the Issuer
and -----------, as the same may be amended and supplemented from time to time.
"Initial Contribution Date" means -------------.
"Initial Intangible Transition Property" means the Intangible Transition
Property, as identified in the related Xxxx of Sale, contributed to the Seller
on the Initial Contribution Date pursuant to such Xxxx of Sale in connection
with the issuance of the Series ----- Transition Bonds.
"Initial Loss Calculation Date" has the meaning specified in Section
5.01(c)(ii).
"Intangible Transition Charges" has the meaning specified in the Servicing
Agreement.
"Intangible Transition Property" has the meaning specified in the Servicing
Agreement.
"ITC Collections" has the meaning specified in the Servicing Agreement.
"Lien" has the meaning specified in the Servicing Agreement.
"Losses" has the meaning specified in the Servicing Agreement.
"Mandatory Repurchase Event" has the meaning specified in Section
5.01(d)(i).
"Moody's" has the meaning specified in the Servicing Agreement.
"Officers' Certificate" means a certificate signed by (a) the chairman of
the board, the president, the vice chairman of the board, the executive vice
president or any vice president and (b) a treasurer, assistant treasurer,
secretary or assistant secretary, in each case of the Transferor or the
Servicer, as appropriate.
"Opinion of Counsel" means one or more written opinions of counsel who may
be an employee of or counsel to the Transferor or the Servicer, which counsel
shall be reasonably acceptable to the Bond Trustee, the Seller, the Issuer or
the Rating Agencies, as applicable, and which shall be in form reasonably
satisfactory to the Bond Trustee, the Seller, if applicable.
"PUC" has the meaning specified in the Servicing Agreement.
"PUC Regulations" has the meaning specified in the Servicing Agreement.
"Qualified Rate Order" has the meaning specified in the Servicing
Agreement.
"Qualified Transition Expenses" has the meaning specified in the Servicing
Agreement.
"Rate Schedule" has the meaning specified in the Servicing Agreement.
"Retained Intangible Transition Property" means Intangible Transition
Property other than the Transferred Intangible Transition Property.
"Seller" has the meaning specified in the heading of this Agreement.
"Serviced Intangible Transition Property" has the meaning specified in the
Servicing Agreement.
"Servicer" means West Penn, as the servicer of the Intangible Transition
Property, and each successor to West Penn (in the same capacity) pursuant to
Section 5.03 or 6.04 of the Servicing Agreement.
"Servicer Default" means an event specified in Section 6.01 of the
Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement dated as of
-----------, between the Issuer and the Servicer, as the same may be amended and
supplemented from time to time.
"Standard & Poor's" has the meaning specified in the Servicing Agreement.
"Statute" has the meaning specified in the Servicing Agreement.
"Subsequent Contribution Date" means any date on which Subsequent
Intangible Transition Property is to be transferred to the Seller pursuant to
Section 2.02.
"Subsequent Intangible Transition Property" means Intangible Transition
Property, as identified in the related Xxxx of Sale, contributed to the Seller
on any Subsequent Contribution Date in connection with the issuance of a Series
of Transition Bonds.
"Third Party" has the meaning specified in the Servicing Agreement.
"Transferor" has the meaning specified in the heading of this Agreement.
"Transferred Intangible Transition Property" means, collectively, the
Initial Intangible Transition Property and any Subsequent Intangible Transition
Property.
"UCC" has the meaning specified in the Servicing Agreement.
"West Penn" has the meaning specified in the Servicing Agreement.
(b) Except as otherwise specified herein or as the context may otherwise
require, each of the following terms has the meaning set forth in the Indenture
for all purposes of this Agreement, and the definitions of such terms are
equally applicable both to the singular and plural forms of such terms:
Term Section of the Indenture
- ---- ------------------------
Adjustment Date........................
Affiliate..............................
Basic Documents........................
Bond Trustee...........................
Capital Subaccount.....................
Collateral.............................
Collection Account.....................
General Subaccount.....................
Holders or Transition
Bondholders..........................
Loss Subaccount........................
Operating Expenses.....................
Overcollateralization Amount...........
Payment Date...........................
Person.................................
Rating Agency..........................
Rating Agency Condition................
Reserve Subaccount.....................
Series.................................
Servicing Fee..........................
Transition Bonds.......................
