INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT dated as of July ___, 2003 (this
"Agreement"), is entered into by and among:
TXU Receivables Company, a Delaware corporation in its capacity as the
purchaser (in such capacity, the "Initial Receivables Purchaser") under that
certain First Amended and Restated Trade Receivables Contribution and Sale
Agreement, dated as of July 30, 2001, and as amended on January 1, 2002 by those
certain Additional Originator Supplement Agreements thereto and on July 29,
2002, October 28, 2002, January 24, 2003 and February 24, 2003 by those certain
Amendments thereto (as so amended and as it may be amended, restated, modified
or supplemented from time to time, the "Receivables Purchase Agreement") by and
among TXU Energy Retail Company LP, a Texas limited partnership, TXU Gas
Company, a Texas corporation, Oncor Electric Delivery Company, a Texas
corporation and TXU XXXXX Energy Services Company, a Texas corporation, as
Originators, the Initial Receivables Purchaser as Purchaser and TXU Business
Services Company, a Texas corporation, as Collection Agent,
TXU Energy Retail Company LP, in its capacity as an Originator (in
such capacity, "TXU Retail") under the Receivables Purchase Agreement,
TXU Business Services Company, in its capacity as the Collection Agent
(in such capacity, the "Receivables Agent") under (a) that certain Third Amended
and Restated Trade Receivables Purchase and Sale Agreement, dated as of July 30,
2001, and as amended as of January 1, 2002, July 29, 2002, October 28, 2002,
January 24, 2003 and February 24, 2003, (as so amended and as it may be amended,
restated, modified or supplemented from time to time, the "Third Amended
Agreement") by and among the Initial Receivables Purchaser, the Receivables
Agent, Jupiter Securitization Corporation, a Delaware corporation ("JSC"),
Windmill Funding Corporation, a Delaware corporation ("WFC"), XXXXXX X.X., a New
York limited partnership ("Xxxxxx"), Bank One, NA (Main Office Chicago), a
national banking association ("Bank One"), as Managing Agent for JSC, ABN AMRO
Bank N.V., a Netherlands banking corporation ("ABN"), as Managing Agent for WFC,
and Citicorp North America, Inc., a Delaware corporation, individually ("CNAI")
and as a Managing Agent for Xxxxxx, and as Administrative Agent for itself and
the other Managing Agents, JSC, WFC, Xxxxxx and the other Owners (as defined
therein) and (b) that certain Trade Receivables Purchase and Sale Agreement,
dated as of July 30, 2001, and amended as of January 1, 2002, July 29, 2002,
October 28, 2002, January 24, 2003 and February 24, 2003 (as so amended and as
it may be amended, restated, modified or supplemented from time to time, the
"Parallel Purchase Agreement", and, together with the Third Amended Agreement,
the "Receivables Transfer Agreements") among the Initial Receivables Purchaser,
the Receivables Agent, Bank One, individually and as a Group Managing Agent,
ABN, individually and as a Group Managing Agent, and CNAI, individually and as a
Group Managing Agent, and as Administrative Agent for itself, Bank One, ABN and
the other Owners (in all such capacities under the Receivables Transfer
Agreements, the "Administrative Agent" and, together with Bank One, ABN, JSC,
WFC, Xxxxxx and the Initial Receivables Purchaser, and any future trustee,
purchaser, administrative agent or other entity purchasing or providing
financing (or acting as agent for such person) for the Eligible Assets (as
defined below) who become bound by this Agreement, the "Receivables Parties",
and each, individually, a "Receivables Party"),
Each of the Receivables Parties currently a party to the Receivables
Transfer Agreements and not otherwise identified in clause (a) above,
Oncor Electric Delivery Transition Bond Company LLC, a Delaware
limited liability company (the "Transition Bond Issuer"),
The Bank of New York, a New York banking corporation, in its capacity
as transition bond trustee (the "Transition Bond Trustee" and, together with the
Transition Bond Issuer, the "TC Parties"),
Oncor Electric Delivery Company, a Texas corporation, in its capacity
as the initial servicer of the Transition Property referred to below (in such
capacity, the "Initial TC Servicer"),
Oncor Electric Delivery Company, in its capacity as an Originator
under the Receivables Purchase Agreement (in such capacity, "Oncor", and,
together with TXU Retail, the "Receivables Sellers"),
Oncor Electric Delivery Company, in its individual capacity (in such
capacity, together with its successors and assigns in such capacity, the
"Utility"), and
The Administrative Agent.
