EXHIBIT 10.3
FORM OF SERVICING AGREEMENT
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INTANGIBLE TRANSITION PROPERTY SERVICING AGREEMENT
between
COMED FUNDING, LLC
Grantee
and
COMMONWEALTH EDISON COMPANY,
Servicer
Dated as of [ ], 1998
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitional Provisions. . . . . . . . . . . . . . . 3
ARTICLE II
Appointment and Authorization
SECTION 2.01. Appointment of Servicer; Acceptance of Appointment . . . . 4
SECTION 2.02. Authorization. . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03. Dominion and Control Over the Intangible Transition
Property . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
Billing Services
SECTION 3.01. Duties of Servicer.. . . . . . . . . . . . . . . . . . . . 5
SECTION 3.02. Servicing and Maintenance Standards. . . . . . . . . . . . 7
SECTION 3.03. Certificate of Compliance. . . . . . . . . . . . . . . . . 8
SECTION 3.04. Annual Report by Independent Public Accountants. . . . . . 9
ARTICLE IV
Services Related to Reconciliation Adjustments and True-Up Adjustments
SECTION 4.01. Reconciliation Adjustments and True-Up Adjustments . . . .10
SECTION 4.02. Limitation of Liability. . . . . . . . . . . . . . . . . .14
ARTICLE V
The Intangible Transition Property
SECTION 5.01. Custody of Intangible Transition Property Records. . . . .16
SECTION 5.02. Duties of Servicer as Custodian . . . . . . . . . . . . . 16
SECTION 5.03. Instructions; Authority to Act . . . . . . . . . . . . . .18
SECTION 5.04. Custodian's Indemnification. . . . . . . . . . . . . . . .18
SECTION 5.05. Effective Period and Termination . . . . . . . . . . . . .19
SECTION 5.06. General Indemnification of Indenture Trustee and
Delaware Trustee . . . . . . . . . . . . . . . . . . . . .19
ARTICLE VI
The Servicer
SECTION 6.01. Representations and Warranties of Servicer . . . . . . . .20
SECTION 6.02. Indemnities of Servicer; Release of Claims . . . . . . . .23
SECTION 6.03. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer . . . . . . . . . . . . . . . . .25
SECTION 6.04. Limitation on Liability of Servicer and Others . . . . . .26
SECTION 6.05. ComEd Not to Resign as Servicer. . . . . . . . . . . . . .26
SECTION 6.06. Servicing Compensation . . . . . . . . . . . . . . . . . .27
SECTION 6.07. Compliance with Applicable Law . . . . . . . . . . . . . .28
SECTION 6.08. Access to Certain Records and Information Regarding
Intangible Transition Property . . . . . . . . . . . . . .28
SECTION 6.09. Appointments . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 6.10. No Servicer Advances . . . . . . . . . . . . . . . . . . .29
SECTION 6.11. Remittances. . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 6.12 Compliance with Servicing Standard; Changes in
ICC Tariffs. . . . . . . . . . . . . . . . . . . . . . . .31
ARTICLE VII
Default
SECTION 7.01. Servicer Default . . . . . . . . . . . . . . . . . . . . .32
SECTION 7.02. Appointment of Successor . . . . . . . . . . . . . . . . .34
SECTION 7.03. Waiver of Past Defaults. . . . . . . . . . . . . . . . . .35
SECTION 7.04. Notice of Servicer Default . . . . . . . . . . . . . . . .35
ARTICLE VIII
Miscellaneous Provisions
SECTION 8.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 8.02. Maintenance of Records . . . . . . . . . . . . . . . . . .37
SECTION 8.03. Notices. . . . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 8.04. Assignment . . . . . . . . . . . . . . . . . . . . . . . .38
SECTION 8.05. Limitations on Rights of Others. . . . . . . . . . . . . .38
SECTION 8.06. Severability . . . . . . . . . . . . . . . . . . . . . . .39
SECTION 8.07. Separate Counterparts. . . . . . . . . . . . . . . . . . .39
SECTION 8.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . .39
SECTION 8.09. Governing Law. . . . . . . . . . . . . . . . . . . . . . .39
SECTION 8.10. Assignments to Note Issuer and Indenture Trustee . . . . .39
SECTION 8.11. Nonpetition Covenants. . . . . . . . . . . . . . . . . . .40
SECTION 8.12. Limitation of Liability. . . . . . . . . . . . . . . . . .40
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EXHIBITS AND SCHEDULES
Exhibit A Form of Monthly Servicer's Certificate
Exhibit B Form of Certificate of Compliance
Exhibit C Form of Amendatory Tariff
Exhibit D Form of Quarterly Servicer's Certificate
Schedule 4.01(a) Expected Amortization Schedule
Schedule 6.01(f) No Proceedings
ANNEXES
Annex I Servicing Procedures
Schedule 6 to
Annex I Calculation of Aggregate Remittance Amount
Annex II Routine Quarterly True-Up Mechanism
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INTANGIBLE TRANSITION PROPERTY SERVICING AGREEMENT dated as of [ ], 1998,
between COMED FUNDING LLC, a Delaware limited liability company (the "Grantee"),
and COMMONWEALTH EDISON COMPANY, an Illinois corporation, as Servicer (the
"Servicer").
RECITALS
A. Pursuant to the Funding Law and the 1998 Transitional Funding Order,
the Grantee and the Note Issuer are concurrently entering into the Sale
Agreement, pursuant to which the Grantee is selling the 1998 Intangible
Transition Property to the Note Issuer, and the Grantee may sell Subsequent
Intangible Transition Property to the Note Issuer pursuant to Subsequent Sale
Agreements.
B. In connection with its ownership of the Intangible Transition Property
and in order to collect the IFCs, the Grantee desires to engage the Servicer to
carry out the functions described herein. The Servicer currently performs
similar functions for itself with respect to its own charges to its customers
and may in the future perform such functions for others. In addition, the
Grantee desires to engage the Servicer to act on its behalf in making
Reconciliation Adjustments and True-Up Adjustments. The Servicer desires to
perform all of these activities on behalf of the Grantee.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. (a) Capitalized terms used herein and not
otherwise defined herein have the meanings assigned to them in that certain
Indenture (including Appendix A thereto) dated as of the date hereof between the
Note Issuer and Xxxxxx Trust and Savings Bank,
as the Indenture Trustee, as the same may be amended, supplemented or otherwise
modified from time to time (the "INDENTURE").
(b) Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
"AGREEMENT" means this Intangible Transition Property Servicing Agreement,
together with all Exhibits, Schedules, Annexes and Attachments hereto, as the
same may be amended, supplemented and otherwise modified from time to time.
"ANNUAL ACCOUNTANT'S REPORT" has the meaning set forth in Section 3.04.
"CERTIFICATE OF COMPLIANCE" has the meaning set forth in Section 3.03.
"COLLECTIONS CURVES" means the Monthly Collections Curves.
"DAILY REMITTANCE" has the meaning set forth in Section 6.11(b).
"INTANGIBLE TRANSITION PROPERTY RECORDS" has the meaning assigned to that
term in Section 5.01.
"LOSSES" has the meaning assigned to that term in Section 5.04.
"MONTHLY COLLECTIONS CURVES" has the meaning set forth on SCHEDULE 6 to
Annex I hereto.
"OFFICER'S CERTIFICATE" means a certificate signed by a Responsible
Officer.
"QUARTER" means each calendar quarter, specifically:
January 1 to and including March 31;
April 1 to and including June 30;
July 1 to and including September 30; and
October 1 to and including December 31.
"RETIREMENT OF THE NOTES" means the day on which the final distribution is
made to the Indenture Trustee in respect of the last Outstanding Notes.
"SERVICER DEFAULT" means an event specified in Section 7.01.
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"SERVICING STANDARD" means the obligation of the Servicer to calculate,
collect, apply, remit and reconcile proceeds of the Intangible Transition
Property, including IFC Payments, and all other Note Collateral for the benefit
of the Note Issuer and the Noteholders (i) with the same degree of care and
diligence as the Servicer applies with respect to payments owed to it for its
own account, (ii) in accordance with procedures and requirements established by
the ICC for collection of electric utility tariffs and (iii) in accordance with
the other terms of this Agreement.