SECTION 1.02. Other Definitional Provisions. (a) The words "hereof",
"herein", "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement; Section, Schedule and Exhibit references contained in this
Agreement are references to Sections, Schedules and Exhibits in or to this
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(b) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
Conveyance of Intangible Transition Property
SECTION 2.01. Conveyance of Initial Intangible Transition Property. (a) In
consideration of the Seller's delivery to the Transferor of certificates
evidencing ----- shares of common stock, par value $.01 per share, of the Seller
(which constitutes 100% of the outstanding capital stock of the Seller), subject
to the conditions specified in Section 2.03, the Transferor, pursuant to a Xxxx
of Sale, will irrevocably contribute, sell, transfer, assign, set over and
otherwise convey to the Seller, without recourse (subject to the obligations
herein), all right, title and interest of the Transferor in and to the Initial
Intangible Transition Property (such contribution, sale, transfer, assignment,
set over and conveyance of the Initial Intangible Transition Property will
include, to the fullest extent permitted by the Statute, the assignment of all
revenues, collections, claims, rights, payments, money or proceeds of or arising
from the Intangible Transition Charges related to the Initial Intangible
Transition Property, as the same may be adjusted from time to time). Such
contribution, sale, transfer, assignment, set over and conveyance will be
expressly stated to be a sale and, pursuant to Section 2812(e) of the Statute,
shall be treated as an absolute transfer of all of the Transferor's right, title
and interest (as in a true sale), and not as a pledge or other financing, of the
Initial Intangible Transition Property. The preceding sentence is the statement
referred to in Section 2812(e) of the Statute. The Transferor agrees and
confirms that after giving effect to the sale contemplated by such Xxxx of Sale
it has no rights in the Initial Intangible Transition Property to which a
security interest of creditors of the Transferor could attach because it has
sold all rights in the Initial Intangible Transition Property to the Seller
pursuant to Section 2812(e) of the Statute.
(b) Subject to the conditions specified in Section 2.03, the Seller,
pursuant to a Xxxx of Sale, will purchase the Initial Intangible Transition
Property from the Transferor for the consideration set forth in paragraph (a)
above.
(c) The Transferor and the Seller each acknowledge and agree that the
consideration for the Initial Intangible Transition Property sold pursuant to
the Xxxx of Sale is equal to its fair market value at the time of sale.
SECTION 2.02. Conveyance of Subsequent Intangible Transition Property. The
Transferor may from time to time offer to sell additional Intangible Transition
Property to the Seller, subject to the conditions specified in Section 2.03. If
any such offer is accepted by the Seller, such Subsequent Intangible Transition
Property shall be sold to the Seller effective on the Subsequent Contribution
Date specified in the related Addition Notice, subject to the satisfaction or
waiver of the conditions specified in Section 2.03.
SECTION 2.03. Conditions to Conveyance of Intangible Transition Property.
The Transferor shall be permitted to sell Intangible Transition Property to the
Seller only upon the satisfaction or waiver of each of the following conditions:
(i) on or prior to the Initial Contribution Date or Subsequent
Contribution Date, as applicable, the Transferor shall have delivered to
the Seller a duly executed Xxxx of Sale identifying the Intangible
Transition Property to be conveyed on that date;
(ii) as of the Initial Contribution Date or the Subsequent
Contribution Date, as applicable, the Transferor was not insolvent and will
not have been made insolvent by such sale and the Transferor is not aware
of any pending insolvency with respect to itself;
(iii) as of the Initial Contribution Date or the Subsequent
Contribution Date, as applicable, no breach by the Transferor of its
representations, warranties or covenants in this Agreement shall exist; and
no Servicer Default shall have occurred and be continuing;
(iv) as of the Initial Contribution Date or the Subsequent
Contribution Date, as applicable, (A) the Issuer shall have sufficient
funds available to pay the purchase price for the Transferred Intangible
Transition Property to be conveyed on such date and (B) all conditions to
the issuance of one or more Series of Transition Bonds intended to provide
such funds set forth in the Indenture shall have been satisfied or waived;
(v) on or prior to the Initial Contribution Date or Subsequent
Contribution Date, as applicable, the Transferor shall have taken all
action required to transfer to the Seller ownership of the Transferred
Intangible Transition Property to be conveyed on such date, free and clear
of all Liens other than Liens created by the Issuer pursuant to the
Indenture; the Seller shall have taken any action required for the Seller
to transfer to the Issuer ownership of the Transferred Intangible
Transition Property to be conveyed on such date, free and clear of all
Liens other than Liens created by the Issuer pursuant to the Indenture; and
the Issuer or the Servicer, on behalf of the Issuer, shall have taken any
action required for the Issuer to grant the Bond Trustee a first priority
perfected security interest in the Collateral and maintain such security
interest as of such date;
(vi) in the case of a sale of Subsequent Intangible Transition
Property only, on or prior to such Subsequent Contribution Date, the
Transferor shall have provided the Seller, the Issuer and the Rating
Agencies with a timely Addition Notice;
(vii) the Transferor shall have delivered to the Rating Agencies, the
Seller and the Issuer (A) an Opinion of Counsel with respect to the
transfer of the Transferred Intangible Transition Property then being
conveyed to the Seller substantially in the form of Exhibit B hereto and
(B) the Opinion of Counsel required by Section 5.04(a); and
(viii) the Transferor shall have delivered to the Bond Trustee, the
Seller and the Issuer an Officers' Certificate confirming the satisfaction
of each condition precedent specified in this Section 2.03.