RECITALS
WHEREAS, pursuant to the terms of the Receivables Purchase Agreement,
the Receivables Sellers and the other Originators parties thereto have sold and
may hereafter sell their Outstanding Receivables (as such term and the other
terms used but not otherwise defined herein but defined in the Third Amended
Agreement or the Receivables Purchase Agreement, as applicable, shall have the
respective meanings given to such terms set forth therein) other than Excluded
Receivables (the "Eligible Assets") and the Collections related thereto to the
Initial Receivables Purchaser and the Initial Receivables Purchaser has sold
interests in the Eligible Assets together with the Related Security and
Collections thereto to Xxxxxx, JSC and WFC pursuant to the Third Amended
Agreement and may engage in one or more sale, pledge or other transfer of
interests in the Eligible Assets ("Receivables Financings"); and
WHEREAS, the Public Utility Commission of Texas has issued a financing
order to the Utility in Xxxxxx Xx. 00000 dated August 5, 2002 (the "Financing
Order"); and
WHEREAS, pursuant to the terms of one or more Transition Property
Purchase and Sale Agreements (including the Series 2003 Transition Property
Purchase and Sale Agreement, to be dated as of July __, 2003 between the
Transition Bond Issuer and the Utility, in its capacity as Seller)
(collectively, as each may be amended, restated, modified or supplemented from
time to time, the "Transition Property Sale Agreements"), the Utility will sell
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to the Transition Bond Issuer the Utility's rights and interests under the
Financing Order (collectively, the "Transition Property"), including the
irrevocable right to impose, collect and receive through Transition Charges (as
such term is defined in Section 39.302(7) of Subchapter G of the Texas Public
Utility Regulatory Act), as authorized in the Financing Order, payable by retail
electric customers within the Utility's certificated service area as it existed
on May 1, 1999, amounts sufficient to pay principal and interest and to make
other deposits in connection with the issuance and the sale of Transition Bonds
(as defined below); and
WHEREAS, pursuant to the terms of the Indenture to be dated as of __,
2003 among the Transition Bond Issuer and the Transition Bond Trustee, as
Trustee and Securities Intermediary (as it may be amended, restated, modified or
supplemented from time to time by one or more Series Supplements, such Series
Supplements and Indenture being collectively referred to herein as the
"Indenture"), the Transition Bond Issuer will grant to the Transition Bond
Trustee a security interest in certain of the Transition Bond Issuer's assets,
including the Transition Property and the Transition Property Sale Agreements,
to secure the debt instruments issued pursuant to the Indenture (the "Transition
Bonds"); and
WHEREAS, pursuant to the terms of one or more Transition Property
Servicing Agreements (including the Series 2003 Transition Property Servicing
Agreement, to be dated as of June __, 2003 between the Transition Bond Issuer
and the Initial TC Servicer) (collectively, as each may be amended, restated,
modified or supplemented from time to time, the "Transition Property Servicing
Agreements"), the Initial TC Servicer will agree to provide for the benefit of
the Transition Bond Issuer servicing functions with respect to the Transition
Charges imposed in connection with the Transition Bonds of each series; and
WHEREAS, pursuant to the terms of the Receivables Purchase Agreement
and the Receivables Transfer Agreements, the Receivables Agent has agreed with
the Initial Receivables Purchaser to provide servicing, subservicing and
collection functions with respect to the Eligible Assets and the Collections
related to Eligible Assets; and
WHEREAS, the Receivables Purchase Agreement and the Receivables
Transfer Agreements provide that the Transition Property and the Transition
Charges do not constitute Eligible Assets; and
WHEREAS, Collections with respect to Eligible Assets are and will be
the subject of the Receivables Purchase Agreement and the Receivables Transfer
Agreements, and collections with respect to Transition Charges are and will be
the subject of the Transition Property Sale Agreements, the Indenture and the
Transition Property Servicing Agreements; and
WHEREAS, the parties hereto wish to agree upon their respective rights
relating to such Collections, collections with respect to Transition Property
and Transition Charges and any bank accounts into which the same may be
deposited, as well as other matters of common interest to them which arise under
or result from the coexistence of the Receivables Purchase Agreement, the
Receivables Transfer Agreements, the Transition Property Sale Agreements, the
Indenture and the Transition Property Servicing Agreements.