"TERMINATION NOTICE" has the meaning assigned to that term in Section 7.01.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) Non-capitalized terms used herein which are defined in the Public
Utilities Act shall, as the context requires, have the meanings assigned to such
terms in the Public Utilities Act, but without giving effect to amendments to
the Public Utilities Act after the date hereof which have a material adverse
effect on the Note Issuer or the Holders.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) 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, Exhibit, Annex
and Attachment references contained in this Agreement are references to
Sections, Schedules, Exhibits, Annexes and Attachments in or to this Agreement
unless otherwise specified; and the term "including" shall mean "including
without limitation."
(d) 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 forms of such terms.
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ARTICLE II
APPOINTMENT AND AUTHORIZATION
SECTION 2.01. APPOINTMENT OF SERVICER; ACCEPTANCE OF APPOINTMENT. Subject
to Section 6.05 and Article 7, the Grantee appoints the Servicer, and the
Servicer accepts such appointment, to perform the Servicer's obligations
pursuant to this Agreement on behalf of and for the benefit of the Grantee or
any assignee thereof in accordance with the terms of this Agreement and
applicable law. This appointment and the Servicer's acceptance thereof may not
be revoked except in accordance with the express terms of this Agreement.
SECTION 2.02. AUTHORIZATION. With respect to all or any portion of the
Intangible Transition Property, the Servicer shall be and is authorized and
empowered by the Grantee to (a) execute and deliver, on behalf of itself and/or
the Grantee, as the case may be, any and all instruments, documents or notices,
and (b) on behalf of itself and/or the Grantee, as the case may be, make any
filing and participate in proceedings of any kind with any governmental
authorities, including with the ICC. The Grantee shall furnish the Servicer
with such documents as have been prepared by the Servicer for execution by the
Grantee, and with such other documents as may be in the Grantee's possession, as
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder. Upon the Servicer's written request, the
Grantee shall furnish the Servicer with any powers of attorney or other
documents necessary or appropriate to enable the Servicer to carry out its
duties hereunder.
SECTION 2.03. DOMINION AND CONTROL OVER THE INTANGIBLE TRANSITION
PROPERTY. Notwithstanding any other provision herein, the Grantee shall have
dominion and control over the Intangible Transition Property, and the Servicer,
in accordance with the terms hereof, is acting solely as the servicing agent and
custodian for the Grantee with respect to the Intangible Transition Property and
the Intangible Transition Property Records. The Servicer shall not take
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any action that is not authorized by this Agreement, that is not consistent with
its customary procedures and practices, or that shall impair the rights of the
Grantee in the Intangible Transition Property, in each case unless such action
is required by law or court or regulatory order.
ARTICLE III
BILLING SERVICES
SECTION 3.01. DUTIES OF SERVICER. The Servicer, as agent for the Grantee,
shall have the following duties:
(a) DUTIES OF SERVICER GENERALLY. The Servicer's duties in general
shall include management, servicing and administration of the Intangible
Transition Property (including maintaining records of the cumulative total
of IFC Collections and verifying that such amount has not exceeded any cap
established by the ICC pursuant to a Funding Order)(1); obtaining meter
reads, calculating usage, billing, collections and posting of all payments
in respect of the Intangible Transition Property; responding to inquiries
by Customers, the ICC or any federal, local or other state governmental
authorities with respect to the Intangible Transition Property; delivering
Bills to Customers and ARES, investigating and handling delinquencies,
processing and depositing collections and making periodic remittances;
furnishing periodic reports to the Grantee, the Note Issuer, the Indenture
Trustee and the Rating Agencies; and taking all necessary action in
connection with Reconciliation Adjustments and True-Up Adjustments as set
forth herein. Certain of the duties set forth above may be performed by
ARES pursuant to ARES Service Agreements. Anything to the contrary
notwithstanding, the duties of the Servicer set forth
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(1) Need to confirm adequacy of procedures to monitor this number and whether
procedures need further description in this document.
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in this Agreement shall be qualified in their entirety by any ICC
Regulations as in effect at the time such duties are to be performed.
Without limiting the generality of this Section 3.01(a), in furtherance of
the foregoing, the Servicer shall also have, and shall comply with, the
duties and responsibilities relating to data acquisition, usage and xxxx
calculation, billing, customer service functions, collections, payment
processing and remittance set forth in Annex I hereto, including without
limitation payment of all Allocable IFC Revenue Amounts described therein.
(b) REPORTING FUNCTIONS.
(i) MONTHLY SERVICER'S CERTIFICATE. On or before each
Remittance Date, the Servicer shall prepare and deliver to the
Grantee, the Note Issuer, the Indenture Trustee and the Rating
Agencies a written report substantially in the form of EXHIBIT A
hereto (a "Monthly Servicer's Certificate") setting forth certain
information relating to IFC Payments received by the Servicer during
the Collection Period immediately preceding such Remittance Date.
(ii) NOTIFICATION OF LAWS AND REGULATIONS. The Servicer shall
immediately notify the Grantee, the Note Issuer, the Indenture Trustee
and the Rating Agencies in writing of any laws or ICC Regulations
hereafter promulgated that have a material adverse effect on the
Servicer's ability to perform its duties under this Agreement.
(iii) OTHER INFORMATION. Upon the reasonable request of the
Grantee, the Note Issuer, the Indenture Trustee or any Rating Agency,
the Servicer shall provide to the Grantee, the Note Issuer, Indenture
Trustee or the Rating Agencies, as the case may be, any public
financial information in respect of the Servicer, or any material
information regarding the Intangible Transition Property to the extent
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it is reasonably available to the Servicer, as may be reasonably
necessary and permitted by law, to enable the Grantee, the Note
Issuer, the Indenture Trustee or the Rating Agencies to monitor the
Servicer's performance hereunder. In addition, so long as any of the
Notes of any Series are outstanding, the Servicer shall provide the
Grantee, the Note Issuer and the Indenture Trustee, within a
reasonable time after written request therefor, any information
available to the Servicer or reasonably obtainable by it that is
necessary to calculate the IFCs applicable to each class of Customer.
(iv) PREPARATION OF REPORTS TO BE FILED WITH THE SEC. The Servicer
shall prepare any reports required to be filed by the Grantee or the
Note Issuer under the securities laws, including a copy of each
Quarterly Servicer's Certificate described in Section 4.01(c)(ii), the
annual Certificate of Compliance described in Section 3.03, and the
Annual Accountant's Report described in Section 3.04.
SECTION 3.02. SERVICING AND MAINTENANCE STANDARDS. On behalf of the
Grantee, the Servicer shall (a) manage, service, administer and make collections
in respect of the Intangible Transition Property with reasonable care and in
accordance with the Servicing Standard and applicable law, including all
applicable ICC Regulations and guidelines, using the same degree of care and
diligence that the Servicer exercises with respect to similar assets for its own
account and, if applicable, for others; (b) follow customary standards, policies
and procedures for the industry in performing its duties as Servicer; (c) use
all reasonable efforts, consistent with its customary servicing procedures, to
enforce, and maintain rights in respect of, the Intangible Transition Property;
(d) comply with all laws and regulations applicable to and binding on it
relating to the Intangible Transition Property, and (e) make all required
submissions and provide all required notifications to the ICC with respect to
any Adjustments. The Servicer shall be
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responsible for the imposition, collection and remittance of IFCs in accordance
with Annex I hereto, the inclusion of IFCs in all Bills, and the deduction of
IFCs from tariffed charges and all other charges from which the IFCs are to be
deducted and stated separately, including, without limitation, all charges under
any contracts with Customers who would, but for such contract, be paying
Applicable Rates. The Servicer shall follow such customary and usual practices
and procedures as it shall deem necessary or advisable in its servicing of all
or any portion of the Intangible Transition Property, which, in the Servicer's
judgment, may include the taking of legal action. Without limiting the
foregoing, if the Servicer determines at any time that the aggregate dollar
amount of IFC Charges to be imposed is reasonably likely to exceed the maximum
dollar amount of Intangible Transition Property authorized by the 1998
Transitional Funding Order and any Subsequent Funding Orders to be imposed and
collected and any Notes remain outstanding, the Servicer shall make a good faith
effort to take any and all subsequent regulatory action with the ICC to obtain
an order permitting the creation of additional Intangible Transition Property in
an amount sufficient to pay such Notes in full.