ARTICLE III
Representations and Warranties of Transferor
As of the Initial Contribution Date and as of any Subsequent Contribution
Date, as applicable, the Transferor makes the following representations and
warranties on which the Seller has relied and will rely in acquiring Transferred
Intangible Transition Property. The Transferor agrees and acknowledges that the
following representations and warranties are also for the benefit of the Issuer,
as assignee of the Seller pursuant to the Sale Agreement, and the Bond Trustee,
as collateral assignee of the Issuer pursuant to the Indenture. The
representations and warranties shall survive the sale of Transferred Intangible
Transition Property to the Seller, the sale of the Transferred Intangible
Transition Property from the Seller to the Issuer pursuant to the Sale Agreement
and the pledge thereof to the Bond Trustee pursuant to the Indenture.
SECTION 3.01. Organization and Good Standing. The Transferor is a
corporation duly organized and in good standing under the laws of the
Commonwealth of Pennsylvania, with corporate power and authority to own its
properties and conduct its business as currently owned or conducted.
SECTION 3.02. Due Qualification. The Transferor is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications, licenses or approvals (except where the failure to so qualify
would not be reasonably likely to have a material adverse effect on the
Transferor's business, operations, assets, revenues, properties or prospects).
SECTION 3.03. Power and Authority. The Transferor has the corporate power
and authority to execute and deliver this Agreement and to carry out its terms;
the Transferor has full corporate power and authority to own the Intangible
Transition Property and contribute, sell and assign the Initial Intangible
Transition Property, in the case of the Initial Contribution Date, and the
Subsequent Intangible Transition Property, in the case of each Subsequent
Contribution Date, as applicable, and the Transferor has duly authorized such
contribution, sale and assignment to the Seller by all necessary corporate
action; and the execution, delivery and performance of this Agreement has been
duly authorized by the Transferor by all necessary corporate action.
SECTION 3.04. Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Transferor enforceable against the Transferor in
accordance with its terms subject to bankruptcy, receivership, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
SECTION 3.05. No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of the Transferor, or any indenture,
agreement or other instrument to which the Transferor is a party or by which it
shall be bound; nor result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or other
instrument; nor violate any law or any order, rule or regulation applicable to
the Transferor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Transferor or its properties.
SECTION 3.06. No Proceedings. There are no proceedings or investigations
pending or, to the Transferor's best knowledge, threatened, before any court,
Federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its properties (i)
asserting the invalidity of the Basic Documents or the Transition Bonds, (ii)
seeking to prevent the issuance of the Transition Bonds or the consummation of
any of the transactions contemplated by the Basic Documents or the Transition
Bonds or (iii) except as disclosed by the Transferor to the Seller, seeking any
determination or ruling that could reasonably be expected to materially and
adversely affect the performance by the Transferor of its obligations under, or
the validity or enforceability of, the Basic Documents or the Transition Bonds.
SECTION 3.07. Approvals. Except for UCC continuation filings, no approval,
authorization, consent, order or other action of, or filing with, any court,
Federal or state regulatory body, administrative agency or other governmental
instrumentality is required in connection with the execution and delivery by the
Transferor of this Agreement, the performance by the Transferor of the
transactions contemplated hereby or the fulfillment by the Transferor of the
terms hereof, except those that have been obtained or made.
SECTION 3.08. The Intangible Transition Property. (a) Information. All
information provided by the Transferor to the Seller with respect to the
Transferred Intangible Transition Property is correct in all material respects.
(b) Effect of Transfer. The transfers and assignments herein contemplated
constitute sales of the Initial Intangible Transition Property or the Subsequent
Intangible Transition Property, as the case may be, from the Transferor to the
Seller and the beneficial interest in and title to the Transferred Intangible
Transition Property would not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against the Transferor under any
bankruptcy law.
(c) Transfer Filings. The Transferor is the sole owner of the Intangible
Transition Property being sold to the Seller on the Initial Contribution Date or
Subsequent Contribution Date, as applicable; the Transferred Intangible
Transition Property has been validly transferred and sold to the Seller free and
clear of all Liens other than Liens contemplated hereby. All filings, including
filings with the PUC under the Statute, necessary in any jurisdiction to give
the Seller a valid ownership interest in the Transferred Intangible Transition
Property, free and clear of all Liens of the Transferor or anyone claiming
through the Transferor, and to give the Seller a first priority perfected
security interest in the Transferred Intangible Transition Property have been
made, other than any such filings (except for filings with the PUC under the
Statute and UCC filings with the Secretary of State of the State of Delaware)
the absence of which would not have an adverse impact on (i) the ability of the
Servicer to collect Intangible Transition Charges with respect to the Serviced
Intangible Transition Property or (ii) the rights of the Seller with respect to
the Transferred Intangible Transition Property.