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. Acknowledgment of Ownership Interests and Security
Interests. Each of the Receivables Parties, the Receivables Agent and the
Receivables Sellers hereby acknowledges the ownership interest of the Transition
Bond Issuer in the Transition Property, including the Transition Charges and the
revenues, collections, claims, rights, payments, money and proceeds arising
therefrom, or from the investment or reinvestment thereof, and the security
interest in favor of the Transition Bond Trustee for the benefit of itself, the
holders of Transition Bonds and any credit enhancement provider (as contemplated
in the Financing Order and described in the applicable prospectus supplement
relating to the related series of Transition Bonds) in the Transition Property
and in certain other property as granted by the Transition Bond Issuer in the
Series Supplements to the Indenture (such security interest is herein referred
to as the "Transition Bond Trustee Collateral.") Each of the TC Parties and the
Initial TC Servicer hereby acknowledges the ownership and security interest of
the Initial Receivables Purchaser in the Eligible Assets and the revenues,
Collections, claims, rights, payments, money and proceeds arising therefrom, and
the interests of the Receivables Parties, whether now existing or hereafter
created, in the Eligible Assets and the related property. The Receivables
Parties further acknowledge that, notwithstanding anything in the Receivables
Purchase Agreement or the Receivables Transfer Agreements to the contrary, none
of the Receivables Parties has any interest in the Transition Property, the
Transition Charges or the Transition Bond Trustee Collateral and the TC Parties
further acknowledge that, notwithstanding anything in the Transition Property
Sale Agreements or the Indenture to the contrary, none of the TC Parties has any
interest in the Eligible Assets and the related property.
SECTION 2. Deposit Accounts. Each of the Receivables Parties, the
Receivables Agent, the TC Parties and the Initial TC Servicer acknowledges that
Collections relating to the Eligible Assets and collections with respect to or
derived from Transition Property and Transition Charges may from time to time be
deposited into one or more designated accounts of the Receivables Agent (the
"Deposit Accounts"). Subject to Section 5 below, (i) the Receivables Agent
agrees to (a) maintain the Deposit Accounts for the benefit of the Receivables
Parties and the TC Parties, as their respective interests may appear, and (b)
allocate and remit funds from the Deposit Accounts on a daily basis to TXU
Retail in the case of collections relating to the Transition Charges and to the
Initial Receivables Purchaser in the case of Collections relating to the
Eligible Assets, provided that, in the case of a shortfall in payment of amounts
billed, such allocation and remittances to TXU Retail and to the Initial
Receivables Purchaser shall be made, first, on a pro rata basis as between
Transition Charges and Eligible Assets (excluding late charges) based on the
respective amounts of Transition Charges and Eligible Assets billed to each
retail electric customer and, second, by allocating any late charges to the
Utility, and (ii) TXU Retail agrees to remit funds relating to the Transition
Charges received from the Receivables Agent to, or as directed by, the Initial
TC Servicer for the benefit of the Transition Bond Trustee. The Receivables
Agent further agrees to maintain records as to the amounts deposited into the
Deposit Accounts, the amounts remitted therefrom and the allocation as provided
in clause (i)(b) above. The TC Parties, the Utility, the Receivables Parties and
the Receivables Sellers shall each have the right to request an accounting from
time to time, but no more frequently than once monthly, of collections,
allocations and remittances by the Receivables Agent relating to the Deposit
Accounts. The Receivables Agent or the Replacement Collection Agent (as defined
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below), as the case may be, shall pay all reasonable fees and expenses of such
accounting, and shall (i) treat such fees and expenses as having been incurred
in its role as Collection Agent under the Receivables Transfer Agreements if
such request for an accounting is made by any of the Receivables Parties or the
Receivables Sellers and (ii) be reimbursed by the Initial TC Servicer or the
Replacement Servicer (as defined below), as the case may be, if such request for
an accounting is made by the TC Parties or the Utility.
Each of the TC Parties and the Initial TC Servicer waives any interest
in deposits to the Deposit Accounts to the extent that they constitute
Collections on account of Eligible Assets, and each of the Receivables Parties
and the Receivables Agent waives any interest in deposits to the Deposit
Accounts to the extent that they constitute collections on account of Transition
Charges. Each of the parties hereto acknowledges the respective ownership
interests and security interests of the others in amounts on deposit in the
Deposit Accounts to the extent of their respective interests as described in
this Agreement.