SECTION 3.03. CERTIFICATE OF COMPLIANCE. The Servicer shall deliver to
the Grantee, the Note Issuer, the Indenture Trustee and the Rating Agencies on
or before [INSERT APPROPRIATE MONTH AND DAY] of each year, commencing [INSERT
DATE FIRST REPORT IS DUE] to and including the [INSERT APPROPRIATE MONTH AND
DAY] succeeding the Retirement of the Notes, an Officer's Certificate
substantially in the form of EXHIBIT B hereto (a "Certificate of Compliance"),
stating that: (i) a review of the activities of the Servicer during the twelve
months ended the preceding [INSERT DATE AS OF WHICH REPORT WILL BE PREPARED]
(or, in the case of the first Certificate of Compliance to be delivered on or
before _____________, 199_, the period of time from the date of this Agreement
until [FIRST DATE AS OF WHICH REPORT WILL BE PREPARED]) and of its performance
under this Agreement has been made under such officer's supervision, and (ii) to
such officer's
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knowledge, based on such review, the Servicer has fulfilled all of its
obligations in all material respects under this Agreement throughout such twelve
months (or, in the case of the Certificate of Compliance to be delivered on or
before [DATE OF FIRST CERTIFICATE] the period of time from the date of this
Agreement until [FIRST DATE AS OF WHICH REPORT WILL BE PREPARED]), or, if there
has been a default in the fulfillment of any such material obligation,
specifying each such material default known to such officer and the nature and
status thereof.
SECTION 3.04. ANNUAL REPORT BY INDEPENDENT PUBLIC ACCOUNTANTS. (a) The
Servicer, at its own expense in consideration of the Servicing Fee paid to it,
shall cause a firm of independent certified public accountants (which may
provide other services to the Servicer or ComEd) to prepare, and the Servicer
shall deliver to the Grantee, the Note Issuer, the Indenture Trustee and the
Rating Agencies a report addressed to the Servicer (the "Annual Accountant's
Report"), which may be included as part of the Servicer's customary auditing
activities, for the information and use of the Grantee, the Note Issuer, the
Indenture Trustee and the Rating Agencies, on or before [_______________] of
each year, beginning [_____________, 199_] to and including the [_____________]
succeeding the Retirement of the Notes, to the effect that such firm has
performed certain procedures in connection with the Servicer's compliance with
its obligations under this Agreement during the preceding twelve months ended
[________] (or, in the case of the first Annual Accountant's Report to be
delivered on or before [_____________, 199_], the period of time from the date
of this Agreement until _________, 199_), identifying the results of such
procedures and including any exceptions noted. If such accounting firm requires
the Indenture Trustee to agree or consent to the procedures performed by such
firm, the Grantee shall direct the Note Issuer to direct the Indenture Trustee
in writing to so agree; it being understood and agreed that the Indenture
Trustee will deliver such letter of agreement or consent in conclusive reliance
upon the direction of the Note Issuer, and the Indenture Trustee will not make
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any independent inquiry or investigation as to, and shall have no obligation or
liability in respect of the sufficiency, validity or correctness of such
procedures.
(b) The Annual Accountant's Report shall also indicate that the accounting
firm providing such report is independent of the Servicer within the meaning of
the Code of Professional Ethics of the American Institute of Certified Public
Accountants.
ARTICLE IV
SERVICES RELATED TO RECONCILIATION ADJUSTMENTS AND TRUE-UP ADJUSTMENTS
SECTION 4.01. RECONCILIATION ADJUSTMENTS AND TRUE-UP ADJUSTMENTS. From
time to time, until the Retirement of the Notes, the Servicer shall identify the
need for Reconciliation Adjustments and True-Up Adjustments and shall take all
reasonable action to obtain and implement such Reconciliation Adjustments and
True-Up Adjustments, all in accordance with the following:
(a) EXPECTED AMORTIZATION SCHEDULE. The initial Expected Amortization
Schedule is attached hereto as SCHEDULE 4.01(a). In connection with the
Note Issuer's issuance of any additional Series of Notes after the Closing
Date, the Servicer, on or prior to the Series Issuance Date therefor, shall
revise the Expected Amortization Schedule to add the requisite information
for each new Series of Notes and set forth, as of each Payment Date through
the scheduled Retirement of the Notes, the aggregate principal amounts of
the Notes of all Series, including such additional Series, expected to be
outstanding on such Payment Date. The Servicer shall also revise the
Expected Amortization Schedule to reflect any required prepayments on
account of the receipt of Allocable IFC Revenue Amounts or any other
required or permitted prepayments affecting such schedule. If the Expected
Amortization Schedule is revised as set forth above, the Servicer shall
send a
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copy of such revised Expected Amortization Schedule to the Grantee, the
Note Issuer, the Indenture Trustee and the Rating Agencies promptly
thereafter.
(b) RECONCILIATION AND TRUE-UP ADJUSTMENTS(2)
(i) RECONCILIATION ADJUSTMENTS AND FILINGS. Each year within
the two-week period preceding each Reconciliation Adjustment Date,
the Servicer shall: (A) update the data and assumptions underlying the
calculation of the IFCs, including revenue from Applicable Rates for
each class of Customers, projected electricity usage during the next
Calculation Period for each such class and including interest and
estimated expenses and fees of the Grantee and the Note Issuer to be
paid during such period, the rate of delinquencies and write-offs, and
the Collections Curves; (B) determine the Required Debt Service and
Debt Service Billing Requirement for the next Calculation Period based
on such updated data and assumptions; (C) determine the IFCs to be
allocated to each class of Customers during the next Calculation
Period based on such Debt Service Billing Requirement and the terms of
the applicable Funding Orders and the Tariffs filed pursuant thereto;
(D) make all required notice and other filings with the ICC to reflect
the revised IFCs, including any Amendatory Tariffs required under
Section 18-104(k) of the Funding Law if the resulting IFCs for any
class of Customer will exceed an amount per kilowatt-hour greater than
the amount per kilowatt-hour authorized for such class of Customer in
the applicable Funding Order, and (E) take all reasonable actions and
make all reasonable efforts to effect such
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(2) These provisions will need to be revised after the amortization of the
Notes (quarterly vs. semi-annually) has been determined. We have assumed
that reconciliations will be performed semi-annually, in June and December
(commencing June 1999), and true-up determinations will be performed
semi-annually, in March and September (commencing September 1999).
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Reconciliation Adjustment and to enforce the provisions of the Funding
Law which limit the ICC's authority to review any such Amendatory
Tariff.
(ii) TRUE-UP ADJUSTMENTS AND FILINGS. Each year immediately
before each March 31 and September 30, commencing September 30, 1999,
the Servicer shall compare the Principal Balance, as of the most
recent Payment Date and after giving effect to payments made on such
Payment Date, to the Projected Principal Balance as of such Payment
Date. If the Servicer determines that such Principal Balance equals
or exceeds 105% of such Projected Principal Balance, then the Servicer
shall: (A) update the data and assumptions underlying the calculation
of the IFCs, including revenue from Applicable Rates for each class of
Customers, projected electricity usage during the next Calculation
Period for each such class and including interest and estimated
expenses and fees of the Grantee and the Note Issuer to be paid during
such period, the rate of delinquencies and write-offs, and the
Collections Curves; (B) determine the Debt Service Requirement and
Debt Service Billing Requirement for the next Calculation Period based
on such updated data and assumptions; (C) determine the IFCs to be
allocated to each class of Customers during such Calculation Period
based on such Debt Service Billing Requirement and the terms of the
applicable Funding Orders and the Tariffs filed pursuant thereto; (D)
make all required notice and other filings with the ICC to reflect the
revised IFCs, including any Amendatory Tariffs required under Section
18-104(k) of the Funding Law if the resulting IFCs for any class of
Customer will exceed an amount per kilowatt-hour greater than the
amount per kilowatt-hour authorized for such class of Customer in the
applicable Funding Order, and (E) take all reasonable actions and make
all reasonable efforts to effect such True-Up
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Adjustment and to enforce the provisions of the Funding Law which
limit the ICC's authority to review any such Amendatory Tariff.
(iii) In the case of any Reconciliation Adjustment or True-Up
Adjustment, the Servicer shall implement the revised IFCs, if any, as
of the first day of the following calendar month (e.g., January 1 for
a Reconciliation Adjustment determined in December, July 1 for a
Reconciliation Adjustment determined in June, April 1 for a True-Up
Adjustment determined in March and October 1 for a True-Up Adjustment
determined in September).
(c) REPORTS.
(i) NOTIFICATION OF TARIFF FILINGS AND RECONCILIATION AND TRUE-UP
ADJUSTMENTS. Whenever the Servicer files a Tariff with the ICC or
implements revised IFCs with notice to the ICC but without filing a
Tariff as contemplated by any applicable Funding Order, the Servicer
shall send a copy of such filing or notice (together with a copy of
all notices and documents which, in the Servicer's reasonable
judgment, are material to the adjustments effected by such Tariff or
notice) to the Grantee, the Note Issuer, the Indenture Trustee and the
Rating Agencies concurrently therewith.