(d) Irrevocable; Process Valid; No Litigation; Etc. (i) The Qualified Rate
Order has been issued by the PUC in accordance with the Statute, such order and
the process by which it was issued comply with all applicable laws, rules and
regulations, and such order is in full force and effect. (ii) As of the date of
issuance of any Series of Transition Bonds, such Transition Bonds are entitled
to the protections provided by the Statute and, accordingly, the provisions of
the Qualified Rate Order relating to Intangible Transition Property and
Intangible Transition Charges are not revocable by the PUC. (iii) (a) Under the
Statute, neither the Commonwealth of Pennsylvania nor the PUC may limit, alter
or in any way impair or reduce the value of Intangible Transition Property or
Intangible Transition Charges approved by the Qualified Rate Order or any rights
thereunder, except such a limitation or alteration may be made by the
Commonwealth of Pennsylvania or the PUC if adequate compensation is made by law
for the full protection of the Intangible Transition Charges and of Transition
Bondholders; and (b) under the Contract Clauses of the Constitutions of the
Commonwealth of Pennsylvania and the United States, the Commonwealth of
Pennsylvania and the PUC cannot take any action that substantially impairs the
rights of the Transition Bondholders unless such action is a reasonable exercise
of the Commonwealth of Pennsylvania's sovereign powers and appropriate to
further a legitimate public purpose, and, under the Takings Clauses of the
Pennsylvania and United States Constitutions, in the event such action
constitutes a permanent appropriation of the property interest of Transition
Bondholders in the Intangible Transition Property and deprives the Transition
Bondholders of their reasonable expectations arising from their investments in
Transition Bonds, unless just compensation, as determined by a court of
competent jurisdiction, is provided to Transition Bondholders. (iv) There is no
order by any court providing for the revocation, alteration, limitation or other
impairment of the Statute, Qualified Rate Order, Intangible Transition Property
or the Intangible Transition Charges or any rights arising under any of them or
which seeks to enjoin the performance of any obligations under the Qualified
Rate Order. (v) No other approval, authorization, consent, order or other action
of, or filing with, any court, Federal or state regulatory body, administrative
agency or other governmental instrumentality is required in connection with the
creation of the Intangible Transition Property, except those that have been
obtained or made. (vi) Except as disclosed by the Transferor to the Seller,
there are no proceedings or investigations pending, or to the Transferor's best
knowledge, threatened before any court, Federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Transferor or its properties challenging the Qualified Rate Order or
the Statute. (vii) No failure on the Initial Contribution Date or any Subsequent
Contribution Date or any time thereafter to satisfy any condition imposed by the
Statute with respect to the recovery of stranded costs will adversely affect the
creation or sale hereunder of Intangible Transition Property or the right to
collect Intangible Transition Charges.
(e) Assumptions. The assumptions used in calculating Intangible Transition
Charges are reasonable and made in good faith.
(f) Creation of Intangible Transition Property. (i) The Intangible
Transition Property other than the Retained Intangible Transition Property
constitutes a current property right, (ii) the Intangible Transition Property
includes, without limitation, (A) the irrevocable right of the Seller and the
Issuer, as assignee of the Seller, to receive through Intangible Transition
Charges an amount sufficient to recover all of the Transferor's Qualified
Transition Expenses described in the Qualified Rate Order in an amount equal to
the aggregate principal amount of Transition Bonds plus an amount sufficient to
provide for any credit enhancement (including the Overcollateralization Amount
relating to each Series of Transition Bonds), to fund any reserves, and to pay
interest, premium, if any, servicing fees and other expenses relating to the
Transition Bonds, and (B) all right, title and interest of the Transferor or its
assignee applicable to the Transition Bonds in the Qualified Rate Order and in
all revenues, collections, claims, payments, money or proceeds of or arising
from the Intangible Transition Charges applicable to the Transition Bonds set
forth in the Qualified Rate Order to the extent that in accordance with the
Statute, the Qualified Rate Order and the rates and charges authorized under the
Qualified Rate Order are declared to be irrevocable and (iii) the Qualified Rate
Order, including the right to collect Intangible Transition Charges, have been
declared to be irrevocable by the PUC.
(g) Solvency. After giving effect to the sale of any Transferred Intangible
Transition Property hereunder, the Transferor (i) is solvent and expects to
remain solvent, (ii) is adequately capitalized to conduct its business and
affairs considering its size and the nature of its business and intended
purposes, (iii) is not engaged in nor does it expect to engage in a business for
which its remaining property represents an unreasonably small capital, (iv)
believes that it will be able to pay its debts as they come due and that such
belief is reasonable and (v) is able to pay its debts as they mature and does
not intend to incur, or believe that it will incur, indebtedness that it will
not be able to repay at its maturity.
ARTICLE IV
Covenants of the Transferor
SECTION 4.01. Corporate Existence. Subject to Section 5.02, so long as any
of the Transition Bonds are outstanding, the Transferor will keep in full force
and effect its corporate existence and remain in good standing, in each case
under the laws of the jurisdiction of its incorporation, and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and each other instrument or agreement to which
the Transferor is a party necessary to the proper administration of this
Agreement and the transactions contemplated hereby.
SECTION 4.02. No Liens or Conveyances. Except for the conveyances
hereunder, the Transferor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on, any of
the Intangible Transition Property, whether now existing or hereafter created,
or any interest therein. The Transferor shall not at any time assert any Lien
against or with respect to any Serviced Intangible Transition Property, and
shall defend the right, title and interest of the Seller, the Issuer, as
assignee of the Seller, and the Bond Trustee, as collateral assignee of the
Issuer, in, to and under the Intangible Transition Property, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Transferor.