SECTION 3. Collections. Each of the Receivables Parties and the
Receivables Agent hereby acknowledges that, notwithstanding anything in the
Receivables Purchase Agreement or the Receivables Transfer Agreements to the
contrary, all collections of Transition Charges are property of the Transition
Bond Issuer pledged by the Transition Bond Issuer to the Transition Bond Trustee
for the benefit of itself, the holders of Transition Bonds and any credit
enhancement provider. Each of the TC Parties and the Initial TC Servicer hereby
acknowledges that, notwithstanding anything in the Transition Property Sale
Agreements or the Indenture to the contrary, all Collections related to Eligible
Assets are the property of the Initial Receivables Purchaser and are and will be
the subject of Receivables Financings, subject to the terms of the Receivables
Purchase Agreement or the Receivables Transfer Agreements.
If any of the Receivables Parties or the Receivables Agent (other than
in its capacity as holder of the Deposit Accounts) receives any payments in
respect of the Transition Charges or the Transition Bond Trustee Collateral,
they agree to pay to, or as directed by, the Initial TC Servicer for the benefit
of the Transition Bond Trustee all such payments received by them in respect
thereof as soon as practicable after receipt thereof by them, and prior to such
remittance to the Transition Bond Trustee they agree that such amounts are held
in trust for the Transition Bond Trustee. If any of the TC Parties or the
Initial TC Servicer receives any payments in respect of the Eligible Assets,
they agree to pay to, or as directed by, the Receivables Agent in writing all
such payments received by them in respect thereof as soon as practicable after
receipt thereof by them, and prior to such remittance they agree that such
amounts are held in trust for the Initial Receivables Purchaser. Any costs and
expenses associated with paying over any payments to the party entitled thereto
as contemplated by this paragraph shall be borne by the party responsible for
erroneously transferring such payment in the first instance; provided that any
other costs and expenses associated with the actions contemplated in this
Section 3 will be the responsibility of the Receivables Agent.
SECTION 4. Time or Order of Attachment. The acknowledgments contained
in Sections 1, 2 and 3 above are applicable irrespective of the time or order of
attachment or perfection of security or ownership interests or the time or order
of filing or recording of financing statements or mortgages or filings under the
Securitization Law (as defined in the Indenture).
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SECTION 5. Servicing.
(a) The Receivables Parties recognize the existence of rights in favor
of the Transition Bond Trustee under the Indenture and the Transition Property
Servicing Agreements to (i) replace Oncor Electric Delivery Company as the
Initial TC Servicer thereunder and (ii) take control over collections relating
to the Transition Charges, under certain limited circumstances described in the
Indenture and the Transition Property Servicing Agreements, subject to
applicable law and regulations, the Financing Order and the terms of this
Section 5. The TC Parties recognize the existence of rights in favor of the
Receivables Parties under the Receivables Purchase Agreement and the Receivables
Transfer Agreements to (i) replace TXU Business Services Company as servicer,
subservicer or Collection Agent thereunder and (ii) take control over
Collections relating to Eligible Assets, under certain limited circumstances
described in the Receivables Purchase Agreement and the Receivables Transfer
Agreements, subject to applicable law and regulations and the terms of this
Section 5.
(b) (i) Notwithstanding the provisions of Section 5(a) above, the
Receivables Parties acknowledge that under the terms of the Transition Property
Servicing Agreements, upon a default by the Initial TC Servicer under the
applicable Transition Property Servicing Agreement, the Transition Bond Trustee
will be required to exercise its right to appoint a replacement servicer, with
respect to the related series of Transition Bonds, upon the instruction of the
requisite percentage of holders of Transition Bonds of such series. After
payment of Transition Charges as contemplated in this Section 5(b)(i), the
Transition Bond Trustee shall, or shall cause the Initial TC Servicer or
Replacement Servicer (as defined below) to, remit all Eligible Assets that
remain in the possession of the Initial TC Servicer or Replacement Servicer,
after such contemplated payment of Transition Charges, to the Initial
Receivables Purchaser by paying such Eligible Assets directly into the
applicable lock-box accounts subject to a Lock-Box Agreement (as defined in the
Receivables Transfer Agreements) executed by and among the Administrative Agent,
the bank or financial institution that maintains such lock-box accounts and the
Receivables Agent, as agent for the Initial Receivables Purchaser, giving
control of such lock-box account to the Administrative Agent.
(ii) Notwithstanding the provisions of Section 5(a) above, the
Receivables Parties acknowledge that under the terms of Finding of Fact No.