(ii) QUARTERLY SERVICER'S CERTIFICATE. Not later than the
Remittance Date immediately prior to each Payment Date, the Servicer
shall deliver a written report substantially in the form of EXHIBIT D
hereto (the "Quarterly Servicer's Certificate") to the Grantee, the
Note Issuer, the Indenture Trustee and the Rating Agencies.
(iii) REPORTS TO CUSTOMERS. (A) After each revised IFC has gone
into effect pursuant to a Reconciliation Adjustment or a True-Up
Adjustment, the Servicer shall, to the extent and in the manner and
time frame required by
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applicable ICC Regulations, if any, cause to be prepared and delivered
to Customers any required notices announcing such revised IFCs.
(B) In addition, at least once each year, the Servicer shall
cause to be prepared and delivered to Customers a notice stating, in
effect, that the IFCs are owned by the Grantee or any assignee thereof
and not ComEd. Such notice shall be included either as an insert to
or in the text of the Bills delivered to such Customers or shall be
delivered to Customers by electronic means or such other means as the
Servicer or the Applicable ARES may from time to time use to
communicate with their respective customers.
(C) Except to the extent that applicable ICC Regulations make
the Applicable ARES responsible for such costs, the Servicer shall pay
from its own funds all costs of preparation and delivery incurred in
connection with clauses (A) and (B) above, including but not limited
to printing and postage costs as the same may increase or decrease
from time to time.
(iv) ARES REPORTS. The Servicer shall provide to the Rating
Agencies, upon request, any publicly available reports filed by the
Servicer with the ICC (or otherwise made publicly available by the
Servicer) relating to ARES and any other non-confidential and
non-proprietary information relating to ARES reasonably requested by
the Rating Agencies.
SECTION 4.02. LIMITATION OF LIABILITY. (a) The Grantee and the
Servicer expressly agree and acknowledge that:
(i) In connection with any Reconciliation Adjustment or True-Up
Adjustment, the Servicer is acting solely in its capacity as the servicing
agent hereunder.
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(ii) Neither the Servicer nor the Grantee shall be responsible in
any manner for, and shall have no liability whatsoever as a result of, any
action, decision, ruling or other determination made or not made, or any
delay (other than any delay resulting from the Servicer's failure to file
the Amendatory Tariffs required by Section 4.01 in a timely and correct
manner or other breach by the Servicer of its duties under this Agreement),
by the ICC in any way related to the Intangible Transition Property or in
connection with any Reconciliation Adjustment or True-Up Adjustment, the
subject of any filings under Section 4.01, any proposed Reconciliation
Adjustment or True-Up Adjustment, or the approval of any revised IFCs.
(iii) The Servicer shall have no liability whatsoever relating to the
calculation of any revised IFCs, including as a result of any inaccuracy of
any of the assumptions made in such calculation regarding expected energy
usage volume and the rate of delinquencies and write-offs, so long as the
Servicer has acted in good faith and has not acted in a grossly negligent
manner in connection therewith, nor shall the Servicer have any liability
whatsoever as a result of any Person, including the Holders, not receiving
any payment, amount or return anticipated or expected or in respect of any
Note generally, except only to the extent that the same is caused by the
Servicer's gross negligence, willful misconduct, bad faith, or reckless
disregard of its obligations and duties under this Agreement.
(b) Notwithstanding the foregoing, this Section 4.02 shall not relieve the
Servicer of liability for any misrepresentation by the Servicer under Section
6.01 or for any breach by the Servicer of its other obligations under this
Agreement.
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ARTICLE V
THE INTANGIBLE TRANSITION PROPERTY
SECTION 5.01. CUSTODY OF INTANGIBLE TRANSITION PROPERTY RECORDS. To
assure uniform quality in servicing the Intangible Transition Property and to
reduce administrative costs, the Grantee revocably appoints the Servicer, and
the Servicer accepts such appointment, to act as the agent of the Grantee, the
Note Issuer and the Indenture Trustee as custodian of any and all documents and
records that the Grantee shall keep on file, in accordance with its customary
procedures, relating to the Intangible Transition Property, including copies of
each Funding Order and all Tariffs relating thereto, and all documents filed
with the ICC in connection with any Reconciliation Adjustment or True-Up
Adjustment (collectively, the "Intangible Transition Property Records"), which
are hereby constructively delivered to the Note Issuer, as transferee of the
Grantee (or, in the case of the Subsequent Intangible Transition Property, will
as of the applicable Subsequent Sale Date be constructively delivered to the
Note Issuer, as transferee of the Grantee) with respect to all Intangible
Transition Property.
SECTION 5.02. DUTIES OF SERVICER AS CUSTODIAN. (a) SAFEKEEPING. The
Servicer shall hold the Intangible Transition Property Records on behalf of the
Grantee, the Note Issuer and the Indenture Trustee, and maintain such accurate
and complete accounts, records and computer systems pertaining to the Intangible
Transition Property Records as shall enable the Grantee to comply with this
Agreement and the Sale Agreement, and as shall enable the Note Issuer to comply
with the Sale Agreement and the Indenture. In performing its duties as
custodian the Servicer shall act with reasonable care, using that degree of care
and diligence that the Servicer exercises with respect to comparable assets that
the Servicer services for itself or, if applicable, for others. The Servicer
shall promptly report to the Grantee, the Note Issuer and the Indenture
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Trustee any failure on its part to hold the Intangible Transition Property
Records and maintain its accounts, records and computer systems as herein
provided and promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or any periodic
review by the Grantee, the Note Issuer or the Indenture Trustee of the
Intangible Transition Property Records. The Servicer's duties to hold the
Intangible Transition Property Records on behalf of the Grantee, the Note Issuer
and the Indenture Trustee set forth in this Section 5.02, to the extent such
Intangible Transition Property Records have not been previously transferred to a
successor Servicer pursuant to Article VII, shall terminate three years after
the earlier of the date on which (i) the Servicer is succeeded by a successor
Servicer in accordance with Article VII hereof and (ii) no Notes of any Series
are Outstanding.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Servicer shall maintain the
Intangible Transition Property Records at 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx, 37th Floor or at such other office as shall be specified to the
Grantee, the Note Issuer and the Indenture Trustee by written notice at least 30
days prior to any change in location. The Servicer shall permit the Grantee,
the Note Issuer and the Indenture Trustee or their respective duly authorized
representatives, attorneys or auditors to inspect, audit and make copies of and
abstracts from the Servicer's records regarding the Intangible Transition
Property and the IFCs (including all the Intangible Transition Property
Records), at such times during normal business hours as the Grantee, the Note
Issuer or the Indenture Trustee shall reasonably request and which do not
unreasonably interfere with the Servicer's normal operations. Nothing in this
Section 5.02(b) shall affect the obligation of the Servicer to observe any
applicable law (including any ICC Regulations) prohibiting disclosure of
information regarding the Customers, and the failure of the Servicer to provide
access to such information as a result of such obligation shall not constitute a
breach of this Section 5.02(b).
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(c) DEFENDING INTANGIBLE TRANSITION PROPERTY AGAINST CLAIMS. The Servicer
shall institute any action or proceeding necessary to compel performance by the
ICC or the State of Illinois of any of their obligations or duties under the
Funding Law, any Funding Order or any Tariff, and the Servicer 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 to block or overturn any attempts to
cause a repeal of, modification of or supplement to the Funding Law or any
Funding Order or the rights of holders of Intangible Transition Property that
would be adverse to the Grantee, the Note Issuer or any Holders. Unless
expressly prohibited by law or by any court or regulatory order in effect at
such time, the Servicer shall continue to impose, collect and remit IFCs in
accordance with this Agreement during the pendency of any such action and
continuing for so long as the Notes remain Outstanding. The Servicer shall
advance its own funds in order to institute any actions or proceedings described
above, PROVIDED, however, that the costs of any such action or proceeding shall
be payable from IFC Collections as an Operating Expense in accordance with the
priorities set forth in Section 8.02(d) of the Indenture. The Servicer's
obligations pursuant to this Section 5.02 shall survive and continue
notwithstanding the fact that the payment of Operating Expenses pursuant to
Section 8.02(d) of the Indenture may be delayed (it being understood that the
Servicer may be required to advance its own funds to satisfy its obligations
hereunder).