SECTION 4.03. Delivery of Collections. If the Transferor receives
collections in respect of the Intangible Transition Charges, other than
Intangible Transition Charges relating to Retained Intangible Transition
Property, or the proceeds thereof, the Transferor agrees to pay the Servicer all
payments received by the Transferor in respect thereof as soon as practicable
after receipt thereof by the Transferor, but in no event later than two Business
Days after such receipt.
SECTION 4.04. Notice of Liens. The Transferor shall notify the Issuer and
the Bond Trustee promptly after becoming aware of any Lien on any Intangible
Transition Property other than the conveyances hereunder, under the Sale
Agreement or under the Indenture.
SECTION 4.05. Compliance with Law. The Transferor hereby agrees to comply
with its organizational or governing documents and all laws, treaties, rules,
regulations and determinations of any governmental instrumentality applicable to
the Transferor, except to the extent that failure to so comply would not
adversely affect the Seller's, the Issuer's or the Bond Trustee's interests in
the Intangible Transition Property or under any of the Basic Documents or the
Transferor's performance of its obligations hereunder or under any of the other
Basic Documents to which it is a party.
SECTION 4.06. Covenants Related to Intangible Transition Property. (a) So
long as any of the Transition Bonds are outstanding, the Transferor shall treat
the Transition Bonds as debt of the Seller for Federal income tax purposes.
(b) So long as any of the Transition Bonds are outstanding, the Transferor
shall (i) clearly disclose in its financial statements that it is not the owner
of the Serviced Intangible Transition Property and that the assets of the Issuer
are not available to pay creditors of the Transferor or any of its Affiliates
and (ii) clearly disclose the effects of all transactions among the Transferor,
the Seller and the Issuer in accordance with generally accepted accounting
principles.
(c) The Transferor agrees that upon the sale by the Transferor of the
Transferred Intangible Transition Property to the Seller pursuant to a Xxxx of
Sale, (i) to the fullest extent permitted by law, including applicable PUC
Regulations, the Seller shall have all of the rights originally held by the
Transferor with respect to the Transferred Intangible Transition Property (other
than the rights of an electric distribution company set forth in Section 2807 of
the Statute), including the right to collect any amounts payable by any Customer
or Third Party in respect of such Transferred Intangible Transition Property,
notwithstanding any objection or direction to the contrary by the Transferor and
(ii) any payment by any Customer or Third Party to the Seller shall discharge
such Customer's or such Third Party's obligations in respect of such Transferred
Intangible Transition Property to the extent of such payment, notwithstanding
any objection or direction to the contrary by the Transferor.
(d) So long as any of the Transition Bonds are outstanding, (i) the
Transferor shall not make any statement or reference in respect of the
Transferred Intangible Transition Property that is inconsistent with the
ownership thereof by the Seller or, after the sale of the Transferred Intangible
Transition Property by the Seller to the Issuer, the Issuer and (ii) the
Transferor shall not take any action in respect of the Serviced Intangible
Transition Property except solely in its capacity as the Servicer thereof
pursuant to the Servicing Agreement or as otherwise contemplated by the Basic
Documents.
SECTION 4.07. Notice of Indemnification Events and Mandatory Repurchase
Events. The Transferor shall deliver to the Seller, the Issuer and the Bond
Trustee promptly after having obtained knowledge thereof, written notice in an
Officers' Certificate of any Indemnification Event or Mandatory Repurchase Event
or any event which, with the giving of notice or the passage of time, would
become an Indemnification Event or Mandatory Repurchase Event.
SECTION 4.08. Protection of Title. The Transferor shall execute and file
such filings, including filings with the PUC pursuant to the Statute, and cause
to be executed and filed such filings, all in such manner and in such places as
may be required by law fully to preserve, maintain, and protect the interests of
the Seller in the Transferred Intangible Transition Property, including all
filings required under the Statute relating to the transfer of the ownership or
security interest in the Transferred Intangible Transition Property by the
Transferor to the Seller. The Transferor shall deliver (or cause to be
delivered) to the Seller file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
The Transferor agrees to take such legal or administrative actions, including
defending against or instituting and pursuing legal actions and appearing or
testifying at hearings or similar proceedings, as may be reasonably necessary
(i) to protect the Seller, the Issuer and the Transition Bondholders from
claims, state actions or other actions or proceedings of third parties which, if
successfully pursued, would result in a breach of any representation or warranty
set forth in Article III or (ii) to block or overturn any attempts to cause a
repeal of, modification of or supplement to the Statute or the Qualified Rate
Order or the rights of holders of Intangible Transition Property by legislative
enactment or constitutional amendment that would be adverse to the holders of
Intangible Transition Property.
SECTION 4.09. Taxes. So long as any of the Transition Bonds are
outstanding, the Transferor shall, and shall cause each of its subsidiaries to,
pay all material taxes, including gross receipts taxes, assessments and
governmental charges imposed upon it or any of its properties or assets or with
respect to any of its franchises, business, income or property before any
penalty accrues thereon if the failure to pay any such taxes, assessments and
governmental charges would, after any applicable grace periods, notices or other
similar requirements, result in a lien on the Intangible Transition Property;
provided that no such tax need be paid if the Transferor or one of its
subsidiaries is contesting the same in good faith by appropriate proceedings
promptly instituted and diligently conducted and if the Transferor or such
subsidiary has established appropriate reserves as shall be required in
conformity with generally accepted accounting principles.