58(e)(3) and Finding of Fact No. 58(e)(2), respectively, of the Financing Order
under certain limited circumstances specified in the Financing Order, upon a
default by a retail electric provider, among alternative options to be selected
and implemented by the retail electric provider, (x) certain revenues and
receipts from retail electric customers of such retail electric provider,
including collections relating to the Transition Charges and Collections
relating to Eligible Assets, may be paid directly into a lock-box account
controlled by the Initial TC Servicer and in that case amounts in such account
must be applied first to pay Transition Charges then due and owing before the
remaining amounts are released to the retail electric provider, or (y) other
mutually suitable and agreeable arrangements with the Initial TC Servicer may be
immediately implemented to pay Transition Charges then due. With respect to
Finding of Fact No. 58(e) of the Financing Order, TXU Retail, for the benefit of
the Receivables Parties, hereby agrees to the following:
(A) it irrevocably and unconditionally waives all right to select
and implement the option pursuant to Finding of Fact No. 58(e)(3) of the
Financing Order; and
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(B) if it selects the option pursuant to Finding of Fact No.
58(e)(2) of the Financing Order, it (x) shall provide written notice within
three Business Days to the Administrative Agent and each Managing Agent,
including a written report in reasonable detail of the proposed arrangements to
pay Transition Charges then due, (y) shall not implement such proposed
arrangements unless such proposed arrangements are in form and substance
reasonably satisfactory to the Administrative Agent and each Managing Agent
(taking into account continuity of perfection and priority of security
interests, priority of payment and such other matters as the Administrative
Agent and each Managing Agent shall deem relevant to protect their interests
consistent with the terms of this Agreement) and the Administrative Agent and
each Managing Agent consents to such proposed arrangements in writing, such
consent not to be unreasonably withheld or delayed.
(c) (i) In the event that the Transition Bond Trustee is entitled to
and desires to exercise its right to replace Oncor Electric Delivery Company as
the Initial TC Servicer with respect to a series of Transition Bonds, or a
Receivables Party is entitled to and desires to exercise its right to replace
TXU Business Services Company as Receivables Agent, the party so desiring to
exercise such right shall promptly give written notice to the other (the
"Servicer Notice") and consult with the other with respect to the Person who
would replace the Initial TC Servicer or the Receivables Agent, as applicable,
in such capacities. Any successor in such capacities shall be agreed to by both
the Transition Bond Trustee and the Receivables Parties within ten Business Days
of the date of the Servicer Notice, and such successor shall be subject to
satisfaction of the Rating Agency Condition (as defined below). The Person named
as replacement Initial TC Servicer or replacement Receivables Agent in
accordance with this Section 5 is referred to herein as the "Replacement
Servicer" or "Replacement Collection Agent," respectively. In the event that the
Transition Bond Trustee and the Receivables Parties are unable to agree upon a
Replacement Servicer or Replacement Collection Agent, as the case may be, on or
before the tenth Business Day occurring from and after the Servicer Notice, a
Replacement Servicer or Replacement Collection Agent, as the case may be, shall
be promptly selected by the independent public accounting firm representing the
Utility at such time, subject to the Rating Agency Condition. The parties hereto
agree that no retail electric provider affiliated with the Utility will
constitute a successor to the Utility, as TC Servicer under this Agreement.
(ii) In the event that the Transition Bond Trustee is entitled to and
desires to exercise its rights to redirect collections relating to the
Transition Charges, or a Receivables Party is entitled to and desires to
exercise its rights to redirect Collections relating to the Eligible Assets,
then the parties hereto agree that a financial institution chosen in accordance
with the provisions set forth below (the "Designated Account Holder") shall
replace each of the Initial TC Servicer (or Replacement Servicer, as the case
may be) and Receivables Agent (or Replacement Collection Agent, as the case may
be) with respect to the collection and disbursement of Transition Charges and
related collections and Eligible Assets and Collections; provided that, with
respect to the Deposit Accounts, Lock-Box Agreements (as defined in the
Receivables Transfer Agreements), in form and substance, satisfactory to the
Administrative Agent, shall be executed by the Designated Account Holder, the
bank or financial institution that maintains such Deposit Accounts and the
Administrative Agent (or such parties shall amend previously executed Lock-Box
Agreements related to such Deposit Accounts, in form and substance satisfactory
to the Administrative Agent and each Managing Agent), giving the Administrative
Agent and Transition Bond Trustee control of such Deposit Accounts and