SECTION 5.03. INSTRUCTIONS; AUTHORITY TO ACT. For so long as any Notes
remain Outstanding, the Servicer shall be deemed to have received proper
instructions with respect to the Intangible Transition Property Records upon its
receipt of written instructions signed by a Trust Officer of the Indenture
Trustee.
SECTION 5.04. CUSTODIAN'S INDEMNIFICATION. The Servicer as custodian
shall indemnify the Grantee, the Note Issuer, the Delaware Trustee, the
Indenture Trustee and the Holders and
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each of their respective officers, directors, employees and agents for, and
defend and hold harmless each such Person from and against, any and all
liabilities, obligations, losses, damages, payments and claims, and reasonable
costs or expenses, of any kind whatsoever (collectively, "Losses") that may be
imposed on, incurred by or asserted against any such Person as the result of any
improper act or omission in any way relating to the maintenance and custody by
the Servicer, as custodian, of the Intangible Transition Property Records;
PROVIDED, HOWEVER, that the Servicer shall not be liable for any portion of any
such amount resulting from the willful misconduct, bad faith or gross negligence
of the Grantee, the Note Issuer, the Delaware Trustee, the Indenture Trustee or
any Holders.
Indemnification under this Section shall survive resignation or removal of
the Indenture Trustee or the Delaware Trustee and shall include reasonable
out-of-pocket fees and expenses of investigation and litigation.
SECTION 5.05. EFFECTIVE PERIOD AND TERMINATION. The Servicer's
appointment as custodian shall become effective as of the Closing Date and shall
continue in full force and effect until terminated pursuant to this Section. If
any Servicer shall resign as Servicer in accordance with the provisions of this
Agreement or if all of the rights and obligations of any Servicer shall have
been terminated under Section 7.01, the appointment of such Servicer as
custodian shall be terminated by the Indenture Trustee or by the Holders of
Notes evidencing not less than twenty-five percent (25%) of the Outstanding
Amount of the Notes of all Series in the same manner as the Indenture Trustee or
such Holders may terminate the rights and obligations of the Servicer under
Section 7.01.
SECTION 5.06. GENERAL INDEMNIFICATION OF INDENTURE TRUSTEE AND DELAWARE
TRUSTEE. The Servicer agrees to indemnify and hold harmless the Indenture
Trustee and the Delaware Trustee and their respective directors, officers,
employees and agents from and against any and all
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Losses incurred by or asserted against any such Person as a result of or in
connection with the transactions contemplated by this Agreement or any other
Basic Document, other than any Loss incurred by reason or result of the gross
negligence or willful misconduct of the Indenture Trustee or the Delaware
Trustee; PROVIDED, HOWEVER, that the foregoing indemnity is extended to the
Indenture Trustee and the Delaware Trustee solely in their respective capacities
as trustees and not for the benefit of the Holders or any other Person. The
obligations of the Servicer set forth herein shall survive the termination of
this Agreement or the earlier resignation or removal of the Indenture Trustee
under the Indenture or the Delaware Trustee under the Trust Agreement.
ARTICLE VI
THE SERVICER
SECTION 6.01. REPRESENTATIONS AND WARRANTIES OF SERVICER. The Servicer
makes the following representations and warranties, as of the Closing Date, as
of each Subsequent Sale Date relating to the sale of Subsequent Intangible
Transition Property pursuant to a Subsequent Sale Agreement, and as of such
other dates as expressly provided in this Section 6.01, on which the Grantee is
deemed to have relied in entering into this Agreement. The representations and
warranties shall survive the execution and delivery of this Agreement, the
transfer of this Agreement to the Note Issuer pursuant to the Sale Agreement and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Servicer is duly organized
and validly existing as a corporation in good standing under the laws of
the state of its incorporation, with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and has, the requisite power, authority and legal right to
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service the Intangible Transition Property and to hold the Intangible
Transition Property Records as custodian.
(b) DUE QUALIFICATION. The Servicer 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 (including the servicing
of the Intangible Transition Property as required by this Agreement) 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 Servicer's business, operations, assets, revenues or
properties or adversely affect the servicing of the Intangible Transition
Property).
(c) POWER AND AUTHORITY. The Servicer has the requisite power and
authority to execute and deliver this Agreement and to carry out its terms;
and the execution, delivery and performance of this Agreement have been
duly authorized by the Servicer by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement constitutes a legal, valid
and binding obligation of the Servicer enforceable in accordance with its
terms, subject to applicable insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws relating to or affecting
creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing), regardless of
whether considered in a proceeding in equity or at law.
(e) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not (i)
conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse
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of time) a default under, the articles of incorporation or bylaws of the
Servicer, or any indenture, agreement or other instrument to which the
Servicer is a party or by which it shall be bound; (ii) 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; or (iii)
violate any law or any order, rule or regulation applicable to the Servicer
of any court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Servicer or its properties.
(f) NO PROCEEDINGS. [Except as set forth on Schedule 6.01(f),] there
are no proceedings or investigations pending or, to the Servicer's
knowledge, threatened before any court, Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties involving or relating to
the Servicer or the Grantee or, to the Servicer's knowledge, any other
Person: (i) asserting the invalidity of this Agreement, or any of the other
Basic Documents or the Notes, (ii) seeking to prevent the issuance of the
Notes or the consummation of any of the transactions contemplated by this
Agreement or any of the other Basic Documents, (iii) seeking any
determination or ruling that could reasonably be expected to materially and
adversely affect the performance by the Servicer of its obligations under,
or the validity or enforceability of, this Agreement, any of the other
Basic Documents or the Notes, or (iv) relating to the Servicer and which
could reasonably be expected to adversely affect the Federal or state
income tax attributes of the Notes.
(g) APPROVALS. 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 Servicer's execution and delivery of this Agreement,
the Servicer's performance of the transactions contemplated
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hereby or the Servicer's fulfillment of the terms hereof, except those that
have been obtained or made and those that the Servicer is required to make
in the future pursuant to Article IV hereof.
(h) COLLECTIONS CURVES. Each Collections Curve used in connection
with SCHEDULE 6 to Annex I hereto is accurate in all material respects, and
the future delivery of each revised Collections Curve shall constitute a
representation and warranty that each such revised Collections Curve is
accurate in all material respects.
(i) ASSUMPTIONS. The assumptions set forth in SCHEDULE 6 to Annex I
hereto are reasonable and made in good faith, and will be reasonable and
made in good faith as they change from time to time.
(j) REPORTS AND CERTIFICATES. Each report and certificate delivered
in connection with a Tariff will constitute a representation and warranty
by the Servicer that each such report or certificate, as the case may be,
is true and correct; PROVIDED, HOWEVER, that to the extent any such report
or certificate is based in part upon or contains assumptions, forecasts or
other predictions of future events, the representation and warranty of the
Servicer with respect thereto will be limited to the representation and
warranty that such assumptions, forecasts or other predictions of future
events are reasonable based upon historical performance.
SECTION 6.02. INDEMNITIES OF SERVICER; RELEASE OF CLAIMS. (a) The Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement.
(b) The Servicer shall indemnify the Grantee, the Note Issuer, the
Indenture Trustee, the Delaware Trustee and the Holders and each of their
respective officers, directors, employees and agents for, and defend and hold
harmless each such Person from and against, any and all
23
Losses that may be imposed on, incurred by or asserted against any such Person
as a result of (i) the Servicer's willful misconduct, bad faith or gross
negligence in the performance of its duties or observance of its covenants under
this Agreement or its reckless disregard of its obligations and duties under
this Agreement, or (ii) the Servicer's breach of any of its representations or
warranties in this Agreement.
(c) For purposes of Section 6.02(b), in the event of the termination of
the rights and obligations of ComEd (or any successor thereto pursuant to
Section 6.03) as Servicer pursuant to Section 7.01, or a resignation by such
Servicer pursuant to this Agreement, such Servicer shall be deemed to be the
Servicer pending appointment of a successor Servicer pursuant to Section 7.02.
(d) Indemnification under Sections 6.02(b) and 6.02(c) shall survive the
resignation or removal of the Indenture Trustee or the Delaware Trustee or the
termination of this Agreement and shall include reasonable out-of-pocket fees
and expenses of investigation and litigation (including reasonable attorneys'
fees and expenses).