ARTICLE V
The Transferor
SECTION 5.01. Liability of Transferor; Indemnities and Mandatory
Repurchase. (a) The Transferor shall be liable in accordance herewith only to
the extent of the obligations specifically undertaken by the Transferor under
this Agreement.
(b) The Transferor shall indemnify the Seller, the Issuer and the Bond
Trustee, for itself and on behalf of the Transition Bondholders, and each of
their respective members, managers, officers, directors and agents for, and
defend and hold harmless each such Person from and against, any and all taxes
(other than any taxes imposed on Transition Bondholders solely as a result of
their ownership of Transition Bonds) that may at any time be imposed on or
asserted against any such Person as a result of the acquisition or holding of
the Transferred Intangible Transition Property by the Seller or the Issuer or
the issuance and sale by the Issuer of the Transition Bonds, including any
sales, gross receipts, general corporation, tangible personal property,
privilege or license taxes.
(c)(i) The Transferor shall indemnify the Seller, the Issuer and the Bond
Trustee, on behalf of the Transition Bondholders, each of their respective
members, managers, officers, directors, and agents, and defend and hold harmless
each such Person from and against, any and all Losses that may be imposed on,
incurred by or asserted against any such Person as a result of (x) the
Transferor's wilful misconduct, bad faith or gross negligence in the performance
of its duties or observance of its covenants under this Agreement, (y) the
Transferor's reckless disre gard of its obligations and duties under this
Agreement or (z) the Transferor's breach of any of its representations or
warranties contained in this Agreement other than those contained in Sections
3.08(b), 3.08(c), 3.08(d)(i), (ii) and (iv) and 3.08(f) (any event described in
any of the foregoing clauses (x), (y) or (z), an "Indemnification Event");
provided, however, that the amount of such Losses (other than those payable
pursuant to Section 5.01(e)) for which the Transferor shall be obligated to
provide indemnification shall not exceed the amount of the Deferred Repurchase
Price. Amounts on deposit in the Reserve Subaccount and the Capital Subaccount
shall not be available to satisfy any Losses for which indemnification is
provided in this Agreement.
(ii) If an Indemnification Event shall occur, upon receipt of written
notice thereof by the Transferor from the Seller, the Issuer or the Bond
Trustee, the Transferor shall notify the Servicer of the occurrence of such
event so that the Servicer may, pursuant to Section 7 of Annex 1 to the
Servicing Agreement, calculate (x) on the day which is 90 days after receipt of
such notice by the Transferor (the "Initial Loss Calculation Date") the amount
of Losses expected to be incurred as a result of such Indemnification Event from
and including the time of its occurrence through and including the next Payment
Date after the Initial Loss Calculation Date and (y) to the extent that Losses
may be incurred as a result of such Indemnification Event in an amount exceeding
the amount of Losses calculated pursuant to clause (x) above and unless the
Transferor has paid the Deferred Repurchase Price with respect to such
Indemnification Event pursuant to Section 5.01(d)(i)(B), not later than each
Payment Date succeeding the Initial Loss Calculation Date, the amount of Losses
expected to be incurred as a result of such Indemnification Event from but
excluding such Payment Date through and including the next Payment Date. All
such calculations shall be subject to the approval of the Bond Trustee. If such
Indemnification Event shall continue unremedied beyond the Initial Loss
Calculation Date, the Transferor shall pay to the Bond Trustee, as collateral
assignee of the Issuer (as assignee of the Seller), for deposit into the General
Subaccount of the Collection Account, (x) on the Payment Date immediately
following the Initial Loss Calculation Date, the amount of Losses calculated
pursuant to clause (x) and clause (y) of the preceding sentence with respect to
such Payment Date and (y) on each subsequent Payment Date, the amount of Losses
calculated as of such date pursuant to clause (y) of the preceding sentence.
Upon payment pursuant to this Section 5.01(c)(ii), the Transferor shall have no
further obligations with respect to such Losses to the extent of such payments.
(d)(i) In the event of a breach by the Transferor of any representation and
warranty specified in (A) Section 3.08(b), 3.08(c), 3.08(d)(i), (ii) or (iv) or
3.08(f) of this Agreement that has a material adverse effect on the Transition
Bondholders or (B) Sections 3.01, 3.03, 3.04, 3.05 and 3.08(d)(iii), (v) or (vi)
of this Agreement for which the full amount of Losses attributable thereto are
reasonably expected to be incurred beyond a 90-day period immediately following
the occurrence of such Indemnification Event (any event described in clause (A)
or (B), a "Mandatory Repurchase Event"), the Transferor will be required to
repurchase the Transferred Intangible Transition Property and, on each Payment
Date following such repurchase, the Transferor will be required to pay (any such
payment by the Transferor is referred to as the "Deferred Repurchase Price") to
the Bond Trustee, as collateral assignee of the Issuer (as assignee of the
Seller), for deposit in the General Subaccount of the Collection Account, an
amount sufficient to make the payments contemplated by clauses (i) through
(viii) of Section 8.02(d) of the Indenture.