perfecting the Receivable Parties' security interest in those certain revenues
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and receipts from retail electric customers that are Collections relating to
Eligible Assets and the Transition Bond Trustee's security interest in those
collections relating to Transition Charges; provided further that the
Administrative Agent and the Transition Bond Trustee shall receive proper
undated executed Post Office Box Notices (as defined in the Receivables Transfer
Agreements), in form and substance satisfactory to the Administrative Agent,
from the [Initial Receivables Purchaser] to any current and future United States
Post Offices that maintain Post Office Boxes (as defined in the Receivables
Transfer Agreements) receiving payments related to those certain revenues and
receipts from retail electric customers that are Collections relating to
Eligible Assets and collections that are related to the Transition Charges and,
giving the Administrative Agent and Transition Bond Trustee control of such Post
Office Boxes and perfecting the Receivable Parties' security interest in such
Collections relating to Eligible Assets and the Transition Bond Trustee's
security interest in collections relating to Transition Charges. The parties
hereto agree that the Designated Account Holder shall be a financial institution
selected by the Transition Bond Trustee in accordance with the terms of the
Indenture and the Receivables Parties, (x) which has, at the time of its
appointment, a minimum capital of $50,000,000 and is experienced in collecting
utility company receivables and (y) whose appointment shall be subject to
satisfaction of the Rating Agency Condition. In the event that the Transition
Bond Trustee and the Receivables Parties are unable to agree within ten Business
Days upon a Designated Account Holder (or a replacement Designated Account
Holder if the then current Designated Account Holder is unable or unwilling to
act in that capacity or defaults in its obligations under this Agreement in such
capacity), a Designated Account Holder shall be promptly selected by the
independent public accounting firm representing the Utility at such time,
subject to the satisfaction of the Rating Agency Condition.
(iii) Upon appointment of a Designated Account Holder pursuant to
Section 5(c)(ii) above, the parties hereto agree that the Designated Account
Holder shall be instructed by the Utility to, and the Designated Account Holder
shall, (i) allocate and remit funds from the Deposit Accounts, in amounts
calculated by the Utility, with such calculations provided to the Designated
Account Holder on a daily basis to the persons entitled thereto, being the
Transition Bond Trustee in the case of all collections relating to the
Transition Charges and the Receivables Parties in the case of all Collections
relating to the Eligible Assets, provided that, in the case of a shortfall of
funds in the Deposit Accounts, such allocation and remittances shall be made,
first, on a pro rata basis as between Transition Charges and Eligible Assets,
excluding late charges, based on the respective amounts of Transition Charges
and Eligible Assets billed to each retail electric customer and, second, by
allocating any late charges to the Utility, and (ii) maintain records as to the
amounts deposited into such account, the amounts remitted therefrom and the
allocation as provided in clause (i) above. The fees and expenses of the
Designated Account Holder shall be payable as follows: that portion of those
fees and expenses allocable to collections relating to the Transition Charges
shall be payable by the Initial TC Servicer or the Replacement Servicer, as the
case may be, from, and only to the extent of, the servicer fees provided for in
the Transition Property Servicing Agreements, and that portion of those fees and
expenses allocable to Collections relating to the Eligible Assets shall be
payable by the Receivables Agent or the Replacement Collection Agent, as the
case may be, from, and only to the extent of, the servicer fees provided for in
the Receivables Purchase Agreement or the Receivables Transfer Agreements, as
applicable. The TC Parties, the Utility, the Receivables Parties and the
Receivables Sellers shall each have the right to require an accounting from time
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to time, but no more frequently than once monthly, of collections, allocations
and remittances by the Designated Account Holder. The Designated Account Holder
shall pay all reasonable fees and expenses of such accounting, and shall (i)
treat such fees and expenses as having been incurred in its role as Collection
Agent under the Receivables Transfer Agreements or the Receivables Purchase
Agreement, as applicable, if such request for an accounting is made by any of
the Receivables Parties or the Receivables Sellers and (ii) be reimbursed by the
Initial TC Servicer or the Replacement Servicer, as the case may be, if such
request for an accounting is made by the TC Parties or the Utility.
(d) If a Replacement Servicer or Replacement Collection Agent cannot
be appointed in accordance with Section 5(c)(i) above, then either the
Transition Bond Trustee or the Receivables Parties may exercise its rights under
Section 5(c)(ii) above for the appointment of a Designated Account Holder.