(e) Except to the extent expressly provided in this Agreement or the other
Basic Documents (including, without limitation, the Servicer's claims with
respect to the Servicing Fee, reimbursement for any Excess Remittance,
reimbursement for costs incurred pursuant to Section 5.12(d) and the payment of
the consideration for any grant of Intangible Transition Property to the
Grantee), the Servicer releases and discharges the Grantee, the Note Issuer and
the Indenture Trustee and each of their respective officers, directors and
agents (collectively, the "Released Parties") from any and all actions, claims
and demands whatsoever, whenever arising, which the Servicer, in its capacity as
Servicer or otherwise, shall or may have against any such Person relating to the
Intangible Transition Property or the Servicer's activities with respect thereto
other than any actions, claims and demands arising out of the willful
misconduct, bad faith or gross negligence of the Released Parties.
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SECTION 6.03. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, SERVICER. Any Person (a) into which the Servicer may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Servicer shall be a party or (c) which may succeed to the properties and assets
of the Servicer substantially as a whole, or, with respect to its obligations as
Servicer, which Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Servicer hereunder, shall be the
successor to the Servicer under this Agreement without further act on the part
of any of the parties to this Agreement; PROVIDED, HOWEVER, that (i) immediately
after giving effect to such transaction, no Servicer Default and no event which,
after notice or lapse of time, or both, would become a Servicer Default shall
have occurred and be continuing, (ii) the Servicer shall have delivered to the
Grantee, the Note Issuer, the Indenture Trustee and the Rating Agencies an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption complies
with this Section and that all conditions precedent provided for in this
Agreement relating to such transaction have been complied with and (iii) the
Servicer shall have delivered to the Grantee, the Note Issuer, the Indenture
Trustee and the Rating Agencies an Opinion of Counsel either (A) stating that,
in the opinion of such counsel, all filings to be made by the Servicer,
including filings with the ICC pursuant to the Funding Law, have been executed
and filed that are necessary to preserve and protect fully the interests of the
Grantee in the 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 foregoing agreement of
assumption and compliance with clauses (i), (ii) and (iii) above shall be
conditions to the consummation of the transactions referred to in clauses (a),
(b) or (c) above.
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SECTION 6.04. LIMITATION ON LIABILITY OF SERVICER AND OTHERS. Neither the
Servicer nor any of the directors or officers or employees or agents of the
Servicer shall be liable to the Grantee, the Note Issuer, the Indenture Trustee,
the Delaware Trustee, the Holders or any other Person, except as provided under
this Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment; PROVIDED, HOWEVER,
that this provision shall not protect the Servicer or any such person against
any liability that would otherwise be imposed by reason of willful misconduct,
bad faith or gross negligence in the performance of the Servicer's duties or by
reason of reckless disregard of the Servicer's obligations and duties. The
Servicer and any director or officer or employee or agent of the Servicer may
rely in good faith on the advice of counsel reasonably acceptable to the
Indenture Trustee or on any document of any kind, PRIMA FACIE properly executed
and submitted by any Person, respecting any matters arising under this
Agreement.
Except as provided in this Agreement, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
related to or incidental to its duties to service the Intangible Transition
Property in accordance with this Agreement, and that in its opinion may involve
it in any expense or liability.
SECTION 6.05. COMED NOT TO RESIGN AS SERVICER. Subject to the provisions
of Sections 6.03, ComEd shall not resign from the obligations and duties hereby
imposed on it as Servicer under this Agreement unless either (a) the Servicer
determines that the performance of its duties under this Agreement shall no
longer be permissible under applicable law (disregarding any breach of the State
Pledge that is being contested or subsequent invalidation of the Funding Law,
any Funding Order and/or any tariff or tariffs filed in connection therewith),
or (b) the Rating Agency Condition shall have been satisfied and, to the extent
required under any Funding Order, and, in either case, the ICC shall have
approved such resignation. Notice of any such determination
26
permitting ComEd's resignation shall be given to the Grantee, the Note Issuer,
the Indenture Trustee and the Rating Agencies at the earliest practicable time
(and, if such communication is not in writing, shall be confirmed in writing at
the earliest practicable time) and any such determination shall be evidenced by
an Opinion of Counsel to such effect delivered to the Grantee, the Note Issuer
and the Indenture Trustee concurrently with or promptly after such notice. No
such resignation shall become effective until a successor Servicer shall have
assumed ComEd's responsibilities and obligations in accordance with
Section 7.02.
SECTION 6.06. SERVICING COMPENSATION. (a) In consideration for its
services hereunder, until the Retirement of the Notes, the Servicer shall
receive a fee (the "Servicing Fee") quarterly on each Payment Date in an amount
equal to one-fourth of (i) $__________ for so long as IFCs are billed
concurrently with charges or otherwise billed to Customers or (ii) $__________
if IFCs are not billed concurrently with charges or otherwise billed to
Customers but, instead, are billed separately to Customers. The Servicer shall
also be entitled to retain as additional compensation (i) any interest earnings
on IFC Payments received by the Servicer and invested by the Servicer pursuant
to Section 6(d) of Annex I hereto during each Collection Period prior to
remittance to the Collection Account and (ii) all late payment charges, if any,
collected from Customers or ARES. So long as the Servicer is billing Customers
for charges for electric service or any Applicable Rates, the Servicer will xxxx
IFCs to such Customers concurrently with such other charges and such Applicable
Rates.
(b) The Indenture Trustee shall pay the Servicer the Servicing Fee set
forth in Section 6.06(a) above on each Payment Date in accordance with the
priorities set forth in Section 8.02(d) of the Indenture, by wire transfer of
immediately-available funds from the Collection Account to an account designated
by the Servicer. Any portion of the Servicing Fee not paid on such date shall
be added to the Servicing Fee payable on the subsequent Payment Date.
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(c) Except as provided in Section 5.02(c), the Servicer shall be required
to pay from its own account all expenses incurred by it in connection with its
activities hereunder (including any fees to and disbursements by accountants,
counsel, or any other Person, any taxes imposed on the Servicer and any expenses
incurred in connection with reports to Holders) out of the compensation retained
by or paid to it pursuant to this Section 6.06, and shall not be entitled to any
extra payment or reimbursement therefor.
SECTION 6.07. COMPLIANCE WITH APPLICABLE LAW. The Servicer covenants and
agrees, in servicing the Intangible Transition Property, to comply with all laws
applicable to, and binding upon, the Servicer and relating to such Intangible
Transition Property the noncompliance with which would have a material adverse
effect on the value of the Intangible Transition Property; PROVIDED, HOWEVER,
that the foregoing is not intended to, and shall not, impose any liability on
the Servicer for noncompliance with any law that the Servicer is contesting in
good faith in accordance with its customary standards and procedures.
SECTION 6.08. ACCESS TO CERTAIN RECORDS AND INFORMATION REGARDING
INTANGIBLE TRANSITION PROPERTY. The Servicer shall provide to the Grantee, the
Note Issuer, the Indenture Trustee and the Holders access to the Intangible
Transition Property Records in such cases where the Grantee, the Note Issuer,
the Indenture Trustee and the Holders shall be required by applicable law to be
provided access to such records. Access shall be afforded without charge, but
only upon reasonable request and during normal business hours at the offices of
the Servicer. Nothing in this Section shall affect the Servicer's obligation to
observe any applicable law (including any ICC Regulation) prohibiting disclosure
of information regarding the Customers, and the failure of the Servicer to
provide access to such information as a result of such obligation shall not
constitute a breach of this Section.
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SECTION 6.09. APPOINTMENTS. The Servicer may at any time appoint any
Person to perform all or any portion of its obligations as Servicer hereunder;
PROVIDED, HOWEVER, that, unless such person is Unicom Corporation or a
wholly-owned subsidiary thereof, the Rating Agency Condition shall have been
satisfied in connection therewith; PROVIDED FURTHER that the Servicer shall
remain obligated and be liable to the Grantee, the Note Issuer, the Indenture
Trustee and the Holders for the servicing and administering of the Intangible
Transition Property in accordance with the provisions hereof without diminution
of such obligation and liability by virtue of the appointment of such Person and
to the same extent and under the same terms and conditions as if the Servicer
alone were servicing and administering the Intangible Transition Property; and
PROVIDED FURTHER, HOWEVER, that nothing herein (including, without limitation,
the Rating Agency Condition) shall preclude the execution by the Servicer of an
ARES Service Agreement with any ARES pursuant to applicable ICC Regulations.
The fees and expenses of such Person shall be as agreed between the Servicer and
such Person from time to time and none of the Grantee, the Note Issuer, the
Indenture Trustee, the Holders or any other Person shall have any responsibility
therefor or right or claim thereto. No such appointment shall constitute a
Servicer resignation under Section 6.05.