(ii) The Transferor shall not be obligated to pay the Deferred Repurchase
Price pursuant to Section 5.01(d)(i) (A) if within 90 days after the date of the
occurrence thereof such breach is cured or the Transferor takes remedial action
such that there is not and will not be a material adverse effect on the
Transition Bondholders as a result of such breach. In the event that within such
90-day period (i) such breach is cured or (ii) the Transferor takes the remedial
action specified by this Section 5.01(d)(ii), any amounts paid by the Transferor
to the Bond Trustee, as collateral assignee of the Issuer (as assignee of the
Seller) pursuant to Section 5.01(d)(i) which have not been distributed pursuant
to the Indenture shall be returned to the Transferor at the end of such 90-day
period.
(iii) Upon the payment in full by the Transferor of the aggregate amount of
the Deferred Repurchase Price pursuant to Section 5.01(d)(i), neither the
Issuer, the Seller nor any other Person shall have any other claims, rights or
remedies against the Transferor for a breach of the representations and
warranties specified in Section 3.08(b), (c), (d)(i), (d)(ii), (d)(iv) or (f).
(e) The Transferor shall indemnify the Bond Trustee and its officers,
directors and agents for, and defend and hold harmless each such Person from and
against, any and all Losses that may be imposed upon, incurred by or asserted
against any such Person as a result of the acceptance or performance of the
trusts and duties contained herein and in the Indenture, except to the extent
that any such Loss shall be due to the wilful misfeasance, bad faith or gross
negligence of the Bond Trustee. Such amounts shall be deposited into the
Collection Account and distributed in accordance with the Indenture.
(f) The Transferor's indemnification obligations under Section 5.01(b),(c),
(d) and (e) for events occurring prior to the removal or resignation of the Bond
Trustee or the termination of this Agreement shall survive the resignation or
removal of the Bond Trustee or the termination of this Agreement and shall
include reasonable fees and expenses of investigation and litigation (including
the Bond Trustee's reasonable attorney's fees and expenses).
SECTION 5.02. Merger or Consolidation of, or Assumption of the Obligations
of, Transferor. Any Person (a) into which the Transferor may be merged or
consolidated and which succeeds to the major part of the electric distribution
business of the Transferor, (b) which results from the division of the
Transferor into two or more Persons and which succeeds to the major part of the
electric distribution business of the Transferor, (c) which may result from any
merger or consolidation to which the Transferor shall be a party and which
succeeds to the major part of the electric distribution business of the
Transferor, (d) which may succeed to the properties and assets of the Transferor
substantially as a whole and which succeeds to the major part of the electric
distribution business of the Transferor or (e) which may otherwise succeed to
the major part of the electric distribution business of the Transferor, which
Person in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Transferor under this Agreement, shall be the
successor to the Transferor hereunder without the execution or filing of any
document or any further act by any of the parties to this Agreement; provided,
however, that (i) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Article III shall have been breached
and no Servicer Default, and no event that, after notice or lapse of time, or
both, would become a Servicer Default, shall have occurred and be continuing,
(ii) the Transferor shall have delivered to the Seller, the Issuer and the Bond
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, (iii) the
Rating Agencies shall have received prior written notice of such transaction and
(iv) the Transferor shall have delivered to the Seller, the Issuer and the Bond
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all filings, including filings with the PUC pursuant to the Statute,
have been executed and filed that are necessary fully to preserve and protect
the interest of the Seller in the Transferred Intangible Transition Property and
reciting the details of such filings or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interests. Notwithstanding anything herein to the contrary, the execution of the
above described agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) above shall be conditions precedent to the consummation of any
transaction referred to in clauses (a), (b), (c), (d) or (e) above.
SECTION 5.03. Limitation on Liability of Transferor and Others. The
Transferor and any director or officer or employee or agent of the Transferor
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person, respecting any
matters arising hereunder. Subject to Section 4.08, the Transferor shall not be
under any obligation to appear in, prosecute or defend any legal action that is
not incidental to its obligations under this Agreement, and that in its opinion
may involve it in any expense or liability.