(e) Anything in this Agreement to the contrary notwithstanding, any
action taken by either the Transition Bond Trustee or a Receivables Party to
appoint a Replacement Servicer or Replacement Collection Agent or designate the
Designated Account Holder pursuant to this Section 5 shall be subject to the
Rating Agency Condition and the consent, if required by law or the Financing
Order, of the Public Utility Commission of Texas. For the purposes of this
Agreement, the "Rating Agency Condition" means, with respect to any such action,
notification to each rating agency then rating any class or series of Transition
Bonds and any securities issued pursuant to any indenture, receivables transfer
agreement or other document or agreement executed by the Receivables Sellers and
the Receivables Parties in connection with a Receivables Financing or any
commercial paper issued to fund the related sale or financing of Eligible Assets
(collectively, the "Securities") of such action, and the receipt of written
notification from each such rating agency, other than, with respect to
Transition Bonds only, Moody's (as defined in the Indenture), that such action
will not result in a reduction or withdrawal of its then current rating on
Transition Bonds or the Securities. The parties hereto acknowledge and agree
that the approval or the consent of the rating agencies which is required in
order to satisfy the Rating Agency Condition is not subject to any standard of
commercial reasonableness, and the parties are bound to satisfy this condition
whether or not the rating agencies are unreasonable or arbitrary.
SECTION 6. Sharing of Information. Each of the parties hereto agrees
to cooperate with each other and make available to each other or any Replacement
Servicer or Replacement Collection Agent any and all records and other data
reasonably relevant to the Transition Charges and Eligible Assets which it may
have in its possession or may from time to time receive from the Initial TC
Servicer, the Receivables Agent or any Replacement Servicer or Replacement
Collection Agent, including, without limitation, any and all computer programs,
data files, documents, instruments, files and records and any receptacles and
cabinets containing the same, unless the release of such information conflicts
with applicable laws. Any party asked to make available any such information may
redact pricing or other sensitive commercial information and/or require such
information to be made available pursuant to a confidentiality agreement if in
such party's reasonable judgment the making available of such information would
not reasonably be required to effectuate the provisions of this Agreement. The
cost of making such information available, including entering into
confidentiality and use agreements related thereto, shall be borne by the party
requesting such information. The Initial TC Servicer hereby consents to the
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release of information regarding the Initial TC Servicer pursuant to this
Section 6 and the Receivables Agent hereby consents to the release of
information regarding the Receivables Agent pursuant to this Section 6.
SECTION 7. No Joint Venture. Nothing herein contained shall be deemed
as effecting a joint venture among any of the Receivables Parties, the TC
Parties and the Utility.
SECTION 8. Method of Calculation and Allocation. Notwithstanding any
provision herein to the contrary, for the purpose of this Agreement only, the
Receivables Parties hereby consent and agree to the method of calculation and
allocation of payments in accordance with Annex 1 of the applicable Transition
Property Servicing Agreement in the form attached hereto and irrevocably waive
any right to object to or enjoin such calculation, payment or allocation. Such
consent and agreement shall not relieve the Receivables Agent of any of its
obligations to make payments in accordance with the terms of the Receivables
Transfer Agreements.
SECTION 9. Termination. This Agreement shall terminate upon the
earlier to occur of (i) payment in full of the Transition Bonds or (ii) the
Eligible Assets cease to be the subject of any Receivables Financing; provided,
however, that this Agreement shall terminate as to any Receivables Party if such
party ceases to be a party to a Receivables Financing; and provided further,
that this Agreement shall terminate upon the termination of the Receivables
Purchase Agreement or either Receivables Transfer Agreement, or by agreement of
the parties hereto; and provided further, that the understandings and
acknowledgments contained in Sections 1, 2, 3 and 4 hereof shall survive the
termination of this Agreement.
SECTION 10. Governing Law. This Agreement shall be governed by the
laws of the State of New York, (including without limitation Section 5-1401 of
the New York General Obligations law or any successor to such statute).
SECTION 11. Further Assurances. The parties hereto each agree, at
their own expense, to execute any and all agreements, instruments, financing
statements, releases and any and all other documents reasonably requested by the
other in order to effectuate the intent of this Agreement. In each case where a
release is to be given pursuant to this Agreement, the term "release" shall
include any documents or instruments necessary to effect a release, as
contemplated by this Agreement. All releases, subordinations and other
instruments submitted to the executing party are to be prepared at no expense to
such party.
SECTION 12. Limitation on Rights of Others. This Agreement is solely
for the benefit of the Receivables Parties, the Receivables Agent, the
Receivables Sellers, the Initial TC Servicer, the Transition Bond Issuer, the
Transition Bond Trustee for the benefit of itself, the holders of Transition
Bonds and any credit enhancement provider, and the Utility, and no other person
or entity shall have any rights, benefits, priority or interest under or because
of the existence of this Agreement.
SECTION 13. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same instrument.
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Delivery of an executed counterpart of a signature page to this Agreement by
telecopier followed by the physical delivery of the original executed signature
page shall be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 14. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement or the Indenture, each of the parties hereto
hereby covenants and agrees that it shall not, prior to the date which is one
year and one day after the termination of the Indenture and the payment in full
of Transition Bonds of all series and any other amounts owed under the
Indenture, including, without limitation, any amounts owed to third-party credit
enhancers or under any interest rate swap agreement, acquiesce, petition or
otherwise invoke or cause the Transition Bond Issuer to invoke the process of
any court or government authority for the purpose of commencing or sustaining a
case against the Transition Bond 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 Transition
Bond Issuer or any substantial part of the property of the Transition Bond
Issuer, or ordering the winding up or liquidation of the affairs of the
Transition Bond Issuer.
Notwithstanding any prior termination of this Agreement or the
Receivables Purchase Agreement or the Receivables Transfer Agreements, each of
the parties hereto hereby covenants and agrees that it shall not, prior to the
date which is one year and one day after the termination of the Receivables
Transfer Agreements and the payment in full of the Securities, and any other
amounts owed under the Receivables Transfer Agreements, acquiesce, petition or
otherwise invoke or cause any Receivables Party (and, for so long as the
Indenture Trustee acts as trustee for the related Receivables Financing, any
entity that issues commercial paper in connection with such Receivables
Financing) that issues commercial paper (a "CP Conduit") to invoke the process
of any court or government authority for the purpose of commencing or sustaining
a case against any CP Conduit under any federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of any CP Conduit or any
substantial part of the property of any CP Conduit, or ordering the winding up
or liquidation of the affairs of any CP Conduit.
SECTION 15. Trustee. The Bank of New York, as Transition Bond Trustee,
in acting hereunder is entitled to all rights, benefits, protections, immunities
and indemnities accorded to it under the Indenture.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
TXU RECEIVABLES COMPANY,
AS INITIAL RECEIVABLES PURCHASER
By:____________________________________
Name:__________________________________
Title:_________________________________
TXU ENERGY RETAIL COMPANY LP,
IN ITS CAPACITY AS AN ORIGINATOR UNDER
THE RECEIVABLES PURCHASE AGREEMENT
By:____________________________________
General Partner
By:____________________________________
Name:__________________________________
Title:_________________________________
TXU BUSINESS SERVICES COMPANY,
AS RECEIVABLES AGENT
By:____________________________________
Name:__________________________________
Title:_________________________________
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ONCOR ELECTRIC DELIVERY COMPANY,
AS INITIAL TC SERVICER
By:____________________________________
Name:__________________________________
Title:_________________________________
ONCOR ELECTRIC DELIVERY COMPANY,
AS UTILITY
By:____________________________________
Name:__________________________________
Title:_________________________________
ONCOR ELECTRIC DELIVERY COMPANY,
AS A RECEIVABLES SELLER
By:____________________________________
Name:__________________________________
Title:_________________________________
13
ONCOR ELECTRIC DELIVERY
TRANSITION BOND COMPANY LLC,
AS TRANSITION BOND ISSUER
By:____________________________________
Name:__________________________________
Title:_________________________________
THE BANK OF NEW YORK,
AS TRANSITION BOND TRUSTEE
By:____________________________________
Name:__________________________________
Title:_________________________________
CITICORP NORTH AMERICA, INC.,
INDIVIDUALLY AND AS MANAGING AGENT FOR
XXXXXX, GROUP MANAGING AGENT AND
ADMINISTRATIVE AGENT
By:____________________________________
Name:__________________________________
Title:_________________________________
BANK ONE, NA (MAIN OFFICE CHICAGO),
INDIVIDUALLY AND AS MANAGING AGENT FOR
JSC AND GROUP MANAGING AGENT
By:____________________________________
Name:__________________________________
Title:_________________________________
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ABN AMRO BANK N.V.,
INDIVIDUALLY AND AS MANAGING AGENT FOR
WFC AND GROUP MANAGING AGENT
By:____________________________________
Name:__________________________________
Title:_________________________________
JUPITER SECURITIZATION CORPORATION
By:____________________________________
Name:__________________________________
Title:_________________________________
WINDMILL FUNDING CORPORATION
By:____________________________________
Name:__________________________________
Title:_________________________________
XXXXXX X.X.
By: CITICORP NORTH AMERICA, INC.
Its Managing Agent
By:______________________________
Name:____________________________
Title:___________________________
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