SECTION 6.10. NO SERVICER ADVANCES. The Servicer shall not make any
advances of interest or principal on the Notes.
SECTION 6.11. REMITTANCES. (a) Subject to clause (b) below, on each
Remittance Date, the Servicer shall cause to be made a wire transfer of
immediately-available funds equal to the Aggregate Remittance Amount for the
applicable Collection Period to the General Subaccount of the Collection
Account. Prior to each remittance to the General Subaccount of the Collection
Account pursuant to this Section, the Servicer shall provide written notice to
the Indenture Trustee of each such remittance (including the exact dollar amount
to be remitted).
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(b) Notwithstanding the foregoing clause (a), during any period in which a
Servicer Default has occurred and is continuing, the failure to satisfy the
Rating Agency Condition or the failure of the Servicer to maintain a short-term
rating of [___] or better by Standard & Poor's and [___] or better by Moody's,
the Servicer shall remit to the General Subaccount of the Collection Account the
total IFC Payments estimated to have been received by the Servicer from or on
behalf of Customers on a given Servicer Business Day in respect of all
previously Billed IFCs within [two] Servicer Business Days of receipt thereof by
the Servicer (the "Daily Remittance"). On or before each Remittance Date during
any period described in this clause (b), the Servicer shall calculate the amount
of any Remittance Shortfall or Excess Remittance attributable to the prior
Collection Period and (A) if a Remittance Shortfall exists, the Servicer shall
make a supplemental remittance to the General Subaccount of the Collection
Account on such Remittance Date in the amount of such Remittance Shortfall, or
(B) if an Excess Remittance exists, the Servicer shall reduce the amount of each
Daily Remittance (beginning with the Daily Remittance occurring on the
Remittance Date) by the outstanding amount of such Excess Remittance until the
balance of the Excess Remittance has been reduced to zero.
(c) The Servicer agrees and acknowledges that it holds all IFC Payments
collected by it for the benefit of the Grantee and that all such amounts shall
be remitted by the Servicer in accordance with this Section without any
surcharge, fee, offset, charge or other deduction except (i) as set forth in
clause (b) above or clause (d) below and (ii) for late fees permitted by Section
6.06. The Servicer shall not make any claim to reduce its obligation to remit
all IFC Payments collected by it in accordance with this Agreement except (i) as
set forth in clause (b) above or clause (d) below and (ii) for late fees
permitted by Section 6.06.
(d) If there is an Excess Remittance, the Servicer shall be entitled
either (i) to reduce the amount which the Servicer remits to the General
Subaccount of the Collection Account on
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such Remittance Date by the amount of such Excess Remittance, the amount of such
reduction becoming the property of the Servicer or (ii) to be paid immediately
from the General Subaccount or the Reserve Subaccount the amount of such Excess
Remittance, such payment becoming the property of the Servicer. If there is a
Remittance Shortfall, the amount which the Servicer remits to the General
Subaccount of the Collection Account on such Remittance Date shall be increased
by the amount of such Remittance Shortfall, such increase coming from the
Servicer's own funds.
SECTION 6.12 COMPLIANCE WITH SERVICING STANDARD; CHANGES IN ICC TARIFFS.
The Servicer shall, with respect to its duties hereunder, comply at all times
with the Servicing Standard, and, so long as any of the Notes are outstanding,
shall not initiate any material changes with respect to its policies and
procedures pertaining to credit (including requirements for deposits from
Customers), billing, collections (including procedures for disconnection of
service for non-payment) and restoration of service after disconnection, and
shall not, except as required by applicable law, initiate any changes in any
ICC tariffs relating to the foregoing matters which are reasonably likely to
adversely affect the Servicer's, ability to make timely recovery of amounts
billed to Customers. Notwithstanding the foregoing, the Servicer may, in its
own discretion, waive any late payment charge or any other fee or charge
relating to delinquent payments, if any, and may waive, vary or modify any terms
of payment of any amounts payable by a Customer, in each case, if such waiver or
action (a) would be in accordance with the Servicer's customary practices or
those of any successor Servicer with respect to comparable assets that it
services for itself, (b) would not materially adversely affect the Noteholders
and (c) would comply with applicable law. In addition, the Servicer may write
off any amounts that it deems uncollectible in accordance with its customary
practices.
ARTICLE VII
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DEFAULT
SECTION 7.01. SERVICER DEFAULT. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deposit in the Collection Account
on behalf of the Grantee any required remittance that shall continue
unremedied for a period of three Business Days after written notice of such
failure is received by the Servicer from the Grantee, the Note Issuer or
the Indenture Trustee or after discovery of such failure by a Responsible
Officer of the Servicer; or
(b) any failure on the part of the Servicer or ComEd, as the case may
be, duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer or ComEd (as the case may be) set
forth in this Agreement (including Section 4.01) or any other Basic
Document to which it is a party, which failure shall (i) materially and
adversely affect the rights of the Holders and (ii) continue unremedied for
a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (A) to the
Servicer or ComEd (as the case may be) by the Grantee or the Note Issuer or
(B) to the Servicer or ComEd (as the case may be) by the Indenture Trustee
or by the Holders of Notes evidencing not less than twenty-five percent
(25%) of the Outstanding Amount of the Notes of all Series; or
(c) any representation or warranty made by the Servicer in this
Agreement shall prove to have been incorrect when made, which has a
material adverse effect on the Grantee, the Note Issuer or the Holders and
which material adverse effect continues unremedied for a period of 60 days
after the date on which written notice thereof, requiring the same to be
remedied, shall have been delivered to the Servicer by the Grantee, the
Note Issuer or the Indenture Trustee; or
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(d) an Insolvency Event occurs with respect to the Servicer or ComEd;
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, either the Indenture Trustee, or the Holders of Notes
evidencing not less than twenty-five percent (25%) of the Outstanding
Amount of the Notes of all Series, by notice (a "Termination Notice") then
given in writing to the Servicer (and to the Indenture Trustee if given by
the Holders) may terminate all the rights and obligations (other than the
obligations set forth in Section 6.02 hereof) of the Servicer under this
Agreement. In addition, upon a Servicer Default described in Section
7.01(a), each of the following shall be entitled to apply to the ICC for
sequestration and payment of revenues arising with respect to the
Intangible Transition Property: (1) the Holders and the Indenture Trustee
as beneficiaries of the lien provided under Section 18-107(c) of the
Funding Law; (2) the Grantee or its assignees; (3) the Note Issuer; or (4)
pledgees or transferees of the Intangible Transition Property. On or after
the receipt by the Servicer of a Termination Notice, all authority and
power of the Servicer under this Agreement, whether with respect to the
Notes, the Intangible Transition Property, the IFCs or otherwise, shall,
without further action, pass to and be vested in such successor Servicer as
may be appointed under Section 7.02; and, without limitation, the Indenture
Trustee is authorized and empowered to execute and deliver, on behalf of
the predecessor Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such Termination
Notice, whether to complete the transfer of the Intangible Transition
Property Records and related documents, or otherwise. The predecessor
Servicer shall cooperate with the successor Servicer, the Grantee, the Note
Issuer and the Indenture Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer
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under this Agreement, including the transfer to the successor Servicer for
administration by it of (i) all cash amounts that shall at the time be held
by the predecessor Servicer for remittance, or shall thereafter be received
by it with respect to the Intangible Transition Property or the IFCs, and
(ii) any and all Intangible Transition Property Records. All reasonable
out-of-pocket costs and expenses (including attorneys' fees and expenses)
incurred in connection with transferring the Intangible Transition Property
Records to the successor Servicer and amending this Agreement to reflect
such succession as Servicer pursuant to this Section shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses.
SECTION 7.02. APPOINTMENT OF SUCCESSOR. (a) Upon the Servicer's receipt
of a Termination Notice pursuant to Section 7.01 or the Servicer's resignation
or removal in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, and shall be entitled to receive the requisite Servicing Fee, until a
successor Servicer shall have assumed in writing the obligations of the Servicer
hereunder as described below. In the event of the Servicer's termination
hereunder, the Grantee shall appoint a successor Servicer with the Note Issuer's
prior written consent thereto (which consent shall not be unreasonably
withheld), and the successor Servicer shall accept its appointment by a written
assumption in form acceptable to the Grantee and the Note Issuer. If within 30
days after the delivery of the Termination Notice, the Grantee shall not have
obtained such a new Servicer, the Indenture Trustee may petition the ICC or a
court of competent jurisdiction to appoint a successor Servicer under this
Agreement. A Person shall qualify as a successor Servicer only if (i) such
Person is permitted under ICC Regulations to perform the duties of the Servicer,
(ii) the Rating Agency Condition shall have been satisfied and (iii) such
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Person enters into a servicing agreement with the Grantee having substantially
the same provisions as this Agreement.
(b) Upon appointment, the successor Servicer shall be the successor in all
respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Servicer and shall be entitled to the Servicing Fee
and all the rights granted to the predecessor Servicer by the terms and
provisions of this Agreement.
SECTION 7.03. WAIVER OF PAST DEFAULTS. The Holders of Notes evidencing
not less than a majority of the Outstanding Amount of the Notes of all Series
may, on behalf of all Holders, waive in writing any default by the Servicer in
the performance of its obligations hereunder and its consequences, except a
default in making any required deposits to the Collection Account in accordance
with this Agreement, which waiver shall require the consent of all Holders.
Upon any such waiver of a past default, such default shall cease to exist, and
any Servicer Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereto.
SECTION 7.04. NOTICE OF SERVICER DEFAULT. The Servicer shall deliver to
the Grantee, the Note Issuer, the Indenture Trustee and the Rating Agencies,
promptly after having obtained knowledge thereof, but in no event later than
five Business Days thereafter, written notice in an Officer's Certificate of any
event which with the giving of notice or lapse of time, or both, would become a
Servicer Default under Section 7.01(a) or (b).
ARTICLE VIII
MISCELLANEOUS PROVISIONS
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SECTION 8.01. AMENDMENT. (a) This Agreement may be amended in writing by
the Servicer and the Grantee with five Business Days' prior written notice given
to the Rating Agencies and the prior written consent of the Indenture Trustee,
but without the consent of any of the Holders or Holders, to cure any ambiguity,
to correct or supplement any provisions in this Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights of the
Holders; PROVIDED, HOWEVER, that such action shall not, as evidenced by an
Officer's Certificate delivered to the Grantee, the Note Issuer, the Delaware
Trustee and the Indenture Trustee, adversely affect in any material respect the
interests of any Holder.
This Agreement may also be amended in writing from time to time by the
Servicer and the Grantee with prior written notice given to the Rating Agencies
and the prior written consent of the Indenture Trustee and the prior written
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes of all Series, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders;
PROVIDED, HOWEVER, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, IFC Collections or
(b) reduce the aforesaid percentage of the Outstanding Amount of the Notes, the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all the outstanding Notes.
Promptly after the execution of any such amendment and the requisite
consents, the Grantee shall furnish written notification of the substance of
such amendment to the Note Issuer, the Indenture Trustee and each of the Rating
Agencies.
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It shall not be necessary for the consent of Holders pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof.
Prior to its consent to any amendment to this Agreement, the Indenture
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Agreement. The Indenture Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Indenture Trustee's own rights, duties or
immunities under this Agreement or otherwise.
(b) Notwithstanding Section 8.01(a) or anything to the contrary in this
Agreement, the Servicer and the Grantee may amend Annex I to this Agreement in
writing with prior written notice given to the Indenture Trustee and the Rating
Agencies, but without the consent of the Indenture Trustee, any Rating Agency or
any Holder, solely to address changes to the Servicer's method of calculating
IFC Payments received as a result of changes to the Servicer's current
computerized customer information system, as contemplated by Section [___] of
Annex I hereto; PROVIDED that any such amendment shall not have a material
adverse effect on the Holders.
SECTION 8.02. MAINTENANCE OF RECORDS. The Servicer shall maintain
accounts and records as to the Intangible Transition Property accurately and in
accordance with its standard accounting procedures and in sufficient detail to
permit reconciliation between IFC Payments received by the Servicer and IFC
Collections from time to time deposited in the Collection Account.
SECTION 8.03. NOTICES. All demands, notices and communications upon or to
the Servicer, the Grantee, the Note Issuer, the Indenture Trustee or the Rating
Agencies under this Agreement shall be in writing and personally delivered, sent
by overnight mail or sent by telecopy or other similar form of rapid
transmission, and shall be deemed to have been duly given upon
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receipt (a) in the case of the Servicer, to Commonwealth Edison Company, 00
Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000; (b) in the case of
the Grantee, to ComEd Funding, LLC, c/o Commonwealth Edison Company, 00 Xxxxx
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, (c) in the case of the
Note Issuer, to ComEd Transitional Funding Trust, c/o First Union Trust Company,
National Association, as Delaware Trustee, 00 Xxxxxx Xxxxxx, 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust Administration,
(d) in the case of the Indenture 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, (g)
in the case of Fitch, to Fitch Investors Service, L.P., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, XX 00000, Attention of Commercial Asset-Backed Securities, or (h) in
the case of Duff & Xxxxxx, to Xxxx & Xxxxxx Credit Rating Co., 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Asset-Backed Monitoring Group, or as
to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 8.04. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Section 6.03 and as provided in the
provisions of this Agreement concerning the resignation of the Servicer, this
Agreement may not be assigned by the Servicer.
SECTION 8.05. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Servicer and the Grantee and, to the
extent provided herein or in the Basic Documents, the Note Issuer, the Indenture
Trustee and the Holders, 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 Intangible Transition Property or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
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SECTION 8.06. 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 8.07. 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 8.08. 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 8.09. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Illinois, 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 8.10. ASSIGNMENTS TO NOTE ISSUER AND INDENTURE TRUSTEE. The
Servicer acknowledges and consents to the assignment of any or all of the
Grantee's rights and obligations hereunder to the Note Issuer pursuant to the
Sale Agreement, and the collateral assignment of any or all of the Note Issuer's
rights and obligations hereunder to the Indenture Trustee pursuant to the
Indenture. After the Grantee transfers its rights and obligations hereunder to
the Note Issuer pursuant to the Sale Agreement, any duty the Servicer owes to
the Grantee and the Note Issuer hereunder shall be fully performed if such duty
is performed for the benefit of the Note Issuer alone.
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SECTION 8.11. NONPETITION COVENANTS. Notwithstanding any prior termination
of this Agreement or the Indenture, but subject to the ICC's right 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 any applicable Funding Order or other
applicable law, the Servicer shall not, prior to the date which is one year and
one day after the termination of the Indenture, acquiesce, petition or otherwise
invoke or cause the Grantee or the Note Issuer to invoke or join with them in
provoking the process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Grantee or the Note 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 Grantee or the Note Issuer or any substantial part of the property of the
Grantee or the Note Issuer, or ordering the winding up or liquidation of the
affairs of the Grantee or the Note Issuer.
SECTION 8.12. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is acknowledged and
accepted by First Union Trust Company, National Association ("First Union"), not
individually or personally but solely as Delaware Trustee on behalf of the Note
Issuer, and by Xxxxxx Trust and Savings Bank ("Xxxxxx"), not individually or
personally but solely as Indenture Trustee on behalf of the Holders, in each
case in the exercise of the powers and authority conferred and vested in it, (b)
the representations, undertakings and agreements herein made by the Delaware
Trustee on behalf of the Note Issuer, and by the Indenture Trustee on behalf of
the Holders, are made and intended not as personal representations, undertakings
and agreements by First Union and Xxxxxx, respectively, but are made and
intended for the purpose of binding only the Note Issuer and the Holders,
respectively, (c) nothing herein contained shall be construed as creating any
liability on First Union or Xxxxxx,
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individually or personally, to perform any covenant either expressed or implied
contained herein, except in their respective capacities as Delaware Trustee and
Indenture Trustee, all such liability, if any, being expressly waived by the
parties who are signatories to this Agreement and by any Person claiming by,
through or under such parties and (d) under no circumstances shall First Union
or Xxxxxx, be personally liable for the payment of any indebtedness or expenses
of the Note Issuer or the Holders, respectively, or be personally liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Delaware Trustee or the Indenture Trustee, respectively,
under this Agreement; PROVIDED, HOWEVER, that this provision shall not protect
First Union or Xxxxxx against any liability that would otherwise be imposed by
reason of willful misconduct, bad faith or gross negligence in the performance
of their respective duties under this Agreement.
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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.
COMED FUNDING, LLC
By:
------------------------
Name:
Title:
COMMONWEALTH EDISON COMPANY
By:
------------------------
Name:
Title:
Acknowledged and Accepted:
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Delaware Trustee on behalf of
ComEd Transitional Funding Trust
By:
----------------------
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely as
Indenture Trustee
By:
----------------------
Name:
Title:
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