SECTION 5.04. Opinions of Counsel. The Transferor shall deliver to the
Seller, the Issuer and the Bond Trustee: (a) promptly after the execution and
delivery of this Agreement and of each amendment hereto or to the Servicing
Agreement and on each Subsequent Contribution Date, an Opinion of Counsel either
(i) to the effect that, in the opinion of such counsel, all filings, including
filings with the PUC pursuant to the Statute, that are necessary to fully
preserve and protect the interests of the Seller in the Intangible Transition
Property have been executed and filed, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are given, or
(ii) to the effect that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest; and (b) within 90 days after
the beginning of each calendar year beginning with the first calendar year
beginning more than three months after the Initial Contribution Date, an Opinion
of Counsel, dated as of a date during such 90-day period, either (i) to the
effect that, in the opinion of such counsel, all filings with the PUC pursuant
to the Statute, have been executed and filed that are necessary to preserve
fully and protect fully the interest of the Seller in the Intangible Transition
Property, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (ii) to the effect that,
in the opinion of such counsel, no such action shall be necessary to preserve
and protect such interest. Each Opinion of Counsel referred to in clause (a) or
(b) above shall specify any action necessary (as of the date of such opinion) to
be taken in the following year to preserve and protect such interest.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.01. Amendment. This Agreement may be amended by the Seller and
the Transferor, with the consent of the Issuer and the Bond Trustee. The Seller
shall furnish to each of the Rating Agencies (i) prior to the execution of any
such amendment or consent, written notification of the substance thereof and
(ii) promptly after the execution of any such amendment or consent, a copy
thereof.
Prior to the execution of any amendment to this Agreement, the Seller, the
Issuer and the Bond Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in Section
5.04(a). The Seller, the Issuer and the Bond Trustee may, but shall not be
obligated to, enter into any such amendment which affects their own rights,
duties or immunities under this Agreement or otherwise.
SECTION 6.02. Notices. All demands, notices and communications upon or to
the Transferor, the Seller, the Issuer, the Bond Trustee or the Rating Agencies
under this Agreement shall be in writing, delivered personally, via facsimile,
reputable overnight courier or by certified mail, return-receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of the
Transferor, to West Penn Power Company, 000 Xxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX
00000, Attention of [ ], (b) in the case of the Seller, to West Penn Funding
Corporation, 000 Xxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000, Attention of [ ], (c)
in the case of the Issuer, to West Penn Funding LLC, 000 Xxxxx Xxxx Xxxxx,
Xxxxxxxxxx XX 00000, Attention of [ ], (d) in the case of the Bond Trustee, at
the Corporate Trust Office, (e) in the case of Moody's, to Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, (f) in the case of Standard & Poor's, to Standard & Poor's Corporation,
00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed
Surveillance Department, and (g) in the case of Fitch, to Fitch, Inc.,
Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of ABS Surveillance;
or, as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 6.03. Assignment. Notwithstanding anything to the contrary
contained herein, except as pro vided in Section 5.02, this Agreement may not be
assigned by the Transferor.
SECTION 6.04. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Transferor, the Seller, the Issuer
and the Bond Trustee, on behalf of itself and the Transition Bondholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Collateral or under or in respect of this Agreement or any covenants, conditions
or provisions contained herein.
SECTION 6.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6.06. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 6.07. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 6.08. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 6.09. Assignment to Issuer and to Bond Trustee. (a) The Transferor
hereby acknowledges and consent to the sale, transfer, assignment and conveyance
of all right, title and interest of the Seller in, to and under the Transferred
Intangible Transition Property and the proceeds thereof and the assignment of
any or all of the Seller's rights hereunder to the Issuer pursuant to the Sale
Agreement.
(b) The Transferor hereby acknowledges and consents to the mortgage,
pledge, assignment and grant of a security interest by the Issuer (as assignee
of the Seller) to the Bond Trustee pursuant to the Indenture for the benefit of
the Transition Bondholders of all right, title and interest of the Issuer in, to
and under the Transferred Intangible Transition Property and the proceeds
thereof and the assignment of any or all of the Issuer's rights under the Sale
Agreement to the Bond Trustee.
SECTION 6.10. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement or the Indenture, but subject to the PUC's rights to order the
sequestration and payment of revenues arising with respect to the Intangible
Transition Property notwithstanding any bankruptcy, reorganization or other
insolvency proceedings with respect to the debtor, pledgor or transferor of the
Intangible Transition Property pursuant to Section 2812(d)(3)(v) of the Statute,
the Transferor shall not, prior to the date which is one year and one day after
the termination of the Indenture, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Issuer or any substantial part of
the property of the Seller or the Issuer, or ordering the winding up or
liquidation of the affairs of the Seller or the Issuer.
SECTION 6.11. Perfection. In accordance with Section 2812(e) of the
Statute, upon the execution and delivery of this Agreement and the related Xxxx
of Sale, the transfer of the Initial Intangible Transition Property will be
perfected as against all third persons, including any judicial lien creditors,
and upon the execution and delivery of a Xxxx of Sale and, if applicable, a
supplement to this Agreement, a transfer of Subsequent Intangible Transition
Property will be perfected against all third persons, including any judicial
lien creditors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
WEST PENN FUNDING [II] CORPORATION,
Seller,
by
--------------------------------
Title:
WEST PENN POWER COMPANY,
Transferor,
by
--------------------------------
Title:
Acknowledged and Accepted:
[WEST PENN FUNDING LLC],
as Issuer of the Transition
Bonds,
by [ ], as Manager,
by:
----------------------------
Title:
[ ], not
in its individual capacity
but solely as Bond Trustee
on behalf of the Transition
Bondholders,
by
----------------------------
Title